All posts by Emily Billiau

Can I use a video recording as evidence? Will it prove I wasn’t at fault?

By Emily Billiau | Associate | [email protected]

 


 

Every week, we speak to cyclists who have been injured on our roads. And there is something common in a lot of the stories we hear:-

“I had a recording device on my bike and I captured the accident.

Can I use it?

Will it prove it wasn’t my fault?”

With the growing use of technology in today’s society, the use of video recording devices on bicycles and by cyclists has emerged as a growing trend.

Many cyclists use recording devices in hope that, should something go wrong, the footage captures the evidence they need to support their case.

We are often approached by cyclists who have a recording of an incident and who question whether the recording can be used as evidence in their injury claim.

The question then naturally becomes, is the recording admissible in evidence?

Pursuant to section 138 of the Evidence Act 1995, the Court has a discretion to exclude improperly or illegally obtained evidence. And so it must first be determined if the evidence was in fact obtained legally.

For example, if a recording was secretly (and without consent) obtained of a conversation between other persons and the cyclist was not involved in the conversation, the recording may be in contravention of Australian Law.

If it is found that the evidence was improperly or illegally obtained, the Courts cannot admit the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  In considering the desirability of admitting such evidence, the Court needs to consider a number of factors pursuant to section 138 of the Evidence Act. They include:-

  • The probative value of the evidence;
  • The importance of the evidence in the proceeding;
  • The nature of the evidence;
  • The gravity of the contravention and whether it was deliberate or reckless.

So is your video footage admissible?

If you possess a recording of an incident you were involved in, you should consult your solicitor.

Ultimately, the different circumstances of each case and the context of each recording needs to be considered. Certainly, if the recording is admissible, it may be used to help you with your claim.

Careful, you’re on Camera!

On-bike cameras have become increasingly popular among cyclists in recent years for their ability to provide high-tech evidence in what can sometimes be an ugly contest between road users.

Many cyclists are making the decision to invest in a camera, and turning to the footage as reliable evidence following an accident.

Video footage of a road rage incident, a driver who fails to give way or a pedestrian not paying attention can help a cyclist establish fault on the part of the other party.

And with footage of hair-raising conflicts, crashes and near-crashes from on-bike cameras now a common feature on news websites and social media, it is not difficult to see why so many cyclists are using on-bike cameras as a form of insurance.

Despite the Transport, Housing and Local Government committee’s recent inquiry in to the interaction between cyclists and other road users finding that the majority of cyclists and motorists are courteous and compliant with the road rules, the volume of recent viral videos of incidents demonstrates a need for the added safety measure.

Cyclists are inherently more vulnerable than motorists due to the lack of protection offered by a bicycle and because they are frequently in close proximity to larger and faster motorised vehicles.

Unfortunately, this means that the stakes are significantly higher for cyclists – a crash between a bicycle and a car could send the cyclist to the hospital, and the driver to the panel-beater.

In Australia, drivers often escape criminal charges because the elements and standard of proof required to successfully bring criminal charges against the driver are often not met because of a lack of evidence.

In personal injury claims, liability is often clouded by memory issues, alternative versions of the event or a lack of cooperation – all of which could possibly be alleviated by reliable video footage of the incident.

Cameras can also serve as a deterrent to hit and runs, road rage, and perhaps even prompt drivers to reassess their driving strategies near cyclists.

The need for greater protection of bike riders in Queensland is well-established. With a significant growth anticipated in cycling in the coming years, any additional safety mechanisms ought to be welcomed.
Perhaps one day, setting up an on-bike camera before a ride will become as common to a cyclist’s routine as checking tyre pressure, filling a water bottle and fastening a helmet.

However, health experts are warning Queensland riders to carefully consider where they secure their camera as they may affect injuries in the event of a crash.

Written by Emily Billiau and Claire McHardy

Image source: Michael O’Reilly

Dangerous Truckie Caught Out on Facebook

Brazen truck driver to be investigated after posting dangerous driving on social media

A Sydney truck driver would be regretting his decision to upload a video of him deliberately drenching a group of cyclists. One of the cyclists identified in the video onforwarded the footage to police after it became the centre of a heated debate between truck drivers and cyclists.

