A car driving on the wrong side of the road changed Gary’s life forever. Even though there wasn’t a collision, and even though the car was never found, find out how Gary recovered $4m in compensation.

Gary was a 22-year-old mechanic working in Morayfield, Queensland.

He had recently proposed to his girlfriend, Gemma.

One Tuesday in his lunch break, Gary set out on his motorbike to join his fiancée who was working nearby as a strawberry picker. It was a fine day, the roads were mostly clear, and Gary was in no great rush.

He certainly didn’t expect what happened next.

Gary was travelling along a bitumen road with a sweeping curve to the left, followed by a sweeping curve to the right. He carefully turned through each of the curves and then looked up at the straight stretch of road ahead of him.

That’s when he spotted a car. The car was travelling in the opposite direction, quickly getting closer to Gary.  But something wasn’t right. The car was two-thirds into Gary’s lane, and wasn’t getting out of the way.

Gary grabbed his brake and veered to the left to move out of the car’s way. He rode onto the gravel strip next to the road, successfully avoiding the car, but hit a concrete water pipe. Gary was thrown into the air.

The next thing Gary remembered was lying on the ground. Then he lost consciousness.

Gary sustained a fractured vertebrae, causing tetraplegia (permanent paralysis of the limbs). His life changed forever.

Gary was only 22 and faced a new life full of challenges.

He lost the ability work and look after himself. His freedom to do what his loves was gone.

Gary was completely reliant on his fiancée to complete all of their household chores including helping him complete simply daily tasks like showering and getting dressed.

On top of that, being able to afford their dream wedding was the least of their problems. The couple now had to work out how they can afford Gary’s growing medical and care bills with just one income.

He kept driving, leaving Gary paralysed on the side of the road. 

Gary recalled the car was white, but was unsure about the make. Police placed an advertisement in the local newspaper about a month later asking any witnesses to come forward, but information about the car was limited.

A woman driving with her husband some way down the road saw a light coloured car travelling toward them, before they saw Gary and his motorbike fly into the air in the distance. They rushed to Gary’s aid, but could not remember any details about the car.

The car, and it’s driver, were never found.

But what happens if you don’t know who the driver is?  How can you get the compensation you deserve?

Thankfully the government has recognised this gap and has provided an avenue for people like Gary to claim compensation under the Nominal Defendant.

Much like a claim under the CTP insurance scheme, a claim under the Nominal Defendant can provide an avenue for financial support. In cases like Gary’s, where an entire income has been lost and ongoing medical and care costs can be astronomical, this support can be invaluable.

Gary brought proceedings against the Nominal Defendant for compensation for his injuries.

The Nominal Defendant argued two things:

With few witnesses to back up what happened, proving his story became difficult.

The Nominal Defendant claimed that there was no car, OR, if there was a car, it did not cause the accident.

It based this argument on the fact that Gary had told different versions of his story to different people. The Nominal Defendant alleged that Gary was upset about his injuries and so he made up a story about a car causing the accident.

The Court held that the accident did happen as Gary claimed.

While Gary did give inconsistent statements about the accident, the inconsistencies could be explained by looking at the context of the statement.

For example, it is understandable that Gary’s story-telling might not have been perfect when he was lying on the side of the road being helped by paramedics. Similarly, one can see how he might have missed a detail when he was sitting in a hospital bed in shock and pain, when explaining his injuries to his employer, and when being interrogated in court quite sometime later.

The Court decided that Gary’s inconsistent statements were probably due the circumstances in which he gave the statements, and not due to deceit.

The Court accepted Gary’s version of events, concluding that:

The Nominal Defendant argued that if a car was involved, Gary contributed to the accident (and his injuries) by:

Thankfully, the Court held that Gary was not contributorily negligent.

There was simply no evidence to support any allegation that Gary was travelling too fast for the circumstances, or that he was not taking proper care.

The Court accepted that Gary was presented with a dangerous situation requiring evasive action. His reaction, in avoiding the car, was responsible.  

The Court said that:

The Court awarded Gary $4 million in compensation, with no reduction for contributory negligence.

Gary found himself in a situation where he had almost no one to back up his story. Ultimately, the Court had to decide whether to trust Gary.

Fortunately, Gary followed all the right steps. He:

As a result, the Court accepted Gary’s evidence and awarded him the compensation he deserved.

Unfortunately, this doesn’t happen in every case. We know from experience that persuading the Nominal Defendant or the Court into accepting the facts of an accident can be very difficult.

Conducting a ‘proper search and enquiry’ can be rigorous, and locating witnesses or supporting evidence is sometimes impossible.

Gary put forward all the evidence he could gather and ended up with a good result.