The issue in court was whether Spencer had lost control of the motorbike due to speed or the truck not indicating.
The issue in court was whether Spencer had lost control of the motorbike due to speed or the truck not indicating.

BIKE LOSES CONTROL: Burnett Hwy crash appeal dismissed

AN APPEAL involving a traffic incident between a truck and a motorcycle has been dismissed in the Supreme Court of Rockhampton.

Dating back to February 21 2013, the event occurred on the Burnett Highway near Eidsvold, where then 45-year-old Christopher John Spencer was riding his Yamaha motorcycle.

Around 7.45am Spencer attempted to overtake a Kenworth T401 truck and dog trailer driven by appellant Noel Stanley Downie, when he allegedly lost control as a consequence of having to avoid a collision with the turning truck.

Downie had been attempting to turn from the highway into the driveway of a fuel depot.

As a consequence, Spencer braked, lost control of his motorcycle, skidded off to the right hand side of the road, and landed in a drain, suffering injuries.

Spencer recalled the incident, and the shock moment before he dismounted his bike.

"I thought 'oh my God, this guy is going into this driveway', and that's when I thought I was going to head straight under the truck," he said.

After he quickly applied the brakes, Spencer admitted to having lost consciousness once the bike fell underneath him.

"I don't remember anything after that except for getting walked out of the ditch."

What was at issue in court was whether Spencer had lost control of his motorcycle due to Downie not indicating to turn right, or whether Spencer had lost control due to travelling at an excessive speed and over-braking.

Honourable Justice and Primary Judge David Boddice found the incident and consequential injuries were due to Downie's negligence, claiming he failed to activate his indicators, failed to keep a proper lookout for vehicles, and attempted to turn into a property when it was not safe to do so.

Judge Boddice also found Spencer was not contributorily negligent to the incident.

In his findings, the judge found Downie's versions of events were "based on reconstruction" and "not recollection".

He found that his evidence contained "substantial inconsistencies", including differing versions of events.

Downie and his insurer, AAI Limited, appealed this decision, requiring the court to conduct a "real review" of both the evidence at trial, and Judge Boddice's reasoning.

Conducted by Honourable Justices Anthe Philippides and Philip Morrison, they highlighted the conflicting accounts of the activation of the indicators, saying the "discrepancy was startling".

They went on to debate whether the "first appellant genuinely had a recollection of the events on the day of the incident".

They rejected Downie's version of events, saying there was "good reason" to accept Spencer's evidence as to the circumstances of the incident.

On orders by the Judges Morrison and Philippides, the appeal was dismissed, with parties given leave to deliver any submissions on costs.