Motocross is an extreme sport - people get injured and some die

We haven't bothered monitoring motocross injuries since the end of the Drywound Pty Ltd (Colby Steer) Planning and Environment court case in February 2017.

However there is no doubt motocross continues to be an extreme sport.

Just yesterday a 14-year-old boy died after landing awkwardly from a jump while competing at an Esperance Motorcycle Club motocross event in Western Australia

St John Ambulance responded to the incident but  the boy could not be revived and died at the scene.

This is only one in an ongoing series of deaths and injuries at motocross events in Australia.

In October 2017, 340 riders aged 7–16 years competed in the the week-long Australian Junior Motocross Championship at Horsham, Victoria.

In 2018 The Medical Journal of Australia published an article that catalogued all of the injuries experienced by the 24 participants in the Championship who required attention at the Wimmera Base Hospital.

There were 10 fractures, 6 soft tissue injuries, 8 superficial injuries, 1 shoulder dislocation, and 1 amputation suffered by those 24 young people (who made up 7% - 1 in 14 - of the 340 participants).

Five patients required surgery and three were transferred to paediatric trauma centres.

If these rates of injury surprise you it may be because it is unusual for statistics on individual motocross events to be published. This was the first Australian article describing injuries from an entire motocross event, the most comprehensive account for a motocross championship event here or overseas.

The authors suggested, inter alia, that:

• Riders and their parents should be appropriately informed about the risks associated with the sport; and
• For larger events, local health care services should be informed about race schedules and the expected number of riders so that they can appropriately mobilise their resources.
  

 Local government authorities dealing with applications for motocross tracks need to take the extreme sport nature of motocross into account, as well as the impact of such events on the local health care establishment.

At the very least it needs to be noted that an ambulance on-site at a, possibly remote, motocross track is one ambulance that is not immediately available to respond to emergency situations elsewhere.

Another proposed motocross track at Adare? Rumour or fact?

 There is a rumour going around that someone is proposing a major motocross track at Adare.  No real facts, but lots of "detail" - some of which is contradictory and none of which can be confirmed at present.

One suggestion is that it involves a currently illegal motocross track that is seeking Council approval.  Location uncertain.

Colby Steer still has the (unapproved) motocross track on his land at Adare that he created around 2014.

Do you have any information about an application to Council for approval of a motocross track in the Lockyer Valley Region?

Costs Judgement - Drywound to pay part of other parties' costs for the Appeal

The Planning and Environment Court today (28 February 2017) issued the judgement on the parties' applications for costs in relation to the Drywound Pty Ltd Appeal against the Council's decision in May 2015 to refuse the Drywound Application for a motocross facility in the Adare/Vinegar Hill area.

You can find a copy of the judgement here (until such time as it appears on the eCourts website, when a link to it will be posted here).

The summary of the judgement is given below.  The "appellant" is Drywound Pty Ltd (Colby Steer's company); the "respondent" is the Lockyer Valley Regional Council; the "co-respondents" are the group of individual community members who had legal representation and engaged expert witnesses (i.e. the group supported by Lockyer Community Action Inc.) - Keep Lockyer Rural Inc. is not included because they did not have legal representation or engage expert witnesses.

The summary:

"For the reasons given:
(i) the appellant's application for costs is dismissed;
(ii)  the appellant is to pay the respondent's costs of the appellant's costs application, assessed on a standard basis;
(iii) the appellant is to pay the represented co-respondents by election's costs of the proceeding from 14 December 2016, assessed on the standard basis;
(iv) the appellant is to pay the respondent's costs of the proceeding:
      A. from 26 September 2016 to 13 December 2016 on the standard basis; and
      B. from 14 December 2016 on an indemnity basis; and
(v) the respondent's application for costs is otherwise dismissed."

Of course there is a difference between a direction from the court that Drywound Pty Ltd should pay the costs of a party to the Appeal and those costs actually being paid.

See the full judgement for a reasoned argument of how these costs were arrived at.  There is an explanation below of what constitutes "standard basis" and "indemnity basis" for calculating costs.

Accessing Other Documents Filed During the Appeal

If you want to access other documents that were filed during the Appeal you can go to the eCourts website, scroll down to Party Details and type "Drywound Pty Ltd" (without the " ") in the Last/Company Name field.  Hit Return or click the "search" button at the bottom of the page.  Then click on "View file details" and scroll down to Documents.

You can download any of the pdf files under the heading "Pages" - unfortunately the Document Type and Document Description aren't very helpful in indicating what the contents of a file will be.

