All posts by Emily Billiau

Back Pain Myth Busting 2: Severe pain means severe damage

Back pain is an extremely common complaint. We frequently hear of back pain and injuries from our clients, and have found it to be a difficult hurdle to overcome despite its frequency.

We have enlisted the help of Physiotherapist, Donovan Baker from Queen Street Physiotherapy in Brisbane for his expert advice on back pain management. Donovan has extensive clinical experience in musculoskeletal and sports physiotherapy and has a keen interest in achieving manageable solutions for clients living with pain and limitations. 

We sat down with Donovan to continue our back pain myth busting series. If you missed last month's article on whether exercise and movement is good for back pain, read it here.

This month we discuss managing how we view pain and that severe pain sometimes doesn't mean you have done severe damage. 

Read on to see his insights and why movement is so important for a speedy recovery.

Why does severe pain not necessarily mean severe damage?

This is a very in depth question but I will do my best to keep it short and simple.

To understand that pain doesn’t equal damage you need to wrap your noggin around pain itself. Pain is, 100% of the time, an output of the brain. It does not come from the tissues but from the brain interpreting data and evaluating whether said data is harmful to you. Pain acts a protective mechanism. It is there to stop you doing dumb things and hurting yourself. The brains takes into account not only the signals from tissues, but also draws on past experiences, emotional state, current stress levels, thoughts, beliefs, attitudes…the list goes on. The brain and central nervous system (CNS) does an incredible job in processing all this data in an instant, but occasionally it makes mistakes and can give you the sensation of pain when really there isn’t any damage happening.

Tissue damage commonly goes hand in hand with acute pain, but not always. You sprained your ankle, it hurts like a b#$%* but typically heals up in a few weeks and you’re encouraged to stay active. On the flip side you can bend over one morning to tie your shoes and your back seizes up, again hurts like a b#$%* but it doesn’t necessarily mean tissue damage. You haven’t slipped a disc, there’s no nerve root compression it’s just painful and stiff, and takes a little time and TLC to get back to doing the things you love. The brain, for whatever reason, doesn’t like that bending move even though you’ve done it a thousand times before, and it locks up the low back. Tight muscles, stiff joints and super wired nerves can give you a great deal of misery.

There’s a really interesting case about a construction worker that ended up with a metal pole sticking straight through his boot. The guy was in agony, screaming the house down. They got him to hospital and cut the boot off. Turns out the pole had gone between his toes. Didn’t break any bones, didn’t even pierce the skin. Once he saw it he calmed down and very soon wasn’t feeling a thing. But because he thought he would have a gaping hole in his foot, his brain had conjured up the pain! Now ask him at the time and he would have sworn on dear old Nana’s life the pain was real, not in his head. This is a case of the brain misprocessing data, and creating the output of pain.

This is a very complex topic but there are some great Youtube videos that break it down nicely. Check out Understanding Pain in less than 5 minutes, and what to do about it!’ and also TEDxAdelaide - Lorimer Moseley - Why Things Hurt’.

When someone is experiencing severe pain what might be causing it?

In terms of severe low back pain, an almost countless number of things, but there are a few main ones we see at Queen Street Physiotherapy.

1

Tissue or mechanical damage

This can be bulging discs, vertebral fractures, vertebral ligament sprains, muscular strains or spasms (a very small percentage of people actually have this type of severe back pain)

2

Neuropathic pain

This is damage to or overactive nerves. A bulging disc compressing on a nerve will give you pain down said nerve. Think about hitting your funny bone and how that shoots down to your hand, similar concept.

3

Non-specific lower back pain

Exactly like what it sounds. There’s no specific structural or mechanical issue, the back just bloody hurts! See the above explanation on why this can be so.

When should we be more concerned that it's something more sinister?

Here are the main nasties/red flags we look out for in low back pain.

  • Groin pins and needles, numbness and/or changes to bladder or bowel function(i.e. feeling the urge to go to the toilet but nothing actually comes out). You need this sorted out ASAP. Google ‘Cauda Equina Syndrome’.
  • Night pain. Fine during the day, bad at night. This can be a little warning sign of cancer. But if you have it, don’t panic! Just make sure you get it checked out quickly.
  • Muscle weakness. Walking along and you can’t stop your foot from slapping the ground or you can’t do a single leg calf raise. Potentially a compressed nerve.
  • Very intense pain, like 7/10 or higher. As in ‘Oh Lord please help me this hurts so bad!’

There are other red flags which physio’s look for, but the above are the more serious ones that need urgent attention.

What are the top products you recommend to help someone manage pain?

There are a lot of great products out there that can help ease back pain.

I personally love a hot pack and my trusty trigger point ball.