The video, allegedly filmed by the driver himself shows him driving alongside a group of cyclists and lamenting he is unable to run them over, “So we hate pushbikes, we are not allowed to run them over but we can f*** with them, so let’s have a crack.”  He then proceeds to deliberately pass the cyclists at a large puddle which ensured his heavy vehicle threw a large volume of water across the group. The ensuing chuckles indicate just how much pleasure the driver took from his dangerous actions as he laughs, “Oh yeah, nothing better than f***ing saturating a pushbike rider …“My day is complete.”

New South Wales Police have confirmed the truck driver is to appear in court on charges related to using a mobile phone whilst driving and menacing cyclists on the road.

Written by Emily Billiau and Claire McHardy

Cool Kids Wear Lids and Other Important Helmet Information

Is it mandatory to wear a helmet when riding a bicycle?

In short, yes. Australia was one of the first countries to make wearing bicycle helmets mandatory. Between 1990 and 1992, the States and Territories introduced various laws mandating that cyclists wear bicycle helmets while riding.

The Legislation

Although each of the eight State and Territories in Australia have their own Road Transport legislation (or ‘Road Rules’), due to an absence of Commonwealth power to legislate in that area, the Australian Road Rules (developed by the National Transport Commission) stand as a model set of rules for the States and Territories to base their own legislation on.  This helps to create uniformity across the various jurisdictions.

Section 256(1) of the National Transport Commission (Road Transport Legislation – Australian Road Rules) Regulations 2006 (Cth) provides that:-

The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened to the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction.

Each State and Territory has subsequently enacted their own Road Transport legislation that mimics the above national rules. Victoria was the first State to introduce mandatory helmet laws in 1990, followed by New South Wales (for adult cyclists) and Tasmania (all ages). New South Wales amended the laws to include children in 1991. Similar laws covering all cyclists were also adopted in South Australia and Queensland, then in the Northern Territory and Western Australia and finally, the Australian Capital Territory in 1992.

Are there any exceptions?

In 1994, the Northern Territory Minister for Transport announced an amendment to the Northern Territory Traffic Regulations to permit cyclists over the age of 17 to ride without a helmet but only along footpaths or on cycle paths which are not on roads. Reportedly, the compromise to continue to require cyclists to wear helmets while cycling on the road was to avoid any repercussions from the Federal Government.

The position in the Northern Territory is unique and sets it apart from the other States and Territories.

By Emily Billiau

Image credit: Nic MacBean

Cycle Accident Resulted in Substantial Payout

Cyclist v Taxi

Land v Dhaliwhal & Anor is a 2012 decision out of the Supreme Court of Queensland.

In this matter the Plaintiff was awarded $380,000.00 in damages after colliding with a taxi and sustaining injury.

The Plaintiff cyclist had been cycling along Airport Drive, Eagle Farm, at the head of a group of cyclists who were training together. The Cyclists were riding on the part of the roadway adjacent to the left hand shoulder of the road, when a taxi, driven by the First Defendant, suddenly and without any warning veered into the lane directly in front of the Plaintiff and stopped almost immediately in front of where the Plaintiff was cycling.

Unable to avoid the taxi, the Plaintiff collided with the rear of the vehicle and sustained personal injuries, including a back injury and an aggravation injury to the knee.

Unfortunately, the Plaintiff’s injuries significantly restricted his ability to return to his pre-accident employment as the owner-manager of a Brisbane bicycle store and his ability to cycle. The Plaintiff was forced to hire additional staff to assist with the daily operation of the business and to allow him to attempt to recover from his injuries. Ultimately however, the Plaintiff was forced to sell his business and pursue a lighter and more manageable venture – he subsequently established another small business as a bicycle fitter which allowed him more freedom to change posture and work limited hours.

The Defendants, although admitting liability, alleged over the course of the claim that the Plaintiff was contributory negligent – that is, that he contributed to the incident and the injuries he sustained therein. Ultimately however, the Defendants conceded this point in their closing submissions at the trial and the Court escaped making a ruling on this particular point. The Court found in favour of the Plaintiff cyclist and awarded $380,000 by way of damages.

For more information please contact Emily Billiau

Information Sheet – Electric Bicycles

Electric Bicycles

What is an Electric Bicycle?

An electric bicycle (or e-bike) is a bicycle with a motorised assistance.

There are two types of legal motorised bicycles:-

  1. Those that require the cyclist to move the pedals to maintain electrical assistance (pedalec); and
  2. Bicycles with a handlebar throttle, that allow a cyclist to travel without using the pedals1

Design Rules / Requirements

The Australian Design Rules (ADRs) are national standards which dictate vehicle requirements. For vehicles manufactured post-1989, the application of the ADRs is the responsibility of the Federal Government pursuant to the Motor Vehicle Standards Act 1989 (Cth).

