Canberra cyclist ordered to pay $1.7 million over collision

Bicycle related chatter & discussion
User avatar
paul
Posts: 247
Joined: 03 Feb 2008, 21:43
Location: Leichhardt

Postby paul » 31 Oct 2014, 19:31

This makes you think.
One rider sued the other after a crash and was awarded $1.7 M.
I assume that the CA insurance would cover this for members.

http://www.canberratimes.com.au/act-news/canberra-cyclist-ordered-to-pay-17-million-over-collision-with-fellow-rider-20141031-11f37b.html

Paul

User avatar
Eleri
Posts: 1753
Joined: 31 Dec 2009, 08:43
Location: Erskineville

Postby Eleri » 31 Oct 2014, 20:45

I'm kind of assuming he was insured and that both parties knew that.

User avatar
JoTheBuilder
Posts: 1500
Joined: 19 Feb 2011, 15:32

Postby JoTheBuilder » 04 Nov 2014, 08:24

Yes, the back story is that they both knew he was insured so apparently it was an agreement to sue to cover his medical costs.

User avatar
Eleri
Posts: 1753
Joined: 31 Dec 2009, 08:43
Location: Erskineville

Postby Eleri » 17 Nov 2014, 20:37

Jonathan Coyle, a DHBC member is a lawyer working in the insurance area. He emailed me this update on this case.

Recent Case of Franklin-v Blick

If injured in a motor vehicle collision, to bring a claim for injury damages ( unless the accident was a blameless accident) you must establish that the party at fault was negligent. When making a claim against the party at fault, in the case of another motor vehicle , you claim against the driver at fault through their CTP insurer. Q What happens when the other driver is a fellow cyclist? You hope the party at fault has insurance. In Franklin v Blick , one can assume the defendant had an insurance policy and was sued in name only. If the defendant did not have insurance, the plaintiff would have been limited to recovery against the defendant personally.

Franklin - v- Blick [2014] ACTSC 273, is a decision handed down in the Supreme Court of the ACT on 30 October 2014. Facts : On 17 June 2009, the plaintiff was riding his bicycle in a bicycle lane. At the same time, the defendant was riding his bicycle in the same direction as the plaintiff, and they were not quite riding side-by-side. The defendant was slightly in front of the plaintiff, when the defendant's bicycle hit a piece of wood causing the defendant’s bicycle to veer and collide with the plaintiff's bicycle. As a result, the plaintiff fell from his bicycle onto the road surface onto the motor vehicle lane. The plaintiff was struck by a motor vehicle causing catastrophic injury to the plaintiff. Finding: the Court found there was no negligence on behalf of the driver of the motor vehicle. The Court found that the defendant owed a duty of care to other road users, particularly to other cyclists; a duty of care to exercise reasonable care to avoid causing injury to other road users. The Court found the duty extends to exercising reasonable care to avoid running over objects on the cycleway likely to cause the defendant to lose control of his bicycle. The Court found that the defendant did not exercise reasonable care to observe the piece of wood on the cycleway and to avoid it. The Court dismissed the allegation of contributory negligence against the plaintiff. The Court was not satisfied that the actions of the plaintiff, or a reasonable person in the position of the plaintiff , contributed to the incident. Damages: the Court noted the agreement between the parties of damages of $1,659,392.75.

I refer you to the Cycle Australia Web Site. Under the heading “ Insurance” for cyclists there is a link to Willis Insurance. This provides the details of insurance cover for cyclists that includes public liability https://info.willis.com/site/cycling/DocLibrary/PublicProductsLiabilityInsurance.aspx


Kind Regards,

Jonathan Coyle – Senior Associate
Level 8, 299 Elizabeth Street Sydney NSW 2000
PO Box 958 Darlinghurst NSW 1300
DX 11529 SYDNEY DOWNTOWN
T 02 9321 1000 F 02 9264 9605 W http://www.masonblack.com.au

User avatar
Karzie
Posts: 709
Joined: 03 Nov 2008, 17:14

Postby Karzie » 17 Nov 2014, 21:59

There's so much questionable with this case from start to finish. Good that the injured rider got a payout tho, I guess.

User avatar
jimmy
Posts: 986
Joined: 13 Nov 2006, 10:15
Contact:

Postby jimmy » 19 Nov 2014, 09:09

There's an article on ABC News about this about Cyclists scrambling for insurance

The interesting bit is this though

In the case that attracted the $1.6 million payout, the money came from a home insurance policy.


