Category

Road Accident Claim

motorbike accident lawyer
By | Road Accident Claim

Introduction

Motorcycle use in Australia has been steadily increasing since the early 2000s but the percentage of motorcycle registrations only account for around 4.5% of all passenger vehicle registrations. However, motorcycles account for a shockingly disproportionate number (around 15%) of all road crash deaths. Of those road deaths, alcohol and drugs were a causal factor in the accident 46% of the time. It’s a fact which reinforces something we all already know: drinking and driving do not mix.

Below we examine the facts in a case of a motorcycle death where alcohol was a factor and the question of fault was the Court’s chief concern.

Summary

After a night of heavy drinking, a couple of friends decided to take a 5am ride on their off-road motorcycles. The trail bikes were both unregistered and neither had headlights, despite the friends taking them onto a public road. Though the plaintiff was an experienced trail bike rider, he was unlicensed. The two friends were involved in a head-on collision while travelling from opposite directions on the road.

The crash occurred around 1.5 metres from the centre of the road on the plaintiff’s side, and both bikes collided on their left sides. This means that the defendant’s bike strayed across the path of the plaintiff’s bike prior to collision. Both plaintiff and defendant were intoxicated, but only the defendant was determined to be moving in excess of the speed limit.

Though the plaintiff was the only one wearing a helmet, he still suffered extreme injury. The plaintiff had his left leg amputated and lost the use of his left arm. Because the defendant was unregistered and uninsured, the plaintiff had to sue ‘the Nominal Defendant’, which is the stand-in entity for unregistered or uninsured vehicles.

Defendant

The defendant argued that the plaintiff was not owed a duty of care because the plaintiff had knowledge of the defendant’s intoxication. The defendant argued that even if the plaintiff was owed a duty of care, he contributed so extensively to the accident that his right to compensation should be reduced by 100%.

Furthermore, both the defendant and the plaintiff were willingly engaged in illegal activity (riding unregistered trail bikes while heavily intoxicated, and the plaintiff was unlicensed) and thus were both guilty of “joint illegal enterprise”. Because of their joint breach of criminal law, the defendant argued that the plaintiff was not entitled to claim compensation.

Plaintiff

The plaintiff accepted that he and the defendant were both at fault for the accident, but that the defendant was far more at fault and thus still owed the plaintiff a duty of care. The plaintiff reasoned that the defendant was more liable for the accident because, but for the defendant’s negligence in drifting to the plaintiff’s side of the road, the accident would not have happened. Unlike the plaintiff, the defendant failed to use a helmet, failed to maintain an appropriate speed, and failed to stay on his side of the road. The plaintiff argued that while his own actions contributed to the accident, it should only reduce his compensation claim by 25% because the defendant was 75% at fault.

Conclusion

The District Court and the Court of Appeal both ruled in favor of the plaintiff. They found that it was clear that the defendant’s failure to stay on the opposite side of the road was the primary cause of the accident, and it could have been avoided had he exercised reasonable care. While the defendant owed a duty of care to the plaintiff, the plaintiff was not completely absolved of fault. Thus the Court reasoned that the plaintiff’s right to compensation should be reduced by one-third (33%) for contributory negligence.

unregistered car accident
By | Road Accident Claim

Most people are aware that if they are involved in a motor vehicle accident and sustain serious injuries, a compensation claim may be available to them. Generally, if fault can be established, then the injured person is entitled to make a compensation claim against the at fault vehicle’s CTP insurer. However, what happens when the at fault vehicle is uninsured and not registered or if the vehicle has fled the scene of the accident and cannot be identified? This article will aim to answer those questions and give a brief overview of what happens in such a compensation claim.

The Nominal Defendant was created by the Queensland Government in 1961 so those injured in motor vehicle accidents involving unregistered, uninsured or unidentified vehicles were not disadvantaged in any way. There is, however, different limitations and restrictions placed on such claims.

A notice of claim generally must be given to the CTP insurer within 9 months of the date of accident or be accompanied by a reasonable excuse for delay. If, however, the accident involved an unidentified motor vehicle, the notice of claim must be given to the Nominal Defendant strictly within 9 months or the claim against the Nominal Defendant will be statute barred. This means you will be barred from ever bringing a claim and you will lose your entitlement to compensation.

In a personal injury claim involving an unidentified vehicle a claimant is under an obligation to perform proper search and inquiry according to section 31(2) of the Motor Accident Insurance Act 1994 (Qld). This requires the claimant to perform searches/inquiries in an attempt to identify the vehicle. This may include letter box drops, publishing a public notice in the local newspaper and/or speaking with any potential witnesses. If a proper search and inquiry has failed to identify a vehicle then a claim against the Nominal Defendant will be accepted.

It is interesting to note that there are serious implications if you have been driving an unregistered and uninsured vehicle and are at fault for an accident. After a personal injury claim has resolved the Nominal Defendant could then pursue you for the damages they were required to pay to the injured claimant. This could amount to hundreds of thousands of dollars if a person is seriously injured. As such, it is extremely important to make sure you pay your registration on time to ensure your vehicle is insured.

Strict time limits apply to claims involving the Nominal Defendant. So, if you have been involved in an accident where you believe an uninsured, unregistered or unidentifiable vehicle is at fault it is in your best interests to contact a personal injury lawyer in Gold Coast immediately to avoid losing your right to compensation.

car accident lawyers gold coast
By | Road Accident Claim

Most people have never been involved in a car accident and for some people that will stay that way. Unfortunately, through no fault of your own, there is a high chance that during your lifetime you will be involved in at least one car accident. Being involved in a car accident can be an extremely traumatic experience. If you have never been involved in an accident you will likely have no idea what to do and this may cause you to panic.

To avoid that, we have devised a number of simple tips for you to follow if you are ever involved in an accident.

  1. Stay calm, keep your cool and don’t panic;
  2. Maintain the safety of yourself and others;
  3. Call 000 if you or anyone involved has suffered any injuries or there is significant damage;
  4. If possible, move your car to the side of the road where it is safe. However, if you are unable to do this put your hazard lights on and remain inside the vehicle;
  5. If you are able, once the vehicle has been relocated to where it is safe, exchange details, take photos of the accident scene, the vehicles involved, the other person’s licence and any injuries if visible;
  6. See a doctor as soon as possible and report all injuries, no matter how insignificant they may seem; and
  7. Seek legal advice as strict time limits apply.

We hope these simple tips are helpful and give you a better understanding of what you should do if you are ever involved in a car accident. If you have been injured in a car accident and believe you may be entitled to compensation please seek urgent legal advice as strict time limits apply.