In 2012, changes were announced to the national vehicle safety standards in relation to power-assisted bicycles.

There are two types of legal motorised bicycles in Queensland (as described above) and the requirements vary for each. The pedalec type of bicycle must comply with the European Standard for Power Assisted Pedal Cycles (EN15194). The bicycle can have a maximum of only 250 watts of power and must be marked to show that it complies with the standard.

Bicycles with a handlebar throttle can have a motor that generates no more than 200 watts of power. If it is capable of generating more than 200 watts of power or has an internal combustion engine, then the bicycle must comply with Australian Design Rules for a motorbike and cannot be ridden on roads or road-related areas if it does not comply with these standards.

Do riders of Electric Bicycles have to comply with the Road Rules?

Yes. Bicycles are considered vehicles under legislation in Queensland, and so riders must obey the general road rules as they apply to vehicle operators.

 

1NB – The pedals should still be the primary source of power for the bicycle. If a rider can complete a journey without using the pedals and powered solely by the motor, then this would not be classed as a motorised bicycle

By Emily Billiau and Gemma Sweeney

Case Study – The Motorised Bicycle

Hendricks v El-Dik & Insurance Australia Limited T/AS NRMA Insurance (No 4) [2016] ACTSC 160

This decision involved a Plaintiff cyclist who was injured when he was struck by a motor vehicle driven by the First Defendant.

The Plaintiff had been cycling home from his workplace. His route took him along a cycle path which included a section that cut across a number of driveways, including the driveway of the First Defendant motorist.

As the Plaintiff cyclist approached the driveway of the First Defendant, the First Defendant reversed out of his driveway and into the path of the Plaintiff cyclist – causing the Plaintiff cyclist to collide heavily with the passenger side of the vehicle.

Unfortunately, the Plaintiff’s head collided with the vehicle. The Plaintiff sustained significant spinal injuries and was rendered a quadriplegic.

Relevantly, the Plaintiff’s bicycle was fitted with a 500W capacity electric motor.

Although damages were agreed between the parties at $12 million, liability could not be agreed and the matter proceeded to trial.

The Defendants alleged that the Plaintiff cyclist was contributory negligent (that is, that they cyclist’s negligence contributed to the harm he suffered.) The alleged grounds of the Plaintiff’s contributory negligence were as follows:-

  • Operating a registrable but unregistered bicycle powered by a 500W motor on the path;
  • Travelling at an excessive speed;
  • Failing to keep a proper lookout;
  • Failing to have a horn installed on the bicycle; and
  • Failing to deviate from the path rather than continue along the path across the driveway.

The Plaintiff was found contributory negligent in the order of 25% on the basis that he failed to keep a proper lookout. The other grounds were not made out.

Interestingly, the issue of the electric motor that was fixed to the bicycle was examined in some detail.

Unbeknownst to the Plaintiff, the law in the ACT required that the capacity of the electric motor not exceed 200W. The Plaintiff cyclist argued that there was no causal link between the increased capacity of his motor (500W) and the damage suffered by him. In the circumstances, he contended that there were insufficient grounds for a finding of contributory negligence on that basis.

Expert evidence was adduced at the trial showing that the bicycle’s maximum speed with the motor was no greater than 24km/hr, and that the Plaintiff cyclist had been travelling at a speed of between 15 and 20km/hr at the time of the accident. This speed was said to be similar to the speed adopted by other users of the particular bicycle path.

The Court ultimately accepted that the legality of the motor was not relevant, finding no causal link between the increased capacity and the damage suffered by the Plaintiff cyclist.

By Emily Billiau and Gemma Sweeney

R v Osborne [2014] QCA 291

Dangerous driving causing death and grievous bodily harm

In R v Osborne the Court considered the culpability of a truck driver who struck and killed one cyclist and caused serious injuries amounting to grievous bodily harm to two other cyclists.

The 65 year old truck driver had no previous convictions and only a minor traffic history. The truck driver was driving with a wide load across a bridge whereupon the cyclists were travelling in a single file. There was traffic coming from the other direction also.

It was the evidence of the truck driver at the trial of the matter that although he thought it was going to be a “tight squeeze,” he “believed there was enough room to get through.” Unfortunately, there was not. The truck struck and killed one cyclist, seriously injured two others, and caused lesser injuries to a fourth cyclist.