Heat can help locally at the site of pain, makes it feel warm and snug. But also can decrease the ‘pain signals’ getting to the brain by giving the nerves something else to report to the brain…in this case, heat.

My trigger ball also gets a good workout. Triggering tight musculature around the low back can help a lot. I go for my glutes and ITB, but also the bigger muscles in the back, QL and erector spinae. If you don’t know these you’ll need to be shown by your physio. And if the trigger ball is too intense you can use a foam roller instead.

Thanks Donovan.

If you missed last month's article from Queen Street Physiotherapy on whether exercise and movement is bad for back pain, check it out below.

Back Pain Myth Busting 1 – Movement and exercise is bad
Back pain is an extremely common complaint. We frequently hear of back pain and injuries from our clients, and have[...]

Stay tuned for another article from the Queen Street Physiotherapy team in January. 

In the meantime, if you have any questions regarding this interview, treatment of back pain or other health issues please do not hesitate to contact Donovan and the rest of the team by visiting the Queen Street Physiotherapy website.

Queen St Physiotherapy offers ergonomic advice, podiatry, custom made orthotics, running assessment, hydrotherapy, dry needling, remedial massage, exercise and stretching programs.

Back Pain Myth Busting 1 – Movement and exercise is bad

Back pain is an extremely common complaint. We frequently hear of back pain and injuries from our clients, and have found it to be a difficult hurdle to overcome despite its frequency.

We have enlisted the help of Physiotherapist and Exercise Physiologist, Phill Forostenko from Queen Street Physiotherapy in Brisbane for insight and expert advice on back pain management.

Phill has over 10 years’ experience as both owner and directing physiotherapist at Queen Street Physiotherapy. He has interests in sports and work related injuries including neck, shoulder and back pain. He is also highly experienced in managing mobility issues and post surgery rehabilitation.

We sat down with Phill earlier this month to break down some common myths around back pain.

Read on to see his insights and why movement is so important for a speedy recovery.

You often hear that exercise and movement is bad for recovery, is that the case?

Absolutely not. The right exercise has been shown hands down to be the best rehabilitation for just about any injury or niggle. The real question should be, ‘What is the RIGHT exercise?’ This is where things can get a little complicated and it’s like asking, ‘How deep’s a hole? Or how long is a piece of string?’ It really depends on you, your injury and your personal circumstances. At Queen Street Physiotherapy we can advise and guide you on the right types and amount of exercise.

But for a very basic baseline you want to exercise within a tolerable pain limit (i.e. it’s a bit sore but I can do the exercise without it getting worse) and you want to reach small milestones along the way. Typically that will reduce the swelling/inflammation, achieve pain free range of motion, gentle return to activity, then a full return to performance. And your activity or performance is very dependent on you. It might be rep level sport, or gasping for air in a PT circuit wishing it was time for that post workout cappuccino. 





When should you rest, and how long for?

For most acute injuries, typically 48hrs, but the consensus is evolving.

The old acronym RICE (say it with me…rest, ice, compression, elevation) has now been given a shiny new upgrade to POLICE (protect, optimal loading, ice, compression, elevation). And it’s the optimal loading part that’s key.

Early movement, early rehab, early exercise equals faster and better recoveries. The best example of this is a knee replacement. The morning after you’ve been cut open, bones and joint removed replaced with titanium then stitched back together again, you’ll have a nasty physio like me getting you to stand up and walk around…while you’re still drugged up, in your flattering surgical nightie and connected to a bunch of drips and beeping machines.

Why? Because we know it’ll be that much better later down the track.

What simple exercises can you recommend to get someone back moving again?

In regards to getting back into exercise, whether you have been absent due to injury or you have just had a large break due to the hectic nature of life, the key is to take it slowly but keep it on a daily basis.

Generally we have all done some form of exercise at some point in our life, whether it was in a sporting team, a PE class at school, or a group fitness session.

The first place to start is by simply walking.  Increase your endurance and your physical capacities to handle 30 mins of brisk walking.  Stretches to your lower limbs should be performed prior & post walking that include stretches to your calves, hamstrings, quadriceps and gluteals.

If you are still unsure, the professional staff at Queen Street Physiotherapy can advise you on all your stretches or exercise program.



How can a physiotherapist help with back pain?

Not all lower back injuries have a singular diagnosis and a sequential rehabilitation program. Lower back pain management strategies need to be designed specifically for your particular injury and lifestyle. First and foremost, a physiotherapist can reduce your immediate pain with treatment including manual therapy, massage therapy and strapping. Alleviation of pain will be your paramount concern and is an important first step in your rehabilitation.  Physiotherapists can advise you on the duration of your rehabilitation and treatment needs, which will vary for each individual and injury. It is also important to be aware of the correct techniques for activities and daily living to support your injury throughout the rehabilitation phase. A physiotherapist can advise you:

  • When to rest
  • When to start the right exercises - should you be stengthening muscles or stretching them?
  • minus
    Tips on getting to sleep and staying asleep with your back injury
  • minus
    How to lift objects correctly
  • How to manage your pain outside of your treatment session - should you be icing or heating when it's sore and for how long? Should you be taking anti-inflammatories? 

