The Facts (Nominal Defendant v Rooskov)
On 18 May 2005, Nigel rode his mountain bike to the local bowls club. Whilst at the bowls club he drank approximately 6 to 8 schooners of beer. Between 3.30pm and 4.30pm that afternoon he left the bowls club on his bike to ride home. He was not wearing a helmet.
It was a fine sunny day and Nigel was riding along the left-hand side of the roadway. He was riding downhill on a straight section of the road. As he was riding along, he heard a whistling noise from behind him, a screech of brakes and was then struck from behind. A vehicle hit the rear, right-hand side or back of the bike (Nigel was not sure which). This caused him to careen off the road. Nigel was thrown from his bike and landed in a ditch. He was knocked unconscious and sustained severe injuries to his back in the accident.
Nigel was found by people passing by who called the ambulance and police. He was transported to Wollongong Hospital for treatment and was subsequently diagnosed with a severe concussion and post-traumatic amnesia.
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One of the main issues at the trial was whether Nigel had been struck by an unidentified motor vehicle. It was argued by the Nominal Defendant that he lost control of his bicycle and ran off the road.
Nigel initially reported that he was struck by a vehicle. This was noted in the ambulance records, police records and initial hospital records. However, at the hospital his memory of the accident became vague and he expressed doubt about what had happened. He reported that to nursing staff, doctors and the police.
A police officer attended the scene of the accident that evening. He examined the scene and took a number of photographs. He also took photographs of the bike and noted there was no damage sustained to the bike. He did find skid marks located at the accident scene but dismissed them as being unrelated to the accident. The officer gave evidence at the trial that he was of the view that Nigel had not been hit by a motor vehicle.
Nigel’s father, a retired police officer, attended the accident scene two days after the accident and undertook his own investigations. That included taking a detailed sketch plan of the accident site with details of all relevant measurements of the area and the skid marks located at the accident scene. He also reported that the skid marks were very dark at that time and faded over the course of the next week.
Nigel gave evidence at the trial in which he maintained he had been hit by a vehicle. This was despite the fact that he later lost his memory whilst in the hospital and became unclear on what had happened.
Despite the evidence of the police officer at the trial, the judge held the following view:
“The difficulty I have with the skid marks is that they were consistent in location and presence and time with the sworn evidence of the plaintiff and consistent with versions he had given at various times….”.
Nigel’s evidence, the records given to the various medical personnel and the skid marks, persuaded the judge that Nigel had been hit by an unidentified vehicle. The judge awarded damages to Nigel for his injuries in the sum of $586,781.24 but deducted 5% of his damages because he was not wearing a helmet.
The Nominal Defendant appealed the judge’s decision. They argued that Nigel was not hit by an unidentified vehicle. The court of appeal did not agree with the Nominal Defendant and held that the original assessment made by the trial judge was correct.
Nigel was successful despite the fact he sustained a head injury, had a poor recollection of events after the accident and the investigations undertaken by police were not favourable to his case.
Cycle Law Opinion
The trial judge did not accept the evidence of the police officer at the trial. The fact that Nigel’s father also investigated the accident scene shortly after the accident assisted Nigel to win his case.
Nigel’s loss of memory in relation to the accident whilst he was in the hospital was not enough to persuade the judge that Nigel was incorrect when he initially stated he was hit by a vehicle. There was sufficient evidence contained in the various records to show that he did initially report he was hit by a vehicle. Further, the location of the skid marks at the accident scene were consistent with Nigel’s version of events.
Head injuries in accidents are more common than you might think and memory loss can be a side effect of a head injury. However, this does not mean you will lose your case even if there are no witnesses to the accident.
The graph below is the percentage of the types of injuries sustained in accidents from 1 July 2007 to 31 December 2016, including head injuries.
When head injuries are compared with other types of injuries they actually represent the fifth most common type of injury sustained in accidents.
The trial and subsequent appeal of Nigel’s case resulted in a good outcome for Nigel. This case could very well have been unsuccessful if the police officer’s version of events had been believed by the judge.
The important thing to take from this decision is the importance of obtaining your own evidence relating to the circumstances of the accident. Do not rely wholly on the investigations undertaken by the police.
The outcome of this case is proof that despite the fact you may have sustained a head injury and do not have a good recollection of the accident you can still succeed in a claim. However, to ensure success, you need to take appropriate steps to gather all relevant evidence to support your case as early as possible. The best way to do that is to obtain legal representation as soon as possible after the accident so that your legal representatives can undertake any necessary investigations on your behalf.
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.
It’s something that thousands of cyclists all over Australia do every day. It generally goes ignored.
But for Victorian cyclist, Laurie Duncan, it was costly.
Mr Duncan was slapped with a $152 fine for passing on the left of a stationery vehicle in Melbourne’s CBD earlier this year.
