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

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.

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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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

Gary Land was leading a single file peloton along the left shoulder of Airport Drive, Eagle Farm when a taxi veered directly in front of him and slammed on the brakes. Mr Land hit the rear of the vehicle and was thrown over the boot of the car.

Unfortunately, as is common in claims brought by cyclists, Gary suffered significant injuries to his back and one of his knees. He now also suffers post-traumatic headaches.

Mr Land made a claim for personal injuries against the negligent taxi driver.

Jason, an active and fit 37 year old, was a passionate cyclist. He rode his bike to and from work every day. On the morning of 26 November 2014 Jason was cycling to work on his normal route. As he was riding on the left hand side of Noble Street in Windsor, QLD, a vehicle has suddenly and unexpectedly reversed out of the carpark and directly into Jason’s path.

Jason hit the brakes and attempted to swerve around the vehicle however he was unable to avoid a collision. He collided with the rear back passenger side of the vehicle which caused him and his bike to be thrown over the boot of the car and onto the roadway.

Jason sustained a number of injuries in the accident including:

• fractures to his neck;
• fracture to his right wrist;
• microfractures to his left knee; and
• bursitis to his left elbow.

Jason pursued a personal injuries claim against the CTP insurer of the vehicle that collided with him.

At the time of the accident Jason worked as a Project Manager in the oil and gas industry. He was earning approximately $3,000 net per week. Jason was required to take about 3 months off work as a result of his injuries. He recommenced his employment on a graduated return to work program.Jason found that his neck injury in particular continued to cause him problems. He found he was…

• less efficient;
• less productive; and
• less suited

…to working the long hours required of him in his position as a Project Manager.

Following Jason’s return to work there was a decline in the oil and gas industry and as Jason was struggling with his task load and was made redundant shortly after returning to work.

Due to Jason’s ongoing symptoms he was no longer suited to his role as a Project Manager. Prior to the accident Jason was a highly driven man who had ambitions of progressing his career within the oil and gas industry. His ultimate goal was to progress to the position of COO or even CEO. This career path was no longer possible for Jason.

Jason was unemployed. He needed to find a form of employment that would provide him flexibility in his working hours so he could manage his ongoing symptoms. He therefore embarked on setting up a home-based online retail business and a consultancy business.

To progress his claim, Jason needed to document what his plans were prior to the accident and how his career ambitions would be affected by his injuries. He also had to obtain the evidence to support those claims.

To do this he contacted a past general manager and the current COO of the oil company he had worked for prior to the accident. From those conversations Jason was able to establish that an employee at the company with comparable skills to Jason took over his role and continued to be employed by the company. This evidence was used as a predictor for what Jason would have been capable of had he not sustained his injuries in the accident.

After supplying the insurer with the evidence to support his claim, a conference with the insurer was held. Jason was able to successfully resolve his claim at that conference for a sum of $440,000.
​
 

This case is a good example of how to settle a case on the best possible terms at the earliest opportunity. Unless you support your claims with solid evidence, an insurer will not agree to pay you the compensation you deserve.

The key to receiving a good award for damages is the evidence you gather to support your case. Every person will be impacted by their injuries in very different and specific ways depending on their circumstances.

Jason’s case is not an isolated one. Cycling has become a common and efficient mode of transport for many people. However, there are many associated safety risks for cyclists on our roads. Cyclists continue to remain vulnerable on our roads and errors by motorists that may result in a minor incident for a motor vehicle user can have major consequences for a cyclist.

The Department of Infrastructure and Regional Development has published data concerning the percentage of traffic crash casualties as a result of cycling. The table below sets out the fatalities and injuries (hospitalised and police-reported) arising from cycling accidents on our roads between 2003 and 2014:

Due to an increase in the amount of people cycling on our roads, traffic crash casualties relating to cyclists has been slowly increasing from 12.8% in 2003 to 16% in 2011-12.

Cyclist road safety and the one metre breach rule

In an effort to provide more safety to cyclists on the roads, the one metre breach rule was introduced in Queensland in 2014. With the introduction of this rule drivers must ensure they keep a distance of at least one metre away from cyclists in 60km/hour zones and 1.5 metres from cyclists in zones with greater speed limits. If they do not it is now considered an offence and they risk being charged by the police.

The introduction of this law is an important safety measure for cyclists to increase the awareness of motorists. It means that motorists are more likely to keep a lookout for cyclists on the roads. Unfortunately however, cyclists such as Jason continue to be injured by motorists who fail to keep a proper lookout for cyclists.

It is important to know that if you are injured in a cycling accident through the fault of a motorist, there are avenues you can take to assist with your recovery and be compensated for your injuries.

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.

The Decision

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.