So maybe the rider who was sued had a Cycle Cover style home insurance which was able to cover him. Pedal Pushers (who I think are a BNSW equivilent in the ACT) have seen a surge in membership.

timothy_clifford
Posts: 270
Joined: 13 Feb 2012, 19:04

Postby timothy_clifford » 19 Nov 2014, 09:21

jimmy wrote:So maybe the rider who was sued had a Cycle Cover style home insurance which was able to cover him. Pedal Pushers (who I think are a BNSW equivilent in the ACT) have seen a surge in membership.


My contents insurance contains public liability cover that should (I hope) kick in when using any item listed as being part of the policy. This includes my bikes when used for recreation (ie. does not cover racing).

User avatar
Karzie
Posts: 709
Joined: 03 Nov 2008, 17:14

Postby Karzie » 19 Nov 2014, 11:45

I'm interested that nowhere in discussion of this topic has anyone talked about the actual practical effect of this decision.
Basically, if you ride with a lapped wheel and the lead rider knocks you over with his rear wheel avoiding an object on the road (that he must have expected to be there), then the lead rider is able to be sued for negligence. I would expect that it means also that if you break hard enough for someone to run into you, then you are also at fault.
It seems strange that there is one law for the motorist and an entirely different one for the cyclist. I haven't read the court transcript yet, but it should be available soon.

User avatar
Dougie
Posts: 754
Joined: 11 Jan 2008, 16:39
Location: Dulwich Hill

Postby Dougie » 19 Nov 2014, 14:36


User avatar
Karzie
Posts: 709
Joined: 03 Nov 2008, 17:14

Postby Karzie » 19 Nov 2014, 16:22

Thanks Dougie. Wasting my time with Austlii and Lawlink!

Pretty much confirms all I heard. Nice he got a payout in the end, but I was left shaking my head.

User avatar
Eleri
Posts: 1753
Joined: 31 Dec 2009, 08:43
Location: Erskineville

Postby Eleri » 19 Nov 2014, 18:54

Karzie, this is a civil case, not a criminal case so the rules are different. And the two riders appear to have worked it out between them given they both went to a lawyer together to see if they could pursue something against the car driver.

User avatar
Karzie
Posts: 709
Joined: 03 Nov 2008, 17:14

Postby Karzie » 20 Nov 2014, 13:34

I understand that Eleri. The issue of 'negligence' in a tort is what I take issue with. The fact that they've 'worked it out' between themselves is neither here nor there.

User avatar
JoTheBuilder
Posts: 1500
Joined: 19 Feb 2011, 15:32

Postby JoTheBuilder » 20 Nov 2014, 14:24

Karzie, are you suggesting that motorists who hit cyclists don't seem to be able to be sued for negligence? Instead tend to get a slap on the wrist and a small fine?

User avatar
Karzie
Posts: 709
Joined: 03 Nov 2008, 17:14

Postby Karzie » 21 Nov 2014, 09:06

Hi Jo. Not specifically. If they're found guilty it automatically leaves them open to a civil action. Proving negligence is a black art, however. T

In this particular case my concerns are on any number of issues. At no stage was any type of expert witness called by either the defendant or the plaintiff, yet the judge was able to make any number of inferences which were questionable. For instance,

1. He said that even though the object on the road was a similar color as the path and it was night time, the plaintiff should have seen it because they were travelling at 7 metres per second and a sprinter can run at 10 metres per second. ??

2. There was no contributory negligence, even though the plaintiff had not seen the object either. ??

3. The plaintiff may actually have been behind the defendant (and to the right), but this wasn't considered material to the case.

4. The fact that they were probably having a conversation and were both distracted was not considered.

I could go on, but I would probably be boring my readers. Suffice to say that all this may have implications for group riding.

The most obvious is that if you swerve to avoid an object, or because of hitting an object (or hole) on the road and cause damage to another rider as a result then the fact that they hadn't seen the object either or that they were riding with a lapped wheel means you may still be at fault and able to be sued, even if it's at night (if there's street lights).

The fact that the other person was talking to you and distracting you (and doesn't even have to have seen the object themselves) may not be a defence or contribute to the negligence.

You can ride two abreast on a bike path? and the inside rider is responsible for the outside rider?

I can see why there is a mad scramble for good insurance. I don't necessarily think that there shouldn't have been a payout, just that the uninformed reasonings which were allowed to go unchallenged in the interest of an agreed result could cause everyone a lot of issues down the track.


Return to “Conversation”

Who is online

Users browsing this forum: No registered users and 2 guests