August 2, 2015

They arrived in Melbourne from a bitterly cold UK winter just two weeks earlier and were making their way north along the coast basking in Queensland’s December warmth.

One place not to be missed was Seventeen Seventy, the idyllic township on the eastern end of Bustard Bay into which James Cook navigated the Endeavour before coming ashore for only the second time, in May 1770.

They – Johnathan Davey (driver) and Samantha Styles (passenger) – had hired the campervan in Melbourne and were saying goodbye to Seventeen Seventy in an attempt to make 700km to Airlie Beach before nightfall.

Only a few minutes later that morning – the day before Christmas Eve 2012 – Mark Wynne and wife Salle-Anne departed Agnes Water by motorcycle for breakfast in Rosedale. They were riding in tandem with friend Daniel McGarry and his daughter.

The touring parties were motoring south on Tableland Road but unbeknown to the riders and their pillion passengers, the British tourists missed their turn-off to the west that would have taken them to the Bruce Highway and out of their path.

Just after the missed turn-off, the campervanners pulled over towards the shoulder just ahead of a bend in the road to the left.

Their first U-turn attempt almost put the van into the path of a Nissan Patrol coming north from Bundaberg. The 4WD that also carried the driver’s wife and three children, had to break heavily – as the van was reversed – allowing it to avoid impact.

But just as soon as the van retreated, “it had another go at its U-turn” at the same time as the motorcyclists had caught up ground from behind and the Wynnes’ machine was passing around it.

The “bike had nowhere to go” and slammed into the driver’s side of the van near its front, resulting in Mark and wife being thrown off with significant injuries. Fortunately, Daniel and his daughter who were following close behind, escaped the pile-up and any injury.

But when the husband and wife pair made injury compensation claims, the Brits came up with a different version of events.

Davey swore during the course of the 6-day trial that he was merely turning right into a clearing and there was plenty of room in the southbound lane for Mark Wynne to pass on his bike had he kept to the left.

It was Wynne’s mistake, Davey claimed, for overtaking to the right of the van when it was signaling to turn in that direction.

But those assertions were against the evidence of the passing 4WD driver and both motorcycling parties.

Davey and Styles were found by Supreme Court Justice Martin Burns to be “unsatisfactory witnesses”.

Both were “unduly argumentative,” he wrote “reluctant to entertain the notion that some aspects of their version might be wrong, let alone to consider the making of reasonable concessions.”

In the court’s judgement, it was Davey who principally at fault to the extent of 85% for conducting “a particularly dangerous manoeuvre… without looking… knowing there was a motorcycle travelling towards his position”.

Wynne was held partly responsible but only to the extent of 15%, for overtaking a vehicle that was indicating an intention to turn, at a speed too fast to take evasive action.

The extent of damages payable by NRMA – the van’s insurer – was agreed before trial and not disclosed in the judgment. It is understood however that the Wynne’s claims were in excess of $1 million.

Wynne v Davey & Anor [2015] QSC 200 Burns J 17/07/2015

Categories: Personal Injury , Litigation & Law Practice

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