Mr Duncan said the car was stationery at a busy intersection in the CBD (the corner of Swanston Street and Flinders Lane). He said that the vehicle’s left-turn indicator was on, but the vehicle was stationery waiting for a pedestrians to traverse/cross in front of it. Mr Duncan alleges that it was unsafe to pass the vehicle on the right.
Pursuant to the Victoria’s Road Safety Road Rules 2009 (regulation 141 (2)), the “rider of a bicycle must not ride past, or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal”. There is an equivalent road rule in similar terms which applies to Queensland cyclists.
It was not disputed that the vehicle had it’s left indicator engaged – the issue was whether the stationary car was in the process of turning left within the meaning of the regulation. Mr Duncan was of the view that it ‘turning left’, as it was stationery at the time he passed it.
Ultimately, the matter turned on the Magistrate’s interpretation of the meaning of ‘turning’. On one view of it, turning is a process involving a series of actions, and when one of those actions stops, the vehicle is no longer in the act of turning. Unfortunately for Mr Duncan, the Magistrate did not interpret the regulation in this way.
The Magistrate upheld Mr Duncan’s fine, finding that he had passed to the left of a vehicle which that was turning left.
“Road rules are designed to ensure the safety of all road users, including cyclists. It seems that even though Mr Duncan thought he was cycling safely and operating within the rules, interpretation worked against him,” CycleLaw solicitor Emily Billiau said.
“It is possible that Queensland police officers may apply a similar road rule strictly here in Queensland, which could see many cyclists face fines. It is something Queensland cyclists need to be alert to.”
By Claire McHardy | (07) 3231 0425 | [email protected]
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:-
- Those that require the cyclist to move the pedals to maintain electrical assistance (pedalec); and
- 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
- On a multi-lane road, cyclists can take up any position within the lane
On a multi-lane road, cyclists can take up any position within the lane. Every cyclist is different. Every cyclist rides in a different way. Some like to occupy a central position on the lane – and they are entitled to do so.
- Cyclists can overtake another vehicle on the left
Cyclists can overtake another vehicle on the left if it is safe to do so, and unless that vehicle is turning left and indicating they will turn left.
- Cyclists can choose whether or not they wish to use a bicycle lane where one is provided.
Cyclists can choose whether or not to occupy a bicycle line. Again, every cyclist is different. Some cyclists may not choose to occupy the bicycle lane – and they are entitled to make this choice.
- Cyclists can ride on the road shoulder, across a continuous white-edge line on a bicycle.
Cyclists are entitled to rise on the road shoulder; however, they must give way to vehicles on the road when moving back onto the road across the continuous white edge line.
- Cyclists can ride across pedestrian crossings situated at traffic lights if they:
Cyclists can ride across a pedestrian crossing situated at traffic lights if they:-
- Proceed slowly and safely;
- Give way to any pedestrian on the crossing;
- Keep to the left of any oncoming cyclist.
- Cyclists want motorists to understand the road rules.
By gaining a better understanding of the rules regulating cyclists and by following careful practices behind a wheel, motorists will make our roads safer. It is about mutual respect and understanding.
2. Cyclists are closer than they appear
If you are a motorist and are approaching a cyclist on your left, do not try and squeeze past. The bike is closer than it seems. Stop. Slow down. Wait. Whatever it takes. Do not pass until you can leave plenty of room and pass safely.
3. Cyclists are a vulnerable road user.
Most motorists have a strong respect for cyclists and understand their vulnerability on the road. Unfortunately, there is a small minority of road users who do not share the same understanding, and are ignorant of the vulnerability of cyclists on our roads.
It is a pretty safe bet that is a cyclist comes up against a motor vehicle, the cyclist is going to come off second best. Understand this, and respect all road users.
- Sit properly, and operate your bicycle in the way it is designed to be.
Riding a bicycle whilst not sitting astride the rider’s seat and facing forward can also attract a fine of $121. Similarly, improperly carrying passengers on a bicycle can result in a fine.
- Be cognisant and respectful of others on pathways.
Cyclists have the right to cycle on pathways and shared footpaths. However, failing to keep left, riding on the pedestrian side of a separated footpath, or failing to give way to a pedestrian on a shared path are all breaches of the Queensland Road Rules.
- Leave a reasonable distance between yourself and cars.
Cyclists are entitled to ride on the road. Be mindful though that unreasonably obstructing the path of the driver or following another vehicle too closely may result in a fine.
- Keep you hands on the handlebars.
Failing to keep at least one hand on the handlebars at all times can earn you a substantial fine.
- Ensure your bike is in serviceable condition and has all necessary equipment
In order to legally ride on the road your bicycle must have at least one working brake and be fitted with a bell horn or similar warning device. When riding at night or in hazardous weather conditions you must display lights and reflectors on your bicycle that sufficiently warn other road users of your presence. Failure to do so is a breach of the Queensland Road Rules and could result in a fine.