Thanks Phill. 

Stay tuned for Phill's next interview in December. 

In the meantime, if you have any questions regarding this interview, treatment of back pain or other health issues please do not hesitate to contact Phill and his team by visiting the Queen St Physiotherapy website.

Queen St Physiotherapy offers ergonomic advice, custom made orthotics, running assessment, hydrotherapy, dry needling, remedial massage, exercise and stretching programs.

Top 4 Tips to Stopping Cyclist’s Cramps

Cramps. They are the death of every cyclist. 

We have enlisted the help of Physiotherapist, Sean McCoola from Maximize Health Group to give us some tips on how to better manage cramps.

Sean brings experience to his clients from 18 years as a physiotherapist and has a particular interest in sporting teams and rehabilitation programmes.

Sean sat down with us earlier this month to give us his top 4 tips on stopping cramps. 

Take it away Sean.

4 Factors to Help Stop Cramps

At Maximize Health we are often asked by the cyclists we treat about cramps and how to stop them.

Below is a discussion and guide to what we have seen work over the years. The simple reminders below will enhance performance and aid general well-being and if you fit the pieces of the puzzles together for you, it may even stop cramps for your cycling endeavours.

Studies have shown that cramps are associated with high intensity activity and muscle fatigue. Yes, no proverbial Sherlock!

This directs you in the first instance to get your training and race plans suited to you and your current sustainable exertion level.  And then address other factors below including hydration, stretching, electrolyte balance and nutrition which are often quoted as areas to address to avoid the possibly devastating effects of cramping while out on the bike (e.g poor race performance, pushing the bike home), or after the event/training (jack knifing in the car when driving home from the charity ride).

My advice is to increase your awareness of when the cramps occur for you and then experiment with the factors leading up to the occurrence.

Sorry guys and gals there are often no quick and easy answers for the road warriors.

1. Hydration

Hydration continues to be a major topic in the discussion of cramps. I take a wide gauge view at this and recommend that appropriate hydration needs to be an everyday activity especially if training loads are high and frequent and when coming into summer months and/or humid conditions. Some cyclists are heavy sweaters, and this loss in fluid is often associated as a major contributing factor to cramps. 

Select Content Template

Experiment

Weigh yourself before and after a one hour ride.
If you weigh less afterwards you may need more fluid intake.
If you weigh more, maybe you’ve gone too hard on the sports drink. 

Hydration levels are imperative for optimal performance and getting this part of the puzzle to fit for you may also reduce cramps.

2. Stretching

Another risk factor for cramping demonstrated in studies is low or irregular rates of stretching.

Don’t get too hung up on the bio-physiology but go by the rule that if muscles are tight (shorter than optimal resting position) and/or if they have trigger points (localised areas of increased muscle firing that resets and increases the resting tone of the whole muscle), this seems to increase the chance of cramping.

Optimal muscle length will also reduce discomfort and improve performance. Winning all round! Unfortunately some riders will just have to stretch and address trigger points more than others.

Tip 1

 Stretch each offending muscle group for a minimum of 2 x 30 seconds.
For muscles that have increased tone such as calves stretch for at least 1 minute.
Complete this process 3 - 5 days a week. 

Tip 2

 Try trigger point work or foam rolling to get optimal results

3. Electrolytes or Die

We all need electrolytes to maintain correct muscle function to help maintain life as we know it.

There is little scientific evidence stating that electrolyte levels play a significant role cramping.

Optimal electrolyte balance may assist in cramp prevention, but how much is enough?

Once again this will come down to experimentation for individuals. Test the various input options (Drinks, gels, salt tabs or food) for brand, concentration levels, timing etc.

There are now companies doing sweat tests for the salt/sodium levels in your sweat. But a general guide is if you have the white ring or streaks around your neck on your jersey after you ride you are possibly sweating out electrolytes, including, sodium/salt in higher than optimal levels, and this may need to be addressed.

4. Nutrition

What we put into our bodies leading up to and on race/training days may affect cramping incidence.

A balanced diet must help performance and general health and well-being. “Balanced” will mean different things to the individual and depend on physical and even mental load.

I believe the overall and longstanding aim is for you to give yourself the right amount of energy to fuel your body for tasks you are giving It, in acceptable input formats to promote continued health to train at your desired increased intensities for longer.

