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  • 17May

    Man loses leg in accident caused by his own negligence

    A young man who was seriously injured when his motorcycle collided with another vehicle and who ultimately had his leg amputated as a result of the accident, has been unsuccessful in his claim of negligence against the driver of the other vehicle, with the Supreme Court of Queensland finding the accident occurred because of the young man’s own negligence.

    Background

    At approximately 9.30 am on 15 June 2013, 19-year-old Mr Brown was driving his Kawasaki Ninja 650cc motorcycle near the intersection of FE Walker St and Reddan St, Bundaberg, when he collided with a vehicle driven by Mr Holzberger. Mr Holzberger activated his right indicator and turned right into Reddan St. As Mr Brown was approaching, he hit Mr Holzberger’s vehicle. Mr Holzberger did not see Mr Brown’s motorcycle before the impact.

    Mr Brown suffered serious injury as a result of the accident. He was hospitalised in Bundaberg hospital where he underwent debridement, and was then flown to Brisbane and again hospitalised. He underwent a total of 23 surgical procedures on his injured right leg, including skin grafting with resultant scarring. He subsequently developed an infection, returned to hospital and eventually underwent an amputation below his knee due to sepsis.

    Court proceedings

    Mr Brown commenced proceedings in the Supreme Court of Queensland against Mr Holzberger, in negligence and claimed damages. Mr Brown alleged that Mr Holzberger’s negligence caused the accident. Quantum of damages was an issue in the proceedings, as well as liability. Mr Brown alleged that he did not see Mr Holzberger activate his right indicator. The speed at which Mr Brown was travelling was also in issue.

    His Honour, McMeekin J, found that Mr Brown’s traffic history revealed that he was not averse to exceeding the speed limit; he had to have exceeded the speed limit when overtaking the vehicle in front, and he was plainly not doing “about 60 kph” as he claimed. His Honour found that Mr Brown had not discharged his onus of demonstrating that the accident occurred because of any negligence on the part of Mr Holzberger. Rather the accident occurred because of Mr Brown’s negligence, which consisted of overtaking the vehicle being driven by Mr Kerridge on its left hand side and in contravention of the road rules, when only a short distance from the intersection with Reddan St, and at a great speed. There was no action reasonably open to Mr Holzberger to avoid the accident.

    Accordingly, the court dismissed Mr Brown’s claim: Brown v Holzberger & AAI Limited [2017] QSC 54.

    For more information on the above article contact Joe Bonura on 02 4626 5077 or jbonura@marsdens.net.au

    This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices