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Payout refused on parking fall damage

Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.

Toowoomba riding trainer Tony Gallagher watched as his 2001 Kawasaki ZRX1200R sunk into thin bitumen and then fall over in a Crows Nest main street parking bay.

The incident caused about $1700 in damage to his bike that he uses in his business and ruined his $600 Shoei helmet.

To add insult to “injury”, Toowoomba Regional Council insurance officer Josie Hooper says council is not liable for compensation.Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.

“Under Section 37 of the Civil Liability Act, a road authority such as Council cannot be held liable for claims that arise out of alleged lack of maintenance, repair, or inspection of a road if, at the time of the damage, the road authority was unaware of the defect which allegedly caused the damage,” she says in an official letter to Tony two months after his complaint.

The bike was parked in a car parking bay, not one of the 16 special motorcycle bands allocated when Crows Nest became a Queensland’s second motorcycle friendly town in 2017.

Crows Nest Motorcycle Friendly Town spokesman Ron Anderson says he is not aware of any other motorcycles falling over in parking bays in town.

Fall from grace

Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.
Tony Gallagher

“The bike was parked for at least 10 minutes, maybe 15, before falling over. I saw it fall over,” Tony says.

“The bitumen beneath the sidestand failed and the stand sunk into the ground several inches.”

Tony contacted council who patched the hole before he left town on the day.

Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.
Patch repair

“The staff member who did the repair apologised to me,” Tony says.

“I would argue that they could have reasonably known that there was a fault with the road surface as there have been issues with the adjoining footpath and kerbing.

“As TRC are fully aware of these issues, the quality of the road surface where vehicles park should have been investigated and rectified prior to this incident. As such TRC have breached their duty of care.

“I went back the following Monday on my GPZ and noticed parks further up the hill are decaying — not obvious in the park I was in.Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.

“Hardly a ‘Motorcycle Friendly Town’ if you can’t park your bike safely.”

Tony says the bitumen was about 10mm thick with mud underneath and suspects an underground water problem.

He returned to the site this week and says there is moisture coming from the patched repair.

The incident occurred on a mild April day, so there was no problem with melting tar.

Tony says he has witnesses who can prove his bike did not roll off the stand and was parked facing uphill.

Many riders put down a squashed soft drink can or some other sort of “puck-style” item for their stand on soft ground.

However, you wouldn’t think you would need one on this asphalt surface!

No liability

Legal precedence shows that council is cannot be held liable if they did not know about the damage.

In her letter to Tony, Josie says their investigations found that council was unaware of “the specific characteristic of the road and/or car park you say caused the damage to the motorcycle”.

TRC says riders can report road damage to Customer Service on 131 872. Customer Service will create a ticket in the system to have the incident investigated by the relevant team in Council.

  1. In todays world of litigation and personal accountability I am constantly amazed that councils and governments responsible for our roads are legally no accountable for the condition of said roads. Some potholes and sunken sections on our road network pose a major safety hazard for not only motorcyclists but to all road users. Imagine a large pothole mid corner that throws you into the path of oncoming traffic? Ride to conditions is one thing, but sometimes road damage can be hidden by shadows… There really is no other service provider (what our road crews are) that is not held legally liable for accidents caused by poor maintenance of their product. You can guarantee that if this had occurred in a private shopping centre carpark, the centre owners would be liable. It’s a complete joke!

  2. The thing is there was no damage to report at or just prior to the relevant time. It should be argued that the council is at fault for the poor shoddy construction of the parking bay. That you or another could not reasonably be expected to know of the poor construction. And that the council has a legal liability to construct a car park or a roadway to the required standard. I would hazard a guess that 10mm of hotmix with groundwater underneath is not acceptable

  3. Hey Tony, you taught me to ride and I don’t know of a more conscientious motorcycle rider. I know some of the things you taught me have likely kept me alive!

    What this basically informs me is that they are not responsible for their surface upkeep and accept no liability unless you call them prior tot the incident for some reason, well it’s simply a loophole so that they never have to compensate someone for something that is entirely their responsibility. If I was an attorney I would take your case pro bono to have “Section 37 of the Civil Liability Act” overturned.

    Seeing how I am not an attorney; if this ever happened to me I would anonymously report the surface defect whilst my pride and joy was laying on the ground and then ten minutes later file the complaint. I think in that case you could reasonable expect compensation because technically they where informed that there was a defect prior to the incident and whilst they might have their suspicions that you called it in they could not prove it therefore you would get your rightful compensation.

    In any case this is all moot now as they managed to skate by on a loophole and took your bike with them the [expletive removed].

  4. If that’s how Toowoomba councils treats people who travel to the town, then next time I am up there I will keep on riding through to the next town to spend my motorcycle hard earned money.

  5. Nasty incident, shame about the damage.
    Though I see it as my bother to make sure the contact patch of the side stand is;
    A/ large enough to accommodate the bikes weight
    B/ the surface is solid enough to support the weight
    C/ if neither of the above, enlarge the contact patch with a side stand attachment that increases the side stand foot by 100%
    a square piece of timber that will fit under seat or in your pack for that purpose.

    1. If you envisage parking on an unsealed surface, then a puck under your stand or an attachment that increases the contact patch on your stand is a good idea. I have an attached plate on mine for that very reason. But who would think this was necessary on bitumen or chip seal surface? Council is being totally disingenuous.

  6. Firstly, was it free parking or paid?

    Second a Bunya Pine dropped a cone through a car some years ago and after much hand waving the Toowoomba Council were forced to $ettle.

    Send them a registered letter, requesting payment for damage caused by facilities not fit for purpose.

    And contact the Minister for Local Government.

  7. I don’t know about Queensland but down here in Latrobe valley Victoria we have ‘patrols’ that are driving around fixing potholes and other faults. The council up there seem lazy.

    It’s just like our vehicles Must be roadworthy but our roads are NOT car worthy leading to a vehicles premature u roadworthy state.

  8. The council may be unaware of the specific defect but they are aware that roads need constant maintenance and inspections and by their own. Response have proven that they have been derelict in their responsibility for doing so.

  9. Hi,
    If you took photos of the damage and the hole your stand sunk into then went through your insurance.
    You would still have to pay eccess $ and let them fight with council?
    You dont say how much or what damage was caused?
    Assuming if their was a high value vehicle close to your bike when it fell over and damaged the vehicle insurance would get involved?
    Car park accidents/incidents could be painful.
    At least they didnt charge you for damaging their car park!!

  10. Easy solution – call them and say there is a cruddy piece of bitumen then call back 15 mins later and tell them your bike fell over on a cruddy piece of bitumen in the same spot.

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