Tip 3

 Nutrition, like hydration, is an everyday task.

Nutrition plans should include the weeks and days before, on the day, and during the event.  

As always folks, tips like these may not be fully comprehensive for your situation and seeking out a health professional is a worthwhile exercise if cramping persists and is affecting your ability to bring your 'A' game.

This discussion is by no means exhaustive and there are many other cramp prevention strategies that may work for you (my Mum swears by camphor in a sock by your feet under your bottom sheet in bed overnight to prevent calf cramps).

What we have found over the years is that if you address the above factors and fit the pieces of the puzzle to your situation it will at the very least improve your performance and enhance your health and well-being.

Now on your bikes and enjoy.


Thanks Sean. Stay tuned next month for another article from Maximize Health Group.

In the meantime, if you have any questions regarding these tips, prevention of cramps or other health issues please do not hesitate to contact Sean on +61 7 3343 5494 or [email protected].

Veteran cyclist sues local council over dodgy grate

A passionate cyclist who became a quadriplegic after his bicycle wheel got caught in a treacherous drainage grate is suing Mornington Peninsula Shire (Victoria) for negligence, the Mornington Leader reports.

Before the accident, Gerry Russell – a fit and healthy seventy year old – was enjoying his retirement doing the things he loves: skiing, yachting and riding. Previously a physical instructor in the Royal Navy, Mr Russell used to ride up to 400 kilometres a week before he was flung from his bicycle on 15 September 2015. Now, Mr Russell has lost movement in 98 per cent of his body.

Mr Russell is suing the Shire for pain, suffering and loss of income.

Gerry Russell

Mr Gerry Russell (Source: Herald Sun)

 

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[h2_heading]The Facts[/h2_heading]

Mr Russell told a local Mornington newspaper that he was cycling along his usual route, when he carefully moved to the side of the road to allow a car to pass.

“Then my wheel stuck and I flew over the handlebars — I was wearing a helmet so that took the brunt of the force, but I snapped my neck,” he said.

“As soon as I came to, I tried to move and realised straight away that I couldn’t.”

Mr Russell’s wheel caught on an old drain – thousands of which remain in place across the shire.

Dodgy Grate example

Example of the old grates in the area (Source: Herald Sun)

Misaligned drainage grates have caused multiple riders to crash in recent years. According to Mr Russell, at least three other cyclists he knows have been injured in similar accidents. Local cyclists are urging the council to replace the old drains.

 

[h2_heading]The Outcome[/h2_heading] There is no current estimate for the compensation sought by Mr Russell. The case is listed for trial in May 2018.

However, local councils across Australia are granted a certain level of protection against claims like this. This is because it is simply impossible for local councils to ensure all roads are in good condition at all times.

The Civil Liability Act 2002 provides that road authorities are not liable for accidents arising from a failure to carry out or consider road work, unless the road authority had actual knowledge of the issue which caused the accident.

This means that Mr Russell will need to prove that Mornington Peninsula Shire knew that the grates were a risk.

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You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

[h2_heading]The Consequences[/h2_heading]

 If you are injured due to someone else’s negligence, you may be eligible to receive compensation for your injuries. However, you must prove that the local council responsible for the road knew (or should have known) of the problem.

Usually, this requires evidence of previous complaints made to the local authority about the road to prove the Council knew the hazard existed. Evidence that the Council had recently inspected the road, or had not inspected the road in a long time, is also useful.

If you notice an issue with the road, you should contact Council. If another cyclist is injured because of that same issue, your complaint will be very useful evidence for their claim. Take care, and look out for your fellow riders.


Written by Emily Billiau | Principal

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Cyclist found at fault for hitting an obstacle and colliding with fellow cyclist

The Facts

 Michael Franklin lived in Canberra and rode his bicycle to and from work each day.  He regularly rode home from work with his friend, David Blick.

At about 5.30pm on 17 June 2009, Michael and David left work on their bicycles.  They were riding in a bicycle lane which ran alongside the roadway of Commonwealth Avenue and Capital Circle in Canberra. It was already dark but both bikes were fitted with powerful lights and there was good lighting in the area. There was a heavy flow of traffic alongside the bike path, as it was around peak hour.

Michael and David were riding at about 25 kilometres per hour. David was riding slightly in front of and to the left of Michael. David’s bike hit a piece of wood approximately 2 metres long that was lying in the bicycle lane directly in his path of travel.

When his front wheel struck the wood it caused his wheel to slide out from under him.  David and his bicycle fell towards Michael. Their wheels locked together causing them to fall from their bicycles.  Michael was thrown onto the roadway and directly into the path of oncoming traffic.  He was run over by a motor vehicle. He attempted to crawl off the road following the accident but could not move his legs.

