Kickbusch v Lehane & Anor
[2022] QDC 16 · Byrne QC DCJ
Steven Kickbusch, a 47-year-old QUT learning designer who was also studying for a PhD, was riding a small motorcycle when he collided with a truck towing a trailer at the Coronation Drive and Park Road intersection in Brisbane in November 2016. He attempted to overtake the truck on the right within a single lane when the truck suddenly turned sharply to the right and struck him, knocking him off his bike. He suffered a whiplash neck injury, ongoing headaches, and shoulder and other injuries. The insurer denied the driver was at fault and argued the plaintiff caused the crash. The judge found the truck driver mostly to blame for the sudden turn without checking mirrors or signalling, but also found the plaintiff 40% responsible for overtaking too early. After assessing his injuries and economic losses (including lost opportunity to finish his PhD and earn higher academic pay), the court reduced the total of about $288,000 by 40%, awarding him $173,085.25.
Incident & injury
Motorcyclist overtaking a truck towing a trailer within a single marked lane when the truck turned sharply to the right, striking the motorcyclist and causing him to fall to the roadway
- Body regions
- Cervical spine, Right shoulder, Lumbar spine, Arm (haematoma), Chest/ribs, Head (concussive)
- Diagnoses
- Whiplash injury of cervical spine (AMA5 DRE Category II), Soft tissue injury right shoulder, Lumbar spine soft tissue injury, Haematoma to arm, Chest/rib injury, Cervicogenic headaches, Concussive head injury
- Incident date
- 1 November 2016
- Location
- Intersection of Coronation Drive and Park Road, Milton, Brisbane
Quick facts
- Date of judgment
- 14 February 2022
- Claim type
- MAIA
- Proceeding
- Trial
- Plaintiff outcome
- Partial
- Plaintiff age at injury
- 47
- Occupation
- Learning designer at QUT (undertaking PhD) Professional
- Liability
- Disputed · 40% contributory negligence
- ISV assessed
- 11 uplift applied · Item 88 Schedule 4 Civil Liability Regulation 2014 — Moderate cervical spine injury (soft tissue)
- Whole Person Impairment
- 6%
- Total damages
- $173,085
Outcome
The court found the first defendant truck driver negligent for turning sharply to the right within a single lane without checking for or giving way to the plaintiff motorcyclist, but assessed the plaintiff 40% contributorily negligent for overtaking too early in the truck's turning manoeuvre. Damages were assessed at $288,475.41 before reduction, with judgment entered for the plaintiff in $173,085.25.
Defendants (2)
Under the Motor Accident Insurance Act 1994 (Qld), the CTP insurer (Allianz Australia Insurance Limited) is the actual payer of the judgment. The insured driver is named on the judgment but is not personally liable to satisfy it — the CTP policy responds.
1 Jason Thomas Lehane
Driver (tortfeasor)
- Apportionment
- 60%
- Judgment against this defendant
- $173,085
Heads of damage
| General damages | $17,760 |
|---|---|
| Interest on general damages | $0 |
| Past economic loss | $24,000 |
| Interest on past EL | $315 |
| Past superannuation | $2,280 |
| Future loss of economic capacity | $171,396 |
| Future superannuation | $20,021 |
| Past care (Griffiths v Kerkemeyer) | $14,386 |
| Interest on past care | $0 |
| Future care | $4,500 |
| Past special damages (plaintiff) | $17,509 |
| Interest on past special damages | $172 |
| Future special damages | $15,937 |
| Subtotal before refunds | $288,475 |
2 Allianz Australia Insurance Limited
CTP Insurer
- Apportionment
- 60%
- Judgment against this defendant
- $173,085
Heads of damage
| General damages | $17,760 |
|---|---|
| Interest on general damages | $0 |
| Past economic loss | $24,000 |
| Interest on past EL | $315 |
| Past superannuation | $2,280 |
| Future loss of economic capacity | $171,396 |
| Future superannuation | $20,021 |
| Past care (Griffiths v Kerkemeyer) | $14,386 |
| Interest on past care | $0 |
| Future care | $4,500 |
| Past special damages (plaintiff) | $17,509 |
| Interest on past special damages | $172 |
| Future special damages | $15,937 |
| Subtotal before refunds | $288,475 |
Key issues
Kickbusch v Lehane & Anor [2022] QDC 16
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