Experienced motorbike rider injured in collision with
As the judge noted, it was a case that "could only have
taken place in Australia". A motorbike rider who had borrowed
the motorbike from his friend was travelling along an unsealed dirt
road from Noccundra through Hungerford in Queensland, to Bourke in
NSW, when a kangaroo bounded out onto the road and collided with
The rider was thrown from the motorbike onto the ground, landing
heavily on his right shoulder, and lost consciousness.
Rider of motorbike brings legal action against its owner
The motorbike rider brought a legal action against his friend,
the owner of the motorbike, and the friend's third-party
insurer. The basis of the claim was that the motorbike rider had
been injured in a "blameless accident", as defined by the
Motor Accidents Compensation Act 1999, and that,
according to the statute, he was entitled to claim for damages via
the third party insurance policy held by the owner of the
case a - The case for the motorbike rider
case b - The case for the motorbike owner
I had been travelling at 90-100 kilometres per hour, which was
within the speed limit and a safe, appropriate speed for an
unsealed road with corrugations. A dirt bike at that speed glides
across the top of a corrugated road surface. At a lower speed it
rides into the bumps and skids dangerously over the road.
I am a very experienced rider, was riding a bike designed to
handle uneven roads and was keeping a close watch on the road
I only noticed the kangaroo when it was about 20 metres away
and couldn't have spotted it earlier because it blended into
the surrounding terrain.
I was not to blame for the accident and I should be compensated
for the significant injuries that I've sustained.
The speed at which the rider was travelling was too fast to be
safe on an unsealed road.
The rider did not notice the kangaroo earlier because he failed
to keep a proper lookout on the road ahead. This has to do with his
speed. He would have been more likely to see the kangaroo earlier
if he had been travelling more slowly.
For these reasons, the rider was negligent. This means that the
accident was not a "blameless accident" and the rider has
no grounds for claiming damages for his injuries from the
In any case, the laws related to blameless accidents exclude
the possibility of claims by drivers of motor vehicles (or riders
of motorcycles) where the owner was not involved in the use or
operation of the vehicle at the relevant time.
So, which case won?
Cast your judgment below to find out
Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).