We don’t need to explain the phenomenon of near-misses.

They happen far, far too often on our roads.

We often hear stories of people too afraid to get back on the bike after a near miss.  

So much so we decided to ask for some expert advice on the matter.

Brisbane Psychologist Romana Bowd has put together a quick article on the mental impact near misses can have on cyclists.

Discover how to identify psychological trauma and what your next steps should be.

As a driver of a car, bike rider or even pedestrian we can be involved in a significant accident that can leave not only physical injuries but also psychological injuries.

However we can suffer psychological injuries due to a ‘near miss’ or even witnessing an accident. These injuries can leave emotional scars that are as traumatic as physical ones.

We refer to these emotional problems as Post Traumatic Stress Disorder (PTSD) if a person’s emotional state remains unstable many days or months past the original incident.

A person is diagnosed with PTSD if there are any emotional or environmental triggers that can bring back memories of the trauma accompanied by intense emotional and physical reactions.

Symptoms may include nightmares or flashbacks, avoidance of situations that bring back the trauma, heightened reactivity to stimuli, anxiety or depressed mood.

It also can include:

Often people do not consider themselves to be suffering from PTSD because it is often associated and most commonly reported in war veterans and just witnessing an accident or being involved in a ‘road accident’ is under-estimated by most of us as not serious enough to seek help.

However, health professionals consider that anyone subjected to severe or sudden stress needs to be treated seriously just as if they had a physical injury.

PTSD can occur in anyone of any age, gender, culture and socioeconomic background.

If you are suffering  from symptoms, then it is recommended that you go and see your GP.

Your GP and you can assess whether it would be helpful to see a psychologist, psychiatrist and/or start medication.

If PTSD is severe it does not just ‘go away’ often our brain cannot erase the memories of the incident and it is very important to seek help.

Romana is a qualified psychologist based in Brisbane. For any questions relating to this blog post, psychological trauma or other related issues, please contact Romana using the details provided below.

Dr Romana Bowd PhD, BSc(AppPsych), BSc(Hons), MAPS, CHP, Assoc. CCounsP

Taringa 7 Day Medical Centre

Phone: 3830 5999

Email: [email protected]

If you need immediate help, please contact emergency services on 000 or LifeLine on 13 11  14

Late last year, work had taken place on the Goodwill Bridge to fix the slippery surface after complaints of accidents.

Despite appearances, the upgraded blue surface is still a hazard causing cyclists to lose traction and sustain significant injury, even at really low speeds.

In response to fresh complaints, this month, the government has installed caution signs on the entrance to bridge instructing cyclists to “dismount when wet”.

Evidence (including likely expert evidence) would ultimately need to be obtained to support a case in negligence against the Sate and/or their contractors, servants or agents.

We would argue that the surface:

We would say that the existence of the surface created a specific hazard which posed a foreseeable risk of injury to cyclists.

The State Government were and still are aware of growing issues with the slipperiness of the bridge.
There have been at least nine report of accidents since its resurfacing and countless more prior to that.  

Ultimately, in our opinion, the State have failed in their duty of care to cyclists by:-

If someone (a cyclist) is owed a duty of care by the State 

• and the State breaches that duty of care to them (bad path surface)
• and these people have suffered loss (damages)
• these angry cyclists may very well form a  long line at the court house seeking hundreds of thousands (if not millions) in compensation.

Surely it is just much easier, and cheaper, to put down a non-slip surface over a 400 m bridge?

In June 1817, Karl Drai’s a prolific German inventor, took his two-wheeled Laufmaschine (“running machine”) for a 13 kilometre ride along the banks of the Rhine. The voyage may have only lasted an hour, but it sparked a craze which has lasted centuries.

The number of people riding today is phenomenal, something Karl Drais surely never could have imagined. And the numbers continue to rise!

A report released recently by the Royal Automobile Association of South Australia found that 195 out of 277 collisions between motorists and bicycles were caused by the motorist (that is over 70% of collisions).

​Unfortunately, the potential for injury to a cyclist in a road accident is ever present.

It is statistics like these that revive the age old debate about shifting the burden of proof in collisions involving cyclists.

Currently, Queensland operates a common law or 'fault' based system.  To recover compensation (whether that is for damaged property, injuries or otherwise) the cyclist is required to overcome what is known as the “burden of proof” and prove that the collision was caused by the negligence of the driver of the vehicle.

What many cyclists are calling for is a rule where a motorist will be liable for a crash with a cyclist unless the motorist can show the cyclist was at fault.  What is being suggested is that there be a presumption of fault. 

A presumption of fault would effectively mean a shift in the burden of proof (from the cyclist to the motorist).  

Proponents for a shift in the burden of proof say the change would encourage safer driving by motorists which would in turn lead to safer cycling for cyclists.

It is also said by some that it would simplify the insurance claims process because of the presumption of fault and ultimately result in a reduction in litigation and insurance costs.

Queensland’s largest cycling advocacy group, Bicycle Queensland, have come out this week supporting presumed liability laws and calling for their introduction in Queensland. Bicycle Queensland expect that with awareness of presumed liability laws, drivers would exercise greater care on our roads, reducing accidents and making our roads safer.

Those who oppose a shift in the burden of proof note that its application in other countries has not entirely avoided the issues about fault because most (including the Netherlands) still afford the insurer (or the motorist) the right to argue the cyclist is at fault.  

The cyclist just enjoys the very slight benefit of initially having a presumption of innocence until fault is established.

The debate is generally more focused on the civil arena rather than criminal offences of motorists.

It would be difficult to see the law being altered to assume a criminal offence was committed if a motorist was involved in an incident with a cyclist (irrespective of whether the driver had done anything wrong or not).

There are some more minor regulatory offences or even statutory workplace offences where such a position is adopted but there is much to be said, most would argue, for one of the cornerstones of our criminal system being maintained: the presumption of innocence until proven guilty.

We often hear reports of accidents involving cyclists and cars.

The physical injuries are often well-known.

Trauma is the elephant in the room.

The anxiety and mental problems riders face after they are involved in repeated ‘near misses' can be life changing.

In January 2018, over 50 percent of the riders CycleLaw spoke to suffered psychological trauma as a result of an incident involving a motorist.

Emily Billiau said, "The cyclists who I spoke to listed the same anxiety triggers when getting back on the bike. These included the:

These anxiety triggers, if left untreated, can sometimes develop in to more serious mental illness.

The downward spiral often has a devastating impact on the cyclists ability to carry out their job.

You don't have to physically touch a rider to be liable for the mental harm you cause them.

In the meantime, initiatives such as Bicycle Queensland’s incident debrief service is a valuable support resource for cyclists.

If you would like more information on this service, please visit the BQ website here.

 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. 

​

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.

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 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.

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.

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.

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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.

​

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);

2. Whether the Council breached its duty of care to Mr Simmons;

3. Whether the Council’s breach caused injury to Mr Simmons;

4. 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.