Michael sustained severe injuries in the accident including a fractured pelvis, a fracture to his lower back, internal bleeding, severe bruising and abrasions.  Michael spent 28 days in the hospital and underwent surgery to his pelvis.

An external fixator was attached to his pelvis and protruded 10cm from his body where it was attached to rods.  When Michael left the hospital he continued to suffer severe pain and infections from the device.  The screw inserted into his body impinged on his sciatic nerve causing him severe pain.  The screw was subsequently removed in 2012 but Michael continued to suffer ongoing pain in his lower back.  He had to undergo extensive treatment up to the date of the trial.

The injuries affected Michael in his employment as an Applications Developer.  Following the accident, he had to halve his working hours to an average of 25 hours a week with ongoing time off work due to his symptoms. 

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There was no evidence to suggest that the motor vehicle driver was at fault for running over Michael. Michael, therefore, sued David for failing to keep a proper lookout for dangers on the bicycle path and failing to avoid a collision with Michael.

David denied he was at fault for the accident.  He argued that Michael should not succeed because David’s duty to Michael was only to take reasonable care in all the circumstances and he did that.  He also argued that Michael contributed to the accident by failing to take proper care for his own safety whilst riding his bicycle.

Bicycle Accident Statistics

This situation is not unheard of. The graph below was produced by the Department of Infrastructure and Regional Development and shows the hospitalised injuries for cyclists from 2008 to 2010 and from 2011 to 2013 involving other vehicles including bicycles.

The data reveals that 85% of cyclist hospitalisations involved another vehicle (mostly a light vehicle) however 1 in every 6 cycling accidents were due to a collision with another cyclist.

This clearly shows that collisions between cyclists resulting in hospitalisations are more common than you might think.

The Judgment

The matter was heard in the Supreme Court of the ACT by Justice Burns.

Who was at fault for the accident?


Justice Burns heard evidence from Michael and David in relation to the circumstances of the accident.

There can be no doubt that the defendant owed other road users, particularly cyclists such as the plaintiff, a duty of care to exercise reasonable care to avoid causing injury to other road users.  In my opinion this duty extends to exercising reasonable care to avoid running over objects on the cycleway likely to cause him to lose control of his bicycle.


Award for damages


Justice Burns believed Dr Le Leu was the person most qualified to give evidence in relation to Michael’s working hours.  He accepted his evidence over the evidence from David’s orthopaedic surgeon and neurologist.  Justice Burns was satisfied from that evidence that Michael would only be able to work 25 hours a week until his retirement age of 67 years.

He awarded Michael $1,659,392.75 in damages.  Of that award, $335,000.00 was awarded for loss of wages to the date of trial and $838,925.75 of that award related to his future loss of earnings to retirement.


Cycle Law's Opinion

Medical Evidence​

This case resulted in a very good outcome for Michael.  The fact that Michael obtained expert advice from an occupational physician was crucial to the successful outcome of his claim.  The judge accepted the evidence of the occupational physician and awarded him compensation on the basis of that evidence.

David did not provide any evidence from an occupational physician/therapist.  Because of that, the judge accepted Michael’s medical evidence over David’s medical evidence.  Michael’s claim for loss of earnings represented a major component of his claim for damages.

Fault for the Accident

Cyclists often travel in groups and ride closely together. That is the nature of cycling however it is important to remember that as a cyclist you have to exercise reasonable care to avoid causing injury to other road users. This extends to other cyclists you may be riding with. This case shows the importance of cyclists keeping a careful lookout for any obstacles in their path of travel so they can take evasive action to avoid causing injuries to other cyclists.


The Consequences

The importance of obtaining the correct medical evidence

It is important in any case to ensure you obtain the correct expert evidence.  If your work has been affected by the accident then it is crucial to obtain a report from an occupational physician/therapist.

If you have that evidence to support your claim you are more likely to be awarded damages for loss of earnings in the past and future.

The importance of cyclists obtaining public liability insurance

In the case outlined above, Michael’s compensation was paid out by David’s insurer.  Although claims are lodged against the rider that caused the accident they are likely covered by public liability insurance either through the other party’s house and contents insurance or through bicycle insurance.  This means that although someone might be suing their fellow cyclist, any compensation that’s awarded will be paid by the insurance company and not the cyclist.


Written by Emily Billiau | Principal

Cyclist involved in dooring accident awarded $700,000

The Facts

Heather Bolton was cycling along Pittwater Road, Sydney with five of her friends when suddenly she found herself splayed across hard bitumen, in the middle of the road.

She had been the victim of 'dooring’.


Dooring is where a motorist unexpectedly opens a car door into the path of a cyclist, who then slams straight into the door. Cyclists are often thrown off their bike over the door, or onto the road (and into oncoming traffic).


