Written by Peter CarterApril 27, 2015
A bicycle, a tip truck, a utility and a motorcycle were proceeding in line, south along a flat straight stretch of Jacobs Well-Stapylton Road in April 2011.
The ute was the first to overtake the tipper.
Gilbert Veyt then moved his motorbike across the centre line to get a view of what was ahead.
Judging the way in front clear, he accelerated to overtake but once alongside, the truck also moved sharply across in the same direction – for reasons unknown to the rider – to provide a safe distance between it and the bicycle on the left verge that the tipper was then overtaking.
Veyt – alarmed by the tip truck’s manoeuvre – throttled off to drop back behind it but in the course of doing so, lost control and fell with the bike to the roadway.
He sued the truck driver – Lyle Stevenson – for his resulting neck and back injuries.
Stevenson ought – he contended and Judge Richard Jones agreed – to have checked his rearview mirror immediately before shifting out to his right. Had he done so would have at least seen the plaintiff, especially given that Veyt had his headlight on.
And had he indicated “at an earlier time, his intention to move would likely have been seen and would have given Veyt the opportunity to delay his overtaking manoeuvre.”
But what of the motorcyclist’s actions? Should he bear some, even the greatest responsibility because – as a following driver – he would ordinarily have had an opportunity to take evasive measures to neutralise the preceding driver’s error?
Judge Jones ruled Veyt to have been in too much of a hurry to overtake and by travelling so close to the rear of the truck, he was often within its blind spot; by travelling so close to the centreline, he denied himself an opportunity to see the cyclist to the left of the carriageway ahead.
Clearly be should bear some fault for what happened.
But the court cautioned against “overemphasising the responsibility of the following driver for the importance of that driver’s opportunity to avoid the risk created by the carelessness of another”.
While the plaintiff was a “follower,” the first defendant was in charge of a large heavy vehicle capable of causing serious injury and damage and had indeed been negligent.
“A driver in such a situation must be alert for other drivers including those who may not themselves be complying with the rules of the road”.
Liability was apportioned 25% as to the rider and 75% as to the driver of the truck.
In assessing general damages for the 51-yr-old Veyt, a starting ISP value of 10 was accepted having regard to his 8% right wrist injury (13% arm). Because that did not adequately reflect the full extent of the level of impact caused by the multiple injuries, the court considered whether the maximum in that range (ISV 15) was still “inadequate to reflect the level of impact”.
Deciding that it was inadequate – because of the requirements for daily narcotics for pain relief – the judge allowed a modest uplift of 15% to an ISV of 17.
This translated to a modest $25k in general damages.
Future global economic loss was allowed at $50k bringing home a total assessment – including $20k for past and future care – of $146k.
Applying the 25% reduction due to Veyt’s own negligence, judgment was entered against QBE – as Stevenson’s CTP insurer – for $110k.