The driver of the truck pleaded guilty to dangerous operation of a vehicle causing death and grievous bodily harm. He was sentenced by the Court to three and a half years imprisonment, suspended after 14 months for an operational period of four years. He was also disqualified by the Court from holding or obtaining a driver’s licence for five years.

In sentencing, the Judge was of the view that the driver’s conduct constituted “a very serious error of judgement,” beyond merely “momentary inattention.”

On appeal however, the Court made the point that descriptions such as “momentary inattention: are not the critical issue. The issue for consideration rather was the level of seriousness of the actual driving. The Court also went on to reduce the sentence to three-and-a-half years imprisonment, suspended after only 9 months.

By Emily Billiau | Principal

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Simmons v Rockdale City Council (2013) 65 MVR 141

A Popular Cycling Route and the Boom Gate

The Plaintiff was a competitive cyclist who was out on an early morning training ride. The Plaintiff’s ride took him along Riverside Drive in front of the St George Sailing Club (the Club), where he collided with a closed boom gate and sustained serious injuries. The boom gate had been installed by the Council after issues with ‘hooning’ had arisen in the carpark at night.

The Council had entered into an informal agreement with the Club, allowing them to open and close the gate ‘at their discretion.

The Council’s case was that the collision had occurred as a result of the Plaintiff’s own negligence. The Council pleaded that:

  1. It was an obvious risk of engaging a dangerous recreational activity (cycling); and
  2. That the Plaintiff had failed to keep a proper lookout; and
  3. That the Plaintiff was riding in a direction opposite to marked traffic flow; and
  4. That the Plaintiff failed to ride at an appropriate speed; and
  5. That the Plaintiff ignored ‘no exit’ signs

Evidence lead at the trial of the matter demonstrated that the Council was aware of two earlier incidents occurring when the boom gate had been left closed early in the morning and cyclists had subsequently collided with it. There was also evidence that Riverside Drive had, for many years, served as an extension of a popular cycling route and cyclists would frequently ride through the point where the boom gate was erected.

The Plaintiff was ultimately successful in his claim, although a finding on contributory negligence was made by the Court. The Court found that the Plaintiff cyclist contributed to his injuries Judgement was entered in favour of the Plaintiff in the order of $928,000.00 (after a 20% reduction for contributory negligence) on the basis that the council owed a duty of care to regular users of the Riverside Drive, such as cyclists, and should have taken reasonable steps to ensure that the boom gate did not become a hazard. They failed to take appropriate action by not having a system in place to ensure that the gate would be opened by a specific time each day, did not make the boom gate readily visible and provided no safe alternative access to the street.

By Emily Billiau and Gemma Sweeney

Case Study – Cyclist v Unidentified Vehicle

Cordin v Nominal Defendant

 

Cordin v Nominal Defendant is a decision out of the District Court of NSW. The Court awarded the Plaintiff cyclist $350,000 in damages for the injuries he sustained after he fell from his bicycle. It was alleged by the Plaintiff cyclist that as he was applying his brakes in the course of coasting to negotiate his way around a series of potholes, a motor vehicle struck his bicycle from behind. He was thrown forward onto the roadway and sustained a head injury, compression fractures to his thoracic spine, injuries to both hands, wrists and knees.

Despite attempts, the Plaintiff cyclist was unable to identify the motor vehicle involved and ultimately proceeded with a claim against a Nominal Defendant.

The Nominal Defendant fervently defended the claim. The basis of their defence was that the Plaintiff cyclist sustained injuries after striking a pothole in the road. They denied the involvement of a motor vehicle.

The key issue of determination by the Court was whether a motor vehicle was in fact involved.

The Plaintiff led evidence from an expert that the damage occasioned to his bicycle and the injuries he sustained would have been occasioned in the circumstances he alleged occurred (that is, being struck from behind by a motor vehicle.)

The Defendant led expert evidence to the contrary. Their evidence was that the injuries would have resulted from striking a pothole.

The evidence from the Plaintiff’s expert was ultimately preferred and the finding was made by the Court that a motor vehicle was involved. The Court held that the driver of that vehicle had been negligent for failing to keep a proper lookout of the roadway ahead (in order to appropriately deal with foreseeable risks) and awarded the Plaintiff cyclist damages in the order of $350,000.00.