Category Archives for Accidents With Cars

PTSD

The 1 thing no one discusses about near-misses

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.


How is mental trauma related to near misses?

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.


What is PTSD?

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:

  • hyperalertness (exaggerated startle response),
  • sleep disturbance,
  • guilt related to the incident,
  • trouble concentrating,
  • avoidance of activities that replicate the incident in any way
  • avoidance of activities that previously were enjoyable; and 
  • worsening symptoms by exposure to events resembling the original incident.

Does PTSD affect everyone?

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.


What should you do if you are suffering?

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.


Thanks Romana

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

1 Simple Legislative Change That Would See More Motorists Prosecuted

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.

Motorists are still the biggest contributors to road accidents. Do you think they should be presumed at-fault? Take the poll below.  

What is the current law in Queensland?

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.

"

Overcoming the burden of proof and establishing liability or fault can sometimes prove difficult.


Some say that the current law places an unfair burden on the cyclist (the more vulnerable of the two parties on the road).  These people advocate for a system of strict liability.


EMILY BILLIAU - Principal, Cyclelaw

Presumption of fault

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).  

The case for and against strict liability/a shift in the burden of proof

Despite a significant reduction in road deaths in Australia over the past few decades, statistics show a concerning increase in the number of serious injuries amongst our most vulnerable road users (cyclists and pedestrians).


And I don’t think anyone can disagree that action must be taken to reverse this trend.

Emily Billiau

Principal, Cyclelaw

Those for

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 against

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.

Would the change (if imposed) apply to both Civil and Criminal cases?

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.

8 Reasons the 1m Rule Could Cost Motorists $000’s in 2018

"

"Every motorist that overtakes a rider within the legally-required 1 metre could be liable for the mental harm they cause that cyclist…"


Emily Billiau - Principal, CycleLaw

Finances are one things but the trauma of a near death experience is another. 


Fortunately for Queensland cyclists, their peak body, Bicycle Queensland (BQ), has stepped up to the plate to provide a free trauma counselling service for affected riders. 


The ”Incident Debrief Service" is an Australian first.


Leading Brisbane-based CycleLaw Principal, Emily Billiau praised BQ on their new initiative, which sees their members given 24/7 phone-based support from a qualified counsellor.


“This program gives unprecedented support to Queensland riders.  Any service that gives cyclists access to immediate and useful support is a win in our mind.”

The Elephant in the Room. 

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.

Depression among cyclists triggered by road safety incidents could become costly to society.  Should the drivers pay?  Take this poll.

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:

  • 1
    Feeling of fast movement
  • 2
    Sound of brake pads on the rim
  • 3
    Sound of the wind or traffic
  • 4
    Sight of the ground moving below the tyre
  • 5
    Feeling of wind on their face
  • 6
    Smells such as dry air, dust, gravel, moisture, oil, exhaust fumes
  • 7
    Feeling of their arms on handlebars
  • 8
    Proximity of other cyclists or motor vehicles."

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.

and this is where a successful lawsuit against the careless driver begins.

Emily Billiau

Principal, Cyclelaw

Never Hit a Cyclist? 

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

“It is a fact of law that driver's need to give riders at least 1 metre of space when overtaking. 


Failure to do so can leave drivers liable for the psychological harm they cause. 


Times are changing, and motorists can no longer ignore the mental consequences of their blatant disregard for rider's rights."

​​​​Emily Billiau - Principal, CycleLaw

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.

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

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

Cyclist misses out on claim for gratuitous care

The Facts

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.

The Judgment

The taxi driver tried to argue that Gary contributed to the accident by cycling negligently.  However, there was no evidence of this at all and the driver eventually admitted that the driver was wholly at fault.

There was no way Gary could have avoided the collision. This made the Court’s job easier – the Judges were only required to consider the medical opinions about Mr Land’s injuries and to decide his loss of earnings.

The assessment of damages in Gary’s case was complicated by a history of injuries to his back and left knee...

About 3 years prior to the accident, Mr Land had a disc removed in his back and had surgery to relieve a pinched spinal nerve. The Court found that Mr Land had aggravated his previous injuries in the accident, and awarded an amount of $35,000 in general damages.