Before this matter went to trial, the driver and the cyclist tried to settle the case privately. Hugh Latham, the driver, admitted that the accident was his fault. After some negotiations, Latham and Bolton agreed that an appropriate amount of compensation for the Bolton’s injuries was $700,000. But Latham argued that that amount should be reduced, saying that Bolton had contributed to the incident.

The Court needed to decide whether the cyclist was responsible for the accident in any way. If she was, she would not receive the full $700,000 she was entitled to.

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The Driver’s Story​


According to Latham, he pulled over and parked his white van. The left side wheels were touching the kerb. He checked his right-hand side wing mirror. He saw nothing; no vehicles, no pedestrians and no cyclists. He opened the door about a foot (or 40 centimetres), not wide enough for him to get out. With his hand still on the door, Latham felt the impact of Bolton slamming into the metal.


The Cyclist’s Story

 Bolton claimed she was cycling in the bicycle lane as close to the right-hand side as possible. She had decided this was the safest route. Bolton told the Judge that she remembered noticing the white van parked ahead of her, but she could not recall the collision. A witness claimed that the van's door was opened when Bolton was about 1 metre away.


The Decision

Bolton agreed that if the door had only been opened about 40 centimetres and she was cycling where she said she was, she would have missed the door. The Judge said that either Bolton was cycling much closer to the van than she admitted, or Latham had opened the door more than 40 centimetres.

To convince the Judge that she was not in the wrong, Bolton gave evidence of her training in safety and the need for vigilance around parked vehicles.

Bolton’s evidence was convincing, and the Judge decided that Latham must have opened the door more than he had admitted and that Bolton had not contributed to the accident in any way.

“The plaintiff was a very impressive witness. She … gave a distinct impression of a person who gave full effect to her safety training,” the Judge said.


The Outcome​


This case shows how important it is to always be vigilant and employ best practises whilst cycling. The Court appears to look fondly upon those who take due care on the roads. Although Bolton was unfortunately injured, she was awarded the entire sum of $700,000 – because she was able to convince the Court that she was a safe cyclist.

.

Horrific road rage attack leaves courier cyclist with serious injuries

The Facts

A motorist who drove at a cyclist in the UK, knocking him off his bicycle and throwing him into a tree, has been sentenced to three years in prison, reports Cycling Weekly.

Justine Henshaw-Bryan, aged 25, knocked Damien Doughty, 38, off his bike in the incident on February 10, 2016, after an altercation over her using her phone whilst driving.

Mr Doughty, a freelance courier, had been cycling home in Stoke Newington, North London when he had confronted Ms Henshaw-Bryan after spotting her using her phone whilst at the wheel.

Ms Henshaw-Bryan then gave Mr Doughty the finger and told him to “f*** off”, to which Mr Doughty responded by kicking the side mirror of the car before cycling off.

Mr Doughty told the court:

“Quite quickly, I realised the car was chasing me. It was getting very, very close”.

“Realising how close the car was, really feeling like it was going to knock me off, I took a sharp left. I was going 20, maybe slightly more”.

CCTV footage which captured the incident then shows the car swerving to the left, hitting Mr Doughty and sending him flying into a tree, before driving off.


As a result of the incident Mr Doughty suffered a broken hand, punctured lung, and a severe laceration to his liver.

Ms Henshaw-Bryan claimed that her then-boyfriend had grabbed the wheel and forced her to swerve into the cyclist. That claim was rejected by the Court.

The Criminal Case

The Court by jury found Ms Henshaw-Bryan guilty of causing serious injury by dangerous driving.

Sentencing Judge Gregory Perrins told the driver that her actions could have killed the victim, and that she must have been aware of the risks of her dangerous driving.

"This was a calculated attempt to run him over and use your car as a weapon," he said.

"It would have been obvious that to do so would have carried significant risk of injury (to the cyclist)."

He added that “those who are unable to control their temper when driving and think cyclists are fair game must be dealt with severely.”

Judge Perrins sentenced Ms Henshaw-Bryan to three years in prison in the UK.

Compensation

Mr Doughty spent two weeks in hospital, including 3 days in intensive care following the accident. As a freelance courier, Mr Doughty suffered financially as a result. He was unable to work and so lost his income. As a result, he struggled to pay his bills and meet his rental payments.

In Queensland, a cyclist injured in a road rage accident may be entitled to compensation.

That compensation would be paid through the Compulsory Third Party (CTP) insurance attached to the at-fault vehicle indemnifies the driver for the personal injury to the cyclist in the motor vehicle accident.

Written by Emily Billiau | Principal

Cyclist who collided with boom gate sues Council for $1.16 million

Champion cyclist Alex Simmons had trained daily on the same stretch of bike route through an open boom gate near the St George Sailing Club.

