Land v Dhaliwhal & Anor is a 2012 decision out of the Supreme Court of Queensland.
In this matter the Plaintiff was awarded $380,000.00 in damages after colliding with a taxi and sustaining injury.
The Plaintiff cyclist had been cycling along Airport Drive, Eagle Farm, at the head of a group of cyclists who were training together. The Cyclists were riding on the part of the roadway adjacent to the left hand shoulder of the road, when a taxi, driven by the First Defendant, suddenly and without any warning veered into the lane directly in front of the Plaintiff and stopped almost immediately in front of where the Plaintiff was cycling.
Unable to avoid the taxi, the Plaintiff collided with the rear of the vehicle and sustained personal injuries, including a back injury and an aggravation injury to the knee.
Unfortunately, the Plaintiff’s injuries significantly restricted his ability to return to his pre-accident employment as the owner-manager of a Brisbane bicycle store and his ability to cycle. The Plaintiff was forced to hire additional staff to assist with the daily operation of the business and to allow him to attempt to recover from his injuries. Ultimately however, the Plaintiff was forced to sell his business and pursue a lighter and more manageable venture – he subsequently established another small business as a bicycle fitter which allowed him more freedom to change posture and work limited hours.
The Defendants, although admitting liability, alleged over the course of the claim that the Plaintiff was contributory negligent – that is, that he contributed to the incident and the injuries he sustained therein. Ultimately however, the Defendants conceded this point in their closing submissions at the trial and the Court escaped making a ruling on this particular point. The Court found in favour of the Plaintiff cyclist and awarded $380,000 by way of damages.
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Hendricks v El-Dik & Insurance Australia Limited T/AS NRMA Insurance (No 4)  ACTSC 160
This decision involved a Plaintiff cyclist who was injured when he was struck by a motor vehicle driven by the First Defendant.
The Plaintiff had been cycling home from his workplace. His route took him along a cycle path which included a section that cut across a number of driveways, including the driveway of the First Defendant motorist.
As the Plaintiff cyclist approached the driveway of the First Defendant, the First Defendant reversed out of his driveway and into the path of the Plaintiff cyclist – causing the Plaintiff cyclist to collide heavily with the passenger side of the vehicle.
Unfortunately, the Plaintiff’s head collided with the vehicle. The Plaintiff sustained significant spinal injuries and was rendered a quadriplegic.
Relevantly, the Plaintiff’s bicycle was fitted with a 500W capacity electric motor.
Although damages were agreed between the parties at $12 million, liability could not be agreed and the matter proceeded to trial.
The Defendants alleged that the Plaintiff cyclist was contributory negligent (that is, that they cyclist’s negligence contributed to the harm he suffered.) The alleged grounds of the Plaintiff’s contributory negligence were as follows:-
The Plaintiff was found contributory negligent in the order of 25% on the basis that he failed to keep a proper lookout. The other grounds were not made out.
Interestingly, the issue of the electric motor that was fixed to the bicycle was examined in some detail.
Unbeknownst to the Plaintiff, the law in the ACT required that the capacity of the electric motor not exceed 200W. The Plaintiff cyclist argued that there was no causal link between the increased capacity of his motor (500W) and the damage suffered by him. In the circumstances, he contended that there were insufficient grounds for a finding of contributory negligence on that basis.
Expert evidence was adduced at the trial showing that the bicycle’s maximum speed with the motor was no greater than 24km/hr, and that the Plaintiff cyclist had been travelling at a speed of between 15 and 20km/hr at the time of the accident. This speed was said to be similar to the speed adopted by other users of the particular bicycle path.
The Court ultimately accepted that the legality of the motor was not relevant, finding no causal link between the increased capacity and the damage suffered by the Plaintiff cyclist.
By Emily Billiau and Gemma Sweeney
Dangerous driving causing death and grievous bodily harm
In R v Osborne the Court considered the culpability of a truck driver who struck and killed one cyclist and caused serious injuries amounting to grievous bodily harm to two other cyclists.
The 65 year old truck driver had no previous convictions and only a minor traffic history. The truck driver was driving with a wide load across a bridge whereupon the cyclists were travelling in a single file. There was traffic coming from the other direction also.
It was the evidence of the truck driver at the trial of the matter that although he thought it was going to be a “tight squeeze,” he “believed there was enough room to get through.” Unfortunately, there was not. The truck struck and killed one cyclist, seriously injured two others, and caused lesser injuries to a fourth cyclist.
The driver of the truck pleaded guilty to dangerous operation of a vehicle causing death and grievous bodily harm. He was sentenced by the Court to three and a half years imprisonment, suspended after 14 months for an operational period of four years. He was also disqualified by the Court from holding or obtaining a driver’s licence for five years.
In sentencing, the Judge was of the view that the driver’s conduct constituted “a very serious error of judgement,” beyond merely “momentary inattention.”
On appeal however, the Court made the point that descriptions such as “momentary inattention: are not the critical issue. The issue for consideration rather was the level of seriousness of the actual driving. The Court also went on to reduce the sentence to three-and-a-half years imprisonment, suspended after only 9 months.
By Emily Billiau | Principal
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Cordin v Nominal Defendant
Cordin v Nominal Defendant is a decision out of the District Court of NSW. The Court awarded the Plaintiff cyclist $350,000 in damages for the injuries he sustained after he fell from his bicycle. It was alleged by the Plaintiff cyclist that as he was applying his brakes in the course of coasting to negotiate his way around a series of potholes, a motor vehicle struck his bicycle from behind. He was thrown forward onto the roadway and sustained a head injury, compression fractures to his thoracic spine, injuries to both hands, wrists and knees.
Despite attempts, the Plaintiff cyclist was unable to identify the motor vehicle involved and ultimately proceeded with a claim against a Nominal Defendant.
The Nominal Defendant fervently defended the claim. The basis of their defence was that the Plaintiff cyclist sustained injuries after striking a pothole in the road. They denied the involvement of a motor vehicle.
The key issue of determination by the Court was whether a motor vehicle was in fact involved.
The Plaintiff led evidence from an expert that the damage occasioned to his bicycle and the injuries he sustained would have been occasioned in the circumstances he alleged occurred (that is, being struck from behind by a motor vehicle.)
The Defendant led expert evidence to the contrary. Their evidence was that the injuries would have resulted from striking a pothole.
The evidence from the Plaintiff’s expert was ultimately preferred and the finding was made by the Court that a motor vehicle was involved. The Court held that the driver of that vehicle had been negligent for failing to keep a proper lookout of the roadway ahead (in order to appropriately deal with foreseeable risks) and awarded the Plaintiff cyclist damages in the order of $350,000.00.