Brown v Holzberger [2017] QSC 054 ; [2017] 16 QLR (16/5) McMeekin J 12 April 2017

In a June 2013 collision in downtown Bundaberg, a driver turning across oncoming traffic claims, never to have seen the oncoming vehicle. The other driver, claims the turning vehicle drove across their path without warning, making a collision unavoidable.

Both versions can’t be right.

Ashley Brown claimed the Hyundai 4WD turned in front of his motorcycle when he was “only a car length or two away”. This was at odds with the recall of Robert Holzberger who was travelling from the opposite direction and did not see the Kawasaki Ninja 650cc motorcycle before he commenced his turn into Reddan St.

Brown sued Holzberger for the consequences of his serious injuries, including a below knee amputation of his left leg.

When the matter came before Justice McMeekin, Mr Holzberger version was corroborated by a retired policeman and his daughter who saw no motorcycle within the distance of about 80m after they stopped at the intersection, waiting for the 4WD to turn.

Both thought it “had ample time to make the right hand turn”, but how could that be if Mr Brown were riding his motorcycle along Walker St towards the Reddan St intersection at just 60kph?

Unfortunately for Mr Brown, he had been observed just moments earlier by a “very experienced motorcyclist” travelling in the same direction speeding off from stop lights at the two preceding intersections to a speed of about 80kph and zigzagging to warm up his tyres. The occupants of another car he passed just 50m private intersection swore he overtook them “like a bullet out of a gun, barely 2 seconds” before the collision. Other factors taken into account were Brown’s Facebook “boasts to friends about driving inappropriately on the road” and his disregard for road rules evident from four prior speeding fines.

It was open for the court to find either that the accident was caused by Mr Brown’s excessive speed or by Mr Holzberger’s “staggeringly incompetent” looking out. Not unsurprisingly the court reasoned it was most likely Mr Brown’s excessive speed.

That’s why Mr Holzberger hadn’t seen the bike before starting his turn and why Mr Brown had insufficient distance in which to stop or swerve after seeing the turning vehicle.

The court went on to take a precautionary assessment of damages in the total sum of $892k including loss of future earning capacity for the 23-year-old at $500k.

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