The cycle route was used frequently by thousands of cyclists and there was an expectation that the boom gate would be open – because it always had been.

Until the morning of 11 April 2007 when someone forgot to open the gate.

Riding about 30km/h, Mr Simmons had no time to brake and smashed into the steel beam of the gate.

The gate was difficult to see and had no signs to alert of an obstruction ahead, meaning the gate essentially came “out of nowhere”.

Tragically, Alex’s injuries were so severe that surgeons were forced to amputate his left leg beneath the knee.

The New South Wales Rockdale City Council had constructed the boom gate to enclose a stretch of road that was adjacent to the sailing club’s car park to stop “hoons doing burnouts”.

Despite the sailing club having an informal agreement with the Council allowing them to lock and unlock the gate at its discretion, the Council had legal authority and control over the boom gate.

To make matters worse, two fellow cyclists had also had a collision with the closed boom gather in similar circumstances. One even alerted the Council to the hazard and was told it was simply a ‘freak accident”.

Mr Simmons brought a claim against the Council, stating they were aware of the hazard and owed Alex and other cyclists a duty of care in ensuring the route was safe.

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The Issues

The Court had to consider the 4 critical issues:-

  1. Whether there was a duty of care owed by the Council to Mr Simmons (that is, the responsibility to ensure the safety or well-being of Mr Simmons);
  1. Whether the Council breached its duty of care to Mr Simmons;
  1. Whether the Council’s breach caused injury to Mr Simmons;
  1. Whether Mr Simmons in any way contributed to the incident and his injuries (for example through his speed or by failing to observe the gate).

The Decision

Mr Simmons argued that the gate presented a “perceptual trap”, such that he wasn’t able to detect that the gate was closed in time to avoid the collision.

He said that the Council was aware that cyclists used Riverside Drive often through the entrance to the car park which was closed by the boom gate.

The Council denied that they were liable. They argued that Mr Simmons had alternative options available to him to exit the car park and that Mr Simmons failed to take care for his own safety.

Justice Peter Hall of the Supreme Court did not agree, finding that Mr Simmons “could not, and did not detect the boom gate… until it was too late to avoid it”.

The Court criticised the Council for relying on a lax agreement with the sailing club for the cleaner to open the boom gate daily across one of the city’s most popular cycle routes.

Justice Hall said that “in the event [that] the cleaner failed to attend on any day (for any reason) to open the boom gate, the system carried a foreseeable and an inherent risk of failure”.

Justice Hall found that the Council knew that the boom gate presented a hazard and that the system to open the boom gate had failed on multiple occasions. Evidence presented at court highlighted the Council were aware of two additional accidents with the closed boom gate that had occurred in the months prior to Alex’s accident.

Furthermore, it was found that the likelihood of an accident occurring causing serious harm was high as the Council had failed to warn cyclists of a potential obstacle ahead.

However, for Mr Simmons to succeed, he had to overcome a number of evidentiary hurdles.

Evidence had to be collected to prove that the Council owed him a duty of care and that they breached this duty of care.

This included:-

  1. Evidence of traffic signs in the area;
  2. Evidence of the Council’s knowledge of the hazard;
  3. Evidence about alternative routes available to Mr Simmons;
  4. Evidence of the Council’s responsibility for the boom gate;
  5. Evidence that he could not have seen or detected the boom gate before it was too late.

Alex was successful.

The Council was held liable and ordered to pay him $1.16 million in compensation

The compensation awarded to Mr Simmons was calculated by reference to the impact the injuries have had on him and the impact they will have on his future earnings and domestic needs.

What does this mean?

The number of people riding today is phenomenal - and the numbers continue to rise…

Unfortunately, the potential for injury to a cyclist is ever present (whether that be from other road users or public/council hazards).

Recent statistics published by the Royal Society for the Prevention of Accidents in the UK show that about 17% of cyclists sustain serious injuries when involved in an accident.

This case sets a great precedent for claims against Councils.

It confirms that Council’s do owe cyclists a duty of care and that if they breach that duty of care they may be liable to compensate the cyclist.

US Cyclist received almost $4 million after following old signs on ‘dilapidated’ road

The Summary

A Rabbi who suffered permanent traumatic brain injuries after his bicycle was struck by a car has received US $3 million (AUD $3.77 million) in compensation.

Shelaim Furst was riding his bike along Victory Boulevard, San Fernando, USA on 25 August 2010 when Antoine Shehata tried to change lanes behind him, the LA Times reports. Rabbi Furst hit Mr Shehata’s vehicle’s windshield and was thrown 27 feet (8 metres) into the street.

The Rabbi sustained a brain injury and memory loss.

