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A motorcyclist who suffered lifelong injuries in a northern NSW road accident in 2019 has won a legal test case allowing him to claim third party damages amounting to $13.5 million.
In a case finalised in the NSW Supreme Court this month, Kyogle Shire Council was found negligent for not installing warning signs on the Summerland Way about the loose gravel which caused the rider to lose control.
The Gold Coast man, now aged 74, was on a Sunday ride with a group of friends in a rural area popular with touring motorcyclists.
He was leading the group when he slid on loose gravel and hit an embankment.
The spinal injuries he suffered mean he now requires 24-hour care and will use a wheelchair for the rest of his life.
The $13.5 million will go toward the injured rider's ongoing care, including the carer's work being done by his wife. (Supplied)
'The vibe' argument
Ballina law firm senior partner Ben Crawford said the case tested an argument being run by the council's insurer, the NSW Government agency icare.
Mr Crawford said the ruling set a legal precedent, meaning other icare recipients who wanted to claim further compensation may not face the same legal hurdles.
"Once the judge agreed with our senior counsel's submission that the interpretation of the legislation they were trying to make was akin the 'the vibe' argument in [the movie] The Castle, I think that really has snuffed out the argument being made in other cases," he said.
He said the lawyers for Kyogle Shire Council tried to argue the man could not make a claim against the council because he was already receiving money under the NSW government's icare statutory lifetime care and support scheme.
The scheme covers people who have been catastrophically injured in motor vehicle accidents on NSW roads.
Kyogle Shire Council was found to have been negligent in not sign posting the loose gravel (Supplied: Somerville, Laundry, Lomax)
Mr Crawford the scheme led to his client being awarded $1 million for his pain and suffering.
He was also allocated $4.5 million in funds he could apply for to cover his ongoing care and support for the rest of his life.
"It was driving him into the ground, constantly having to deal with the statutory authority to have things that he needed, having things knocked back," Mr Crawford said.
After the Supreme Court ruling, the man was able proceed with his common-law claim for third-party compensation from the council.
Mr Crawford said his team had to prove significant negligence by the council, which was difficult because all councils had legislated protections.
The long-running case came to an end last week when the man received a lump sum compensation pay out from Kyogle Council's insurer, which also happens to be icare.
Mr Crawford said his client was "over the moon".
The accident means the man will need to use a wheelchair for the rest of his life. (Supplied: Somerville, Laundry, Lomax)
"He is suffering significant psychological issues as you would, given his injuries," he said.
"His mood has been very low right the way through the running of this very difficult case.
"To tell him the good news last week was probably the first time I've heard a sense of relief in his voice."
As part of the outcome, the man has agreed to repay $2.6 million he has already received from icare for his ongoing care and support.
Insurer reviewing judgement
Statewide Mutual is a collective insurer that has 108 members made up of local councils and county councils across New South Wales.
Board member Troy Green, who is also the general manager of Tweed Shire, which borders Kyogle, said the insurer would be looking closely at the Supreme Court judgement.
"Roadworks on roads, particularly roadworks on roads with high speeds, is a risk; that's not something new to us," Mr Green said.
"But that is a pretty big judgement finding, so we will certainly be doing our due diligence on that judgement to see if there are any learnings for our member councils."
In a statement, icare said it "adhered to strict privacy obligations, both as the manager of various schemes and as the insurer under different funds".
Kyogle Shire Council declined the ABC's request for comment.