In August 2014 the plaintiff sustained personal injuries in a motor vehicle accident. The plaintiff was riding his motorcycle behind another two riders on a single lane road when he collided with the insured’s oncoming vehicle.
Pursuant to ss 132, 133 Transport Operation (Road Use Management – Road Rules) Regulations 2009 (Qld), on narrow roads motorists, are required to move their left-hand side of the bitumen and so share the centre strip. The plaintiff alleged that the defendant did not move his tyres off the bitumen while the defendant contended that they had done so.
Liability – Res Gestae Exception
In determining the positioning of the motorcycle and the defendant’s vehicle, the plaintiff sought admission of the statement “[t]he prick didn’t give us any road” made by the second rider to the lead rider. After reviewing the authorities, particularly the dicta of Kirby P (as he then was) in Sydney Electricity Authority v Giles, his Honour was not satisfied that the statement fell within the exception:
 In my opinion the statement allegedly made by Mr Smith is neither spontaneous nor contemporaneous and because of that I can have no assurance of the reliability and veracity of the statement.
 The statement was more in the nature of a narrative after the event and not an instinctive reaction to the event. It was made after Mr Smith had continued along the road for whatever distance it took him to pull up safely off the road, park and dismount from his bike and for Mr Moyle to do the same and then walk back to him…
Liability – positioning of the vehicles
Ultimately McMeekin J was satisfied that the defendant moved the left of his wheels off the bitumen strip leaving half of the bitumen to the motorcyclists. His Honour accepted that in an attempt to avoid the motorcycle in front of him, the plaintiff veered to his right and by doing so ran into difficulties with the defendant’s vehicle. In reaching this conclusion, his Honour stated as follows in relation to the difficulties in the plaintiff’s case:
 The first difficulty is that the case relies on the reliability of the versions of Mr Moyle, Mr Smith and Mr Schofield. They each claim that they observed Mr Hopman’s vehicle to be in the centre of the bitumen strip at all times without deviation. It is certain that he did not do that. If he had done so there is no prospect that the first two motorcycles would have passed him – the strip is too narrow…
Both the plaintiff and the defendant gave evidence to the investigating police officer independently after the incident. It was crucial to his Honour that the plaintiff veered to his right before contact with the defendant’s vehicle. Of the evidence to the investigating officer, his Honour stated:
 … In those versions they each agree that Mr Schofield veered to the right in an attempt to avoid the motorcycle ahead of him. The co-incidence of their versions provides compelling evidence that the point is accurate. This finding of course means that I am not satisfied as to the reliability of Mr Schofield’s evidence in which he denied that movement.
And in relation to an interview carried out during the plaintiff’s hospitalisation:
 Senior counsel for Mr Schofield was critical of the constable interviewing Mr Schofield when he was still hospitalised. I reject that criticism. There is no evidence at all that Mr Schofield was not able to be safely interviewed when he was. He assured the constable when she enquired that he was “right to give [her] a version and answer some questions.” He had been seen by visitors the day before, the point being that witnesses presumably exist who could speak as to his coherence at that time.
As to the width of the bitumen, McMeekin J accepted the evidence of the on-scene police officer, in addition to her experience with the road:
 For the plaintiff’s case to succeed the bitumen strip must be wider than 3.5 metres. To allow for the known widths of the motorcycles, the width of the van with extended mirrors, the jagged edges which would certainly cause vehicles to be some distance in from the edge, and the gap that existed between the first two motorcycles and the van, the bitumen would have to be at least 3.6 metres wide.
 But taking the evidence at its highest the bitumen width is very likely less than 3.5 metres.
 The plaintiff himself thought that the bitumen was only wide enough for one vehicle. Mr Moyle thought the width was 3.2 to 3.4 metres but he was working backwards from his claim that the caravan did not leave the bitumen. However the most cogent evidence of the width came from Senior Constable Richardson. She thought that the caravan and bikes could not have passed one another with all vehicles remaining on the bitumen. As I have said I found the constable to be reliable and I thought particularly so with respect to the width of the bitumen.
 Quite apart from her experience with the road, she was at the scene in her professional capacity investigating a serious accident. She had the advantage of seeing the width of the bikes and the width of the van when present at the scene. She was under a duty to ensure that her observations were accurate.
McMeekin J also took into consideration that the defendant had been travelling on that road for over two hours and had passed other vehicles. His Honour accepted that the insured had given way to other vehicles as they passed.
Judgement was given for the defendant and insurer, his Honour holding that the plaintiff failed to discharge the onus on him. As concluded by his Honour:
 The plaintiff has failed to discharge the onus on him. I am satisfied that Mr Hopman moved the left wheels of his vehicle off the bitumen strip and left about one-half of the strip to the motorcyclists. The first two motorcyclists passed by safely. Mr Schofield got himself into difficulties when he veered right to avoid Mr Smith’s motorcycle. He was not paying attention and so failed to observe the motorcycle ahead slowing.
 As I have mentioned no case was advanced that Mr Hopman was negligent on the ground that while he left the bitumen he did not get far enough off the bitumen. There is no satisfactory evidence on which I could make any such finding even if advanced.
David Cormack – Brisbane Barrister & Mediator