In previous years, Victoria Boulevard was a designated bicycle route. By the time of the accident, it was no longer used for those purposes. But the bicycle route signs remained in place while the route was left to fall into disrepair.

It was alleged that the city of Los Angeles had allowed Victory Boulevard to fall into “dilapidated” conditions, and had created a false sense of security for cyclists by leaving bike route signs in sight.

The L.A. City Council decided not to fight the matter in Court, and instead agreed to the US $3 million settlement without any discussion.

Queensland Cyclist Rights vs Californian Cyclist Rights

Before the histrionics start that Australia is becoming a litigious society like America, let us remind you of the differences. For example, parties that lose a case like the one outlined above do not have to pay legal costs in America. In Australia, the losing parties are required to pay these costs and often the costs of the winning party. Typically, this means bogus or weak cases that are unlikely to stand up in a Queensland Court are never pursued.  So for a case to get up in Australia means that a Judge has considered the defence lawyers argument to be weaker than the claimants argument

In this instance, the Rabbi sued the local Council rather than the driver. Although not reported, it is widely speculated that Mr Shehata’s (the negligent driver) insurance policy was not sufficient to cover the compensation required by the Rabbi, or was not insured at all.

The case would be different in Queensland, where drivers are required by law to have CTP insurance. Therefore, if any claims would be against the driver of the at-fault vehicle (or their insurer).

If you are struck by an uninsured vehicle in Queensland, your claim can still proceed against a body called the Nominal Defendant. The Queensland Government created the Nominal Defendant in 1961, so that persons injured by unidentified or uninsured drivers could still seek compensation.  The Nominal Defendant is funded out of the compulsory third party system.

Had the Rabbi fallen because of the ‘dilapidated’ conditions, only then would he have been able to raise a claim against the local council.

What this means for Queensland cyclists

If this case occurred in Queensland, and it was the case that the driver was uninsured, the claim for compensation would likely have proceeded against the Nominal Defendant. However, the Nominal Defendant would have recovered its costs from the driver.

This claims process is very similar to the process for claiming compensation from a third party insurer.

LA City Council
Los Angeles City Council in 2015 (Source: LA Times)

Written by Claire McHardy | Solicitor

Bus V Bike: A win for Cyclists

The Facts

A 38-year-old cyclist, who collided with a bus passenger exiting a bus, has been awarded €15,000 (AUD $22,401.60) in compensation, the Irish Independent reports.

On 31 January 2014, Tracey Maher was cycling along a dedicated cycle lane on Swords Road, Dublin, when a bus overtook her. The bus pulled up at a bus stop a little along the road, and a passenger hopped out on to the pavement in front of Ms Maher.

Ms Maher didn’t have time to stop her bicycle, but she did try to swerve around the pedestrian. This caused her to fall from her bicycle, and fracture her hand.

 

The Court Case

The cyclist decided to sue Dublin Bus and Fingal County Council. She said the bus lane should have had a ‘give way’ sign for cyclists at the bus stop. She also said that the bus driver should have seen her coming, and not allowed passengers to exit the bus until she had passed.

Dublin Bus’ position was that Fingal County Council was responsible for the incident, because the bike lane was poorly maintained.

The Council denied this argument, and said there was clear warning on the cycle lane indicating to cyclists to give way to pedestrians.

The Judge did not agree with the Council, and found that the give way sign was hard to see. However, the Judge did find Dublin Bus negligent, because the bus driver failed to see Ms Maher on her bike. CCTV footage showed that the driver did not look in the bus’s mirror before opening the doors.

The Judge awarded Ms Maher €20,000 in compensation. However, the award was reduced by €5,000 because Ms Maher should have been aware that passengers could have been stepping off the bus.


What if this happened in QLD?

If this case had occurred in Queensland, the outcome would likely have been similar. However, the outcome was entirely dependent on their being CCTV of the bus driver failing to check his mirrors before opening the bus doors.

In recent years, CCTV cameras have been installed in the majority of Brisbane City Council’s fleet of busses. However, if the accident had involved a bus in a rural town, it is likely that CCTV footage would not be available. In that instance, the outcome would depend upon whether the local council negligently failed to keep the bike paths and signs in proper order.

However, local councils across Australia are granted a certain level of protection against claims like this. This is because it is simply impossible for local councils to ensure all roads are in good condition at all times.

The Civil Liability Act 2002 provides that road authorities are not liable for accidents arising from a failure to carry out or consider road work, unless the road authority had actual knowledge of the issue which caused the accident.

This means that if you are injured in an accident which was caused by a problem with the road, you may be eligible to receive compensation for your injuries… but you must prove that the local council responsible for the road knew (or should have known) of the problem.

Written by Claire McHardy | Solicitor

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