Costs in Legal Proceedings

 Costs in legal proceedings can be assessed in two different ways: standard basis and indemnity basis.  The following explanation is from Costs Orders in Queensland Courts.

Standard basis of assessment

Unless otherwise specified, costs are assessed on a standard basis. This means the amount of costs to be paid are calculated by taking into account only those costs actually incurred by the party which were necessary or proper for the attainment of justice or for enforcement or defence of rights (rule 702, UCPR). The costs assessor must apply the court's scales of costs which are set out in the UCPR.

As a result, standard costs only compensate the successful party for part of the fees (around 60-75%) they pay to their solicitor. If the solicitor has charged more for work done than that specified in the scale of costs, or if there is an additional amount to be paid to the solicitor under the retainer, then this will not be included in an assessment of costs on a standard basis.

Indemnity basis of assessment

If costs are awarded on an indemnity basis, then costs are calculated by taking into account all costs reasonably incurred and of a reasonable amount, having regard to:
(a) The court's scale of fees; (b) Any costs agreement between the party to whom the costs are payable and the party's solicitor; and (c) Charges ordinarily payable by a client to a solicitor for the work (rule 703, UCPR).

The only ground for disallowing items of indemnity costs is if they are of an unreasonable amount or were unreasonably incurred.

Costs may be awarded on an indemnity basis where the court finds that the court proceeding had no legal basis. If the court awards costs to the successful party on an indemnity basis, the unsuccessful party may need to pay up to 90-95% of the fees and costs actually incurred by the successful party.

What kind of track would it have been anyway?

One of the strange features of the Drywound Appeal against the Lockyer Valley Regional Council's decision to refuse the application for a motocross facility at Adare was the number of proposed track designs that were brought up during the Appeal process - 10 in all, between mid-April and mid-December 2016.  Over one period of 170 days there was a new track layout every 19 days on average.

Colby Steer, the sole Director of Drywound, put quite a bit of emphasis on his expertise in motocross track design and construction at one point in the Appeal.

But why so many track designs?  That's a bit hard to understand.  Clearly there was a problem with getting the noise levels at nearby houses and the Lockyer National Park down to something vaguely acceptable.  But there was no consistent incremental improvement in the noise characteristics of the designs put forward, despite Colby Steer's self-proclaimed expertise as a track designer.

Was it "gaming" the Appeal process to confuse the other parties' experts, or to draw it out and make it more expensive for the Council and the Co-respondents? We will never know.  If it was this, it backfired because it was Colby Steer who ran out of money in the end (see here).

Did all this revision of track designs produce a better track for riders?  You be the judge.

This was the last track design - put to the Court in early December 2016

There are two significant features of this design.  One is the three dark green features with the black lines in their middles.  The other is the seven sections of the track outlined in red.

The dark green features are three earth bunds, 5m high and 12m wide at the base, with a 3m high noise barrier on top.  That makes a total barrier height of 8m, with three of these barriers having a total length of 575m.

These massive barriers were introduced about a year into the Appeal process when it became clear that getting noise levels down to anything like acceptable was going to be very difficult.

Can you imagine what it would be like to be a spectator watching the bikes on this track - or a parent of a young rider, trying to keep an anxious eye on the kid as he/she goes around the track.  From most positions, around half of the track would be obscured by the middle 8m high barrier.

Or as a rider you come belting around that tight left-hand corner at the end of the bund in the south-western part of the track - but you can't get a view around the end of the bund to see if anyone has come off on the track up ahead.  Adds a new element to extreme sport.

What about those red sections of track?

They are also about noise reduction.  As everyone knows, when bikes go fast they make more noise, and throttle use (opening it all the way out) also makes more noise.  Two characteristics of a good ride, but they're noisy.  Track in the red sections has been subjected to "acoustic treatments" by eliminating jumps and introducing obstacles designed to reduce speed and throttle use.  Nearly 20% (1/5) of the total track length has had this treatment.

Not exactly an exciting ride, and I doubt there's another adult track in South-east Queensland that has this extent of fun-spoiling "acoustic treatment".

One other important limitation that can't be seen in this track design is the restrictions that would have to be placed on changes to the track layout. This would clearly matter to riders - surveys done in Victoria indicate that regular modifications to track layout are one of the features that keeps riders coming back to a track.

However, because of the emphasis on getting noise at nearby dwellings and the National Park down to acceptable levels, and the recognition that track direction and the positions of jumps have an effect on noise levels, if the motocross facility had been permitted at Adare there would have had to be conditions requiring the track layout not to be modified.  Boring!!

Maybe if the operation hadn't been refused permission it would soon have gone broke once riders got bored with the track.  And that's without factoring in the impact of the recently opened Willowbank MX track in the Ispwich Motorsports Precinct.