The Court also found that Gary’s capacity to earn income was reduced by 45% as a result of the injuries he sustained in the accident. At the time of the incident, Mr Land owned and operated Cycle Scene at Victoria Point. After the accident, Gary sold the business because his bad back stopped him from being able to longer carry out necessary tasks. Gary started operating a “pro bike fit” business from his home.  At the date of the trial, he was almost 48 years old and would probably have worked until the age of 63. The Court assessed his future economic loss at $150,690.00.

After a three-day trial, Mr Land was awarded $382,690.00.

Expert Opinion

This was a great outcome for Gary.  However, the damages awarded did not include any amount for past or future gratuitous care and assistance.

This is because the Court was unable to assess the amount of care and assistance that Gary required after incident or would require into the future.

Before the accident, Gary was solely responsible for washing the family cars, tending to the garden and washing up.  He shared the house cleaning and grocery shopping with his wife.

Gary told the Court that after the accident, his wife had had to take up a more significant part of the housework, help him with his personal grooming and take care of the couple’s 4-week-old daughter.

However, the Judge needed to see a proper estimate of the hours Mrs Land spent providing care and assistance to Mr Land.

The Judge said:

“there was no detailed evidence before me from which I could even start to make an assessment”.

The Judge pointed out that the claim that Gary's wife had provided an estimated 45 days of care to Mr Land was not at all helpful.

If the hours of care and assistance Mr Land received had been set out in detail before the Court, he could perhaps have been awarded damages for that past care as well for the care he will require in to the future.  

Care is often disregarded or forgotten by many claimants – in fact it only constitutes 1.549% of the average claim.

In my honest opinion, if claimants were meticulous and thorough in recording their care, it would be easy to increase this figure and not leave that money on the table.

The Consequences

If you are injured in an accident, it is important that you keep a record of all the care and assistance you receive – from friends and family as well as hired help.

For example:

  • if you usually mow your lawn but because of your injuries you have to hire a gardener, make sure you keep the receipts
  • if you are usually in charge of cooking the family meals but you can no longer do so, make a note of how much time your partner spends cooking those meals
  • if you usually share the grocery shopping with your partner but now they have to go alone because you can’t walk, write down how much time that shopping takes.

Written by Claire McHardy | Solicitor

Cyclist hit by car is awarded $440,000 in damages

The Facts


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.

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The Outcomes

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.

 

Cycle Law's Opinion

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.

Cyclist Casualties

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.


Cyclist proves police evidence is unreliable

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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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.

The  Consequences

 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.

No Helmet? Drunk? No Problem!

EMILY BILLIAU

Principal

If a driver intentionally hits or runs a cyclist off the road, they are liable for that cyclist's injuries.

And depending on circumstances of the accident, that might be irrespective of whether the cyclist is drunk, helmetless, riding two-abreast or riding out of the cycle lane.

We can all agree riding drunk and without a helmet is illegal.

But according to the courts (and we tend to agree with them), these actions won't always reduce your compensation, so long as they don't contribute to the accident.

Find out how the courts came to that conclusion (in Nominal Defendant v Rooskov [2012]) and what a cyclist's legal rights are when they are drunk and helmetless. 

Nigel's Story

Let me introduce you to Nigel Rooskov. 

Nigel was an active young man.

It was a Wednesday evening, and he had knocked off work early. He decided to join his workmates for a few drinks and a roast lunch at the bowls club not far from his home in Helensburgh, NSW.  

He was about 6 schooners deep when he went to head home. It was about 3:30 pm. 

Nigel was heading down Walker Street when he was clipped by a white car travelling at about 80km/hr.

Forced onto the shoulder, Nigel then hit a ditch and was catapulted from his bike.

He suffered extensive back injuries and lacerations to his face and upper body. He also suffered significant head injuries as he wasn’t wearing a helmet at the time of the accident.

Nigel was in and out of consciousness when the police and ambulance arrived.

He could recall that a car approached him, and he heard screeching like a car trying to brake but not much else. However, he didn't know the registration details of the vehicle that caused the accident or even its colour or type.

