March 21, 2022

Determining what happened and who was responsible for a car or motorcycle crash is often confounded by differing accounts as to the position of vehicles and their paths leading up to the point of impact.

The qualifications of and scientific method adopted by accident reconstruction experts – who reach conclusions by mathematical extrapolation from measurements taken and observations made at the scene – is often called into question.

Exactly that recently occurred in the District Court in Brisbane in relation to a peak hour commuter accident in Brisbane’s inner west.

The accident occurred in November 2016 after Steven Kickbusch – riding a Honda CT 110 motorcycle – followed a truck towing a trailer from a stopped position in the outbound turn lane of Coronation Drive into Park Road at Milton.

Kickbusch – aged 47 yrs – sustained serious injuries to his neck, back and shoulder after being knocked from by the truck his motorbike to the roadway surface while on his way home from work at QUT.

He contended that the truck had swung wildly to the right as he attempted to overtake.

Jason Lehane – the truck’s driver – on the other hand, recounted that the motorcycle had collided with the side of the truck for no apparent reason.

Kickbusch engaged mechanical engineer Ray Hope to support his contention that it was the driver of the truck/trailer was wholly responsible for the collision.

Dr Hope took the accepted starting positions of each vehicle on Coronation Drive and the accepted resting position of the truck and by assuming the point of impact was at or near that location, deduced the course of each vehicle leading up to the impact.

CTP insurer Allianz asserted that such an opinion was inadmissible on grounds that the engineer’s conclusions were speculative and the methodology was not within his expertise.

Judge Michael Byrne agreed there was nothing in the expert’s opinion that required “the application of special knowledge, expertise or experience” and that “the court was in as good a position to determine such matters as anyone else”.

To show what he meant, His Honour undertook a view of the scene during the three-day trial and describes the intersection in detail in his 35-page reasons for judgement.

He accepted the motorcycle rider’s account of having – after rounding the turn – maintained a line of travel on the right-hand side of the northbound lane of Park Road at all times.

In doing so, he noted the single marked lane was wide enough to accommodate two vehicles and the “illogicality” of the motorbike deviating towards the truck.

He also concluded that the angle at which the truck came to rest – relative to the direction of travel – compelled a finding that Lehane turned the truck sharply to the right without indicating, thereby failing to give way to the motorbike and to take precautions against causing harm to other motorists as he was required to do.

Judge Byrne though apportioned 40% responsibility for the accident upon Mr Kickbusch for attempting to overtake the truck/trailer while it was “too early in the combined vehicle’s turning manoeuvre” to assess its path of travel up Park Road.

The only point on which the expert’s report was allowed in evidence was with respect to the resting position of the truck derived from photos taken on the day of the collision.

As a result of the injuries, the plaintiff could not undertake his PhD studies to the same standard and with the same efficiency as before and risked missing a cut-off date for submission of his thesis.

His Honour accepted that he will likely require treatment and medication for headaches and neck pain – that significantly restrict his ability to perform his work and his studies – for the rest of his life.

A 6% WPI of the neck yielded an ISV of 8 which was upgraded to 11 after considering pain and other injuries. That resulted in general damages at just $18,000 and loss of past and future income of about $200k.

The total award of $288,000 was reduced by 40% to arrive at a figure of $173,000 which Allianz was ordered to pay the unfortunate motorcycle commuter.

Kickbusch v Lehane & Anor [2022] QDC 16 Byrne QC DCJ, 14 February 2022

Categories: Motor Cycle Accident

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