Australia: Negligent police plus crooked government insurance bureaucrats try to stiff a little guy

A VICTORIAN judge has accused the state's Transport Accident Commission and the police major collision investigation unit of omitting evidence and trying to destroy the case of a cyclist who sought compensation after being rendered quadriplegic in a mysterious accident. In a decision handed down on August 31, Judge John Bowman, the acting president of the Victorian Civil and Administrative Tribunal, found in favour of a claim by 23-year-old cyclist Jay Cracknell, of Mooroolbark, and accused the TAC of adopting a "win-at-all-costs" attitude and of improper conduct in the way it fought the claim.

He also called the police investigation inadequate and sub-standard. He said he was stunned to learn that police never asked for Mr Cracknell's version of what happened. He criticised an officer who gave evidence, saying "his credit did not emerge unscathed". "It seems to me to verge on the staggering that an accident of sufficient gravity to warrant the attendance of the major collision investigation unit would occur — it being an accident of sufficient severity to render a young man a quadriplegic, also being an accident occurring by the edge of an important road and with certain peculiar surrounding circumstances — and yet no member of the police force has interviewed the victim," Judge Bowman said.

The bungled handling of the case has triggered an internal review by the TAC of its procedures for handling claims and dealing with litigation and compensation.

But Victoria Police's Assistant Commissioner for traffic, Noel Ashby, rejected the criticism. "We have full confidence in the manner in which the investigation was conducted," Mr Ashby said. "All decisions made were based on well-established and tested methods, and while the findings presented in the hearing were based on the civil burden of proof, police investigations are conducted to the highest standard of beyond reasonable doubt."

Mr Cracknell was found on a nature strip in Manchester Road, Mooroolbark, early on May 28, 2005, laid out straight, with his bicycle leaning upright against a nearby fence. He had a blood-alcohol level of more than 0.2, but he later insisted that he saw headlights behind him just before the accident.

Evidence about an arc of fresh tyre marks imprinted in grass close to where Mr Cracknell fell was given to the TAC and police officers. But it did not go to the TAC's independent investigator, David Axup, who nevertheless concluded it was "a distinct probability" that a vehicle was involved.

The TAC, however, denied liability and suggested Mr Cracknell lost control of his mountain bike. Mr Cracknell took his claim to VCAT in May. The TAC's initial file of evidence to VCAT also omitted any mention of the tyre marks. The TAC apologised to the judge during the case, and rectified it. But a day later, a witness testified about the tyre marks, undermining a statement by MCIU officer Sergeant Colin Schmidt. He swore another statement at the TAC's request, but the judge said the presentation of that statement looked like a "desperate attempt" to destroy the witness' vital evidence.

Judge Bowman said the TAC's exclusion of crucial material "makes me feel decidedly uneasy". He said there was overwhelming evidence that a vehicle forced or pursued Mr Cracknell off the road, and that someone unknown tried to "reorganise the scene of the accident". "The subsequent investigation by the major collision investigation unit was inadequate," the judge said.

The TAC said it would not appeal. Mr Cracknell plans to use any compensation to employ a full-time carer, buy a house and refit it for his needs. "I just felt like the TAC were holding out on me," he told The Age.

Mr Cracknell's sister, Taryn Hinton, wants police to reopen the investigation. "Someone did this to Jay, and that someone should be made accountable for what they did," she said.

TAC spokeswoman Anna Chalko said the commission "deeply regretted" that material was initially omitted. She denied that the TAC harboured "a win-at-all-costs" attitude and that it deliberately attempted to withhold evidence. "The TAC focus is to work closely with Jay and his family to get the medical treatment and support services he needs and for which he is entitled to."

Report here



(And don't forget your ration of Wicked Thoughts for today)