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.
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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.
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.
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.
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.
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.
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.
In the case outlined above, Michael’s compensation was paid out by David’s insurer. Although claims are lodged against the rider that caused the accident they are likely covered by public liability insurance either through the other party’s house and contents insurance or through bicycle insurance. This means that although someone might be suing their fellow cyclist, any compensation that’s awarded will be paid by the insurance company and not the cyclist.
Written by Emily Billiau | Principal
Asif Ahmed, a 47 year old lawyer in the UK, had owned a mountain bike for 12 years. He had regularly ridden his bike on the road but had only ridden off road on a few occasions. He had never ridden his mountain bike in rough terrain. He decided to pursue his passion for mountain biking by undertaking a course in off road mountain biking. He found and paid for a course online. The mountain biking course was designed for beginners.
On 25 March 2012 Asif attended the course. As part of the course the instructor, Leon McLean, took him to a section of the bike trail known as BKB or “Barry Knows Best” which consists of a single track that descends through wooded terrain. The group commenced riding on BKB with Leon until they arrived at a steep gully. The instructor provided a bit of training at the top of the descent before asking each of them to ride down the steep gully.
Asif’s first attempt was successful however he was a little shaky and had to steady himself from falling from his bike. He was advised by the instructor to have a second attempt. On this attempt the instructor told Asif to start riding his bike some way back from the edge of the gully so he could gain some extra speed prior to his descent down the gully.
Asif made a second attempt. He aimed to do what the instructor had told him and increased his speed. As he rode over the top of the slope he mistakenly took a different path down the track because he was unable to see over the top of the gully as he approached it. As he descended down the slope his bike slammed into a grassy mound causing him to be catapulted through the air, over the handlebars. He landed heavily on his neck and lay still. As a result of the accident, Asif became a paraplegic.
Asif sued the riding instructor for negligence and/or breach of contract.
This case was heard before Mr Justice Jeremy Baker in the England and Wales High Court. On 10 November 2016 Justice Baker handed down his decision in relation to the issue of who was at fault for the accident.
Asif’s lawyers provided evidence at the trial from William MacKay who had been involved in mountain bike training for over 30 years. Mr MacKay gave evidence to the court that…
Asif did not receive appropriate instruction and training before attempting to ride down the steep gully.
The lawyers for Leon McLean provided evidence at the trial from Richard Martin, who was a technical leader in the field of mountain bike coaching. Mr Martin gave evidence to the court that Asif had received adequate instruction to enable him to ride down the gully safely.
Justice Baker noted that the reason for Asif booking into the course was not to have a thrilling day out but rather to ensure he could pursue his passion for mountain biking in a safe and effective manner. He accepted that Asif was not an experienced mountain bike rider and that prior to this course he would not have known how to safely ride a mountain bike on this type of steep terrain.
The trial judge accepted the evidence of Mr MacKay over Mr Martin and formed the view it was essential for the instructor to make sure he tailored the course to ensure the safety of the most inexperienced riders. He found that the instruction given to Asif by Mr McLean was inadequate.
The trial judge held that...
Asif was not the ‘author of his own misfortune, and therefore liable for the accident’.
He held that Mr McLean was also responsible for Asif’s accident because he did not carry out his instruction with ‘reasonable skill and care’.
The trial judge did find that Asif was partly responsible for his injuries because he did not inform the instructor that he felt the ride down the slope was beyond his capacity. He therefore found that Asif had contributed to his accident. He found that Asif was 20% responsible for his accident and Mr MacLean, the instructor, was 80% responsible for Asif’s accident.
Spinal injuries from cycling accidents in Australia are not uncommon.
According to the national statistics for spinal cord injuries from case registrations to the Australian Spinal Cord Injury Registry approximately 80% of all spinal cord injuries sustained in Australia were caused by traumatic injury such as accidents.
The graph below represents the different causes of spinal injuries recorded in Australia:
Leisure activities which includes cycle related injuries has been documented under other causes and represents 8% of all spinal cord injuries sustained in Australia.
If this situation arose in Queensland it is possible that a claim could be made for negligence against the instructor. However, the injured person would have to overcome the Civil Liability Act 2003 (Qld). This Act contains a specific section that allows a person to escape responsibility for the injuries of another if it can be shown that the injuries were sustained due to an obvious risk resulting from a ‘dangerous recreational activity’. A dangerous recreational activity in Queensland means ‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.
It would most certainly be argued that mountain biking would fall into this category and therefore this section would be difficult to overcome. However, in the situation of Asif, he had paid for and was participating in a course under the guidance of an instructor. In those circumstances, a person in Queensland may be able to successfully bring a claim against the instructor for breach of contract. A claim made for breach of contract means that the Civil Liability Act 2003 would not apply.
In Queensland, if someone pays for and undertakes a particular type of instruction course and suffers injuries during that course, they may be able to successfully sue the instructor for a breach of negligence and/or breach of contract.
However, it will really depend on the circumstances surrounding the accident.
Written by Sharee Yauga | Paralegal
FRANKLIN V BLICK
Franklin v Blick is a decision out of the Supreme Court of the ACT.
Here, the court awarded the Plaintiff cyclist $1.6 million in damages after another cyclist caused him to fall from his bicycle and be run over by a passing motor vehicle. The two cyclists were travelling home from work together in a dedicated bicycle lane on Capital Circle in Canberra. The defendant cyclist was cycling in front of the plaintiff cyclist and failed to see a piece of wood lying on the ground. He struck the piece of wood and then veered into the plaintiff cyclist. As a consequence, the plaintiff cyclist fell from his bicycle onto the road and was subsequently struck by a passing motor vehicle.
The Plaintiff cyclist suffered a multiplicity of significant injuries including a fractured pelvis, fractured right transverse process, internal bleeding, grazes and bruising. The Plaintiff cyclist worked in IT on a contract basis but unfortunately was unable to return to his pre-injury capacity and has to significantly reduce his working hours. He was also unable to return to competition as a triathlete.
The Court found that the Defendant cyclist was liable on the basis that he breached the duty of care he owed to the Plaintiff. The Court found that the defendant cyclist should’ve been keeping a proper lookout and ought to have seen the piece of wood lying on the ground. Ultimately, it was accepted that the Plaintiff’s injuries flowed directly from the Defendant cyclists negligence.