It's over - there will be NO MOTOCROSS @ ADARE!!

Here’s some great news.

Last week, as we were preparing for a resumption of the final Trial Hearing on the motocross appeal, Drywound Pty Ltd's solicitor filed an application with the court to be taken off the record as its solicitor because he (and the barristers) were owed a considerable amount of money and the developer had not been returning his calls or emails for over a month (this was accompanied by a 63 page affidavit detailing the Drywound's debts to its lawyers and experts - see post here).

Late on Friday Colby Steer (sole Director of Drywound Pty Ltd) sent the parties to the appeal copies of a “letter of demand” that he had sent to the Council for payment of $501,057 which he claimed to have spent on legal and professional costs, arguing that the Council had intially expressed “tremendous support and encouragement” at the initial meeting in 2014, but had been putting difficulties in his way since then.

The tone and content of his letter suggest that he has not adequately understood the nature of the Development Application or Planning and Environment Court Appeal processes.  However, in fairness, it is also quite possibly a factor contributing to his current problems that, as an "outsider" in the Lockyer Valley, he might not have recognised in time that any support, encouragement and assurances he had received from the then Mayor of the LVR Council would not necessarily outlast his untimely demise.

On the morning of Monday 23rd of January Mr Steer was in the Planning and Environment Court (self-represented) when it met to resume the Trial Hearing.  He advised the Judge that he wanted to withdraw from the Appeal and had no intention of pursuing the Trial Hearing.  On hearing this, the Judge dismissed his Appeal against the Council’s decision to refuse the application for a material change of use to allow the establishment of a motocross facility on the land in Adare Road.

It's over.

The Council’s decision to refuse the Development Application stands.

The voices of the 232 objecting submitters to the Development Application have prevailed.

This was always an inappropriate development for the proposed location, and that would have been recognised in the Trail Hearing had it gone ahead.  Drywound's withdrawal has saved the community from yet more unnecessary expense in fighting an appeal that should not have been launched in the first place.

Drywound's Solicitor files an application for leave to withdraw

On Monday 16 January Drywound's solicitor filed an Application in the Planning and Environment Court seeking "leave to withdraw as solicitors on the record for the Appellant".

Which in simple english means that the solicitor submitting the request wants the Court to take his name off the Court records as the solicitor for Drywound Pty Ltd (the company which filed the Development Application for a motocross facility at Adare in the Lockyer Valley, and of which Colby Steer is the Director and sole shareholder).

The Application was accompanied by an Affidavit explaining the circumstances leading up to this situation.

You can download the Solicitor's Application to not be listed as representing Drywound here:  http://apps.courts.qld.gov.au/esearching/eDoc.aspx?Location=BRISB&Court=DISTR&Filenumber=2652%2f15&edocsno=71110

and the Affidavit with the background to the Application here:  http://apps.courts.qld.gov.au/esearching/eDoc.aspx?Location=BRISB&Court=DISTR&Filenumber=2652%2f15&edocsno=71111

Page 16 of the above Affidavit (i.e. the 16th page of the total pdf document, not a page numbered 16) details the unpaid fees to lawyers and experts at the time of preparation of the Affidavit owed by Drywound Pty Ltd (Colby Steer's company).

Helmets Don't Prevent Kids' Motocross Concussions

Helmets Don't Prevent Kids' Motocross Concussions - that's the headline of a post on the Medlineplus.gov website two weeks ago which reported the preliminary results of a long-term study.

A team of investigators tracked 35 boys ages 8 to 17 who competed in motocross events on tracks sanctioned by the American Motorcycle Association over a 10 year period to 2014.

All routinely wore mandated safety equipment: helmets, shatterproof goggles, protective boots and pants, and long-sleeve jerseys, the researchers said.

More than 85 percent (30 riders) were injured while competing or practising, and nearly half suffered concussion despite the use of helmets.  One of the boys died from his injuries.

Nearly three-quarters suffered some orthopedic injury. Among 32 fractures, broken legs were most common, but broken arms, ankles and collarbones were reported, too.

Lower extremity fracture risk was found to be twice as high as upper extremity risk, and surgery was performed in more than 80 percent of the lower fracture cases, the study revealed.

 The study concluded that competitive motocross athletes younger than 18 years suffer serious, potentially life-threatening injuries despite the required use of protective safety equipment in AMA sanctioned events. Injuries were more common during competition (30) than during practice (5).

Go here and search on "motocross" to find a detailed summary of the study as presented on Sunday 23 October at the annual meeting of the American Academy of Pediatrics in San Francisco.