...And the car never stopped to see if Nigel was okay.

Nigel wanted to bring a claim against the driver who hit him.

But what happens when the at-fault driver isn’t known? How can you get the compensation you deserve?

A body exists under the Motor Accident Insurance Act called the Nominal Defendant. This body acts as a compulsory third party (CTP) insurer where a negligent driver's motor vehicle is unidentified and does not have CTP insurance.

In other words, where a car cannot be found or identified or does not have CTP insurance, a claim for compensation can be brought against the Nominal Defendant.

Emily Billiau

PRincipal

So that's what he did. 

Nigel brought a claim against the Nominal Defendant.

But Nigel's claim wasn't as straightforward as he first thought. At trial, liability was in contention. 

It would come as no surprise that the insurer believed that Nigel should be held somewhat responsible for the accident and his injuries, being that he was riding drunk and helmetless.

The insurer (aka Nominal Defendant) argued that Nigel was 40% to blame for the crash and his injuries. And as such Nigel's compensation should be reduced by 40%

The Court was forced to consider two critical issues:

  • Whether Nigel’s intoxication contributed to the crash; and
  • Whether his decision to not wear a helmet contributed to his injuries.

The Issues

Alcohol

Nigel had consumed around 6 schooners of heavy beer before the crash.

An expert gave evidence at trial that his blood-alcohol level was likely in the range of 0.196 – 0.221g.

He went on to say that a person in that range was at least ten times more likely to suffer injury.

And while Nigel’s blood alcohol level was almost 4 times that of the legal limit, the Court believed that this didn’t contribute to the accident.

Why?

EMILY BILLIAU

Principal

“In Court, the burden of proving a cyclist contributed to their injuries is on the at-fault party.

Simply put, it was up to the insurer to prove that:

  • 1
    Nigel’s drunkenness would have interfered with his judgement and
  • 2
    that this caused his injuries.

While Nigel may have been able to speed up his reaction to hearing the approaching car, it wouldn’t have changed his course of action. He would still have been driven into the shoulder of the road and fallen from his bike.

In the end, the Court accepted that Nigel was intoxicated but agreed that:

  • check
    There was “no evidence” that this contributed to the crash; and
  • check
    Even if he were sober, he would not have likely responded any differently.

Nigel wasn't penalised because he was riding drunk. Do you think that's fair? Have your say below.

Helmet

But just because it's a statistic, it doesn't mean that the law or the courts will agree. 

The Court believed that not wearing a helmet:

  • did not contribute much to Nigel's injuries; and
  • the damage that resulted from this decision was only 'miniscule'. 

Cyclists are required to wear helmets by law. Do you believe that Nigel should have been punished for doing something illegal? Have your say below. 

Why?

If you consider how the Court's establish contributory negligence, the Nominal Defendant had to prove the decision not to wear a helmet would have caused the accident and increased his risk of injury. Again, the burden of proof is on the insurer.

It is true that not wearing a helmet increased Nigel’s risk of a head injury. 

However, and this is important, had Nigel put a helmet on, it would not have changed the course of action or reduced the likelihood of his other significant injuries.

The car would have approached Nigel at speed, hit him and caused him to fall off his bike.

He would still have suffered significant bodily harm (like his back injury), and this would still have impacted his ability to work and live.

The Court mostly agreed with Nigel’s argument.

Ultimately, the Court did accept that Nigel decision to not wear a helmet meant he was guilty of contributing to his injuries. But they said that he was only 5% to blame, rather than the 40% the insurer claimed.

His compensation was reduced by 5% to $557,442.18.

What does this mean for cyclists?

While we would never condone riding intoxicated or without a helmet, this case does show that the Courts will protect cyclist’s rights first and foremost. 

Drivers cannot shirk their duty of care by using a cyclist's actions against them... so long as those actions don't contribute to the accident.

The Courts will assess a situation on a case by case basis. They will look at the bigger picture. 

Emily Billiau

PRincipal

If a cyclist’s wrongdoings did not contribute to the accident, then they should not be penalised for them.

Cyclists who suffer psych injuries from repetitive close passes would do well to understand the position that Courts will take to protect riders.