Category Archives for Incidents Caused by Cars

Calculating lost income: Why you should call in an expert

An injury often leads to time away from work. Whether you’re an employee, a contractor or a business owner; this usually means economic loss.

Compensation claims can cover for this loss, but figuring out how much to claim is not always easy. Find out why the Judge rejected Gary’s calculation (in Land v Dhaliwal & Anor [2012]), and how you can avoid the same outcome.

Gary's Story

Let me introduce you to Gary Land.

Gary had an interesting work history. Like many people, he’d tried a few things. He’d worked as a fitter and turner, a barman, a go-go dancer and a cleaner. He’d studied, he’d travelled, and he’d owned a doughnut business.

About 4 years prior, he became involved with bicycle shops – as an owner and also a mechanic. One year before the accident, Gary purchased the bike shop he was working at and took over the running of the business.

Gary was looking forward to building his business to support his family.

Gary's Dream

I have finally found something I am passionate about and good at. 
I am working hard to make this business profitable for me and my future family.
My wife and I are expecting our first daughter this year so I am really pulling out all the stops now.

Then the accident happened. Gary was cycling along Airport Drive in Eagle Farm, Brisbane when a taxi driver pulled in front of him. The driver came to an immediate and sudden stop. Gary was flung over the boot of the car. 

Gary suffered an extensive back injury and aggravated an existing knee injury. 

He underwent several surgical procedures to both his back and knee but was left with chronic pain.

After the accident, Gary couldn’t return to his normal life. He couldn’t stand for long periods, struggled to sleep, and suffered memory difficulties.

Gary was frustrated.

He struggled to work and do simple everyday tasks he had done before the accident.

Gary’s frustration started affecting his relationships and work. He could no longer remain patient with customers and he had to employ more staff to cover the work he couldn’t do.

With mounting medical bills and more stress at work, Gary was forced to sell his business. His dream of being able to provide his family with a stable income was now impossible.

He felt like he had let everyone down.

A cyclist shouldn't be left in a financial hole because a careless driver failed to look. 

The government recognises this and provide people like Gary an avenue to access compensation to cover their financial hardship, known as Compulsory Third Party (CTP) scheme.

It also provides an opportunity for cyclists to hold motorists accountable for their negligent acts.

CTP Insurance Scheme

Click the term to reveal it's definition. 

CTP Scheme

Gary brought a personal injury claim to compensate him for his injuries and the effect they had on his life. He brought his claim against the taxi driver and the taxi driver's compulsory third party (CTP) insurer. His claim consisted of the following components:

  • General damages (for pain and suffering)
  • Economic loss (for financial loss he had already suffered, and would suffer in the future)
  • Out-of-pocket expenses (for treatment and medication he had paid for, and the costs of travelling for that treatment)
  • minus
    Future treatment (for the costs of surgery and medication he would need in the future)

Most parts of his claim were simple. But as Gary soon found out, putting a dollar figure on the impact the injuries have had on his life was harder than he thought.

Because of his varied and complex work history, Gary’s assessment for economic loss was a contentious issue at trial.

For Gary's claim to succeed he had to establish how much income he had lost. 

How do you calculate economic loss?

To calculate Gary’s economic loss, the Judge had to calculate:

  • Pre-accident earning capacity: What would Gary have earned if the accident never happened?
  • Post-accident earning capacity: What has Gary earned, and what is he likely to earn, now that the accident has happened?

Gary’s economic loss is the difference between those two amounts.

The tricky part was figuring out what those two amounts were. Gary and the defendants had very different ideas about this.

Gary's Calculation

Gary relied on a chartered accountant to calculate his loss. The accountant estimated Gary’s economic loss to be over $750,000.

The accountant came to this figure by looking at the profit of Gary’s bike shop before the accident, and the profit of Gary’s bike fitting business some years after the accident.

The accountant calculated the difference between those two figures and claimed that that loss would occur every year until Gary’s retirement.

The Judge did not like this approach for a few reasons:

  • Gar​​​​y’s potential earnings were not necessarily equal to the profits of his shop or business;
  • There is no reason why the bike shop profits were a good indicator of Gary’s pre-accident earning capacity;
  • minus
    There is no reason why the business profits were a good indicator of Gary’s post-accident earning capacity.

The Judge rejected Gary’s calculation, saying:

Judge Daubney

“The methodology adopted by [the accountant]…suffers from…difficulties… accordingly, I do not accept the bases advanced by [Gary].”

The Insurer's Calculation

The defendants engaged a forensic accountant to properly analyse Gary’s earning capacities.

The forensic accountant provided an expert report and later gave evidence at trial.

The forensic accountant focused her calculations around the value of Gary’s labour. She figured out what this was by looking at what Gary paid his staff to fill in for him. Or in essence, how much Gary would have earned working for another company as a retail manager and bike mechanic.

The forensic accountant went into great detail and explored many hypothetical scenarios. Importantly, all of these scenarios matched how the Courts typically assess economic loss.

The Judge liked the forensic accountant’s calculations, saying:

Judge Daubney

“…the methodology employed by [the forensic accountant] is consistent…with the relevant principles for the assessment of economic loss.”

Gary lost his argument.

The Judge adopted the forensic accountant’s approach and awarded Gary just under $250,000 for economic loss.

This was $500,000 less than what Gary was claiming.

Gary's case is a timely reminder of the importance of arming yourself with sound, expert evidence. 

Gary was smart enough to know he needed help – but he called in an accountant who wasn’t equipped for the job.

The defendants were smarter and called in an expert in this area of accounting – one who was familiar with how the courts expect economic loss to be calculated. As a result, she came up with a much more compelling argument, provided multiple alternatives to cover her bases and won.

Even if an injured person’s career path is more straight-forward than Gary’s, it’s still difficult to predict what their earning capacity might have been and what it is now. There’s no crystal ball that can show us both scenarios.

To properly calculate economic loss, there needs to be careful analysis of things like:

  • Work history;
  • Education and qualifications;
  • minus
    Career goals (and the likelihood of those goals being met);
  • minus
    Earning potential;
  • minus
    Career trajectory (before and after the accident).

Asking an expert to do this analysis can make a lot of difference. In Gary’s case, it was a $500,000 difference.

Learn from Gary’s mistake. If in doubt, back up your claim with an expert – preferably one that knows the Court system.

Written by Verity Smith | Law Graduate

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.

Horror Accident in Bardon Leaves One Dead

A 61-year-old male rider was killed over the weekend when he collided with a sedan towing a trailer along Jubilee Terrace in Bardon.  Emergency services were called to the crash at about 8:30am on Saturday morning.  The Arana Hills local was pronounced dead at the scene.  Police say the sedan was turning right into Arthur Terrace when it collided with the deceased, who was travelling south along Jubilee Terrace.  The driver of the sedan, a 21-year-old Kippa-Ring man, is assisting police with their inquiries.  With the circumstances of the accident still largely unknown, the Forensic Crash Unit is appealing for witnesses of the incident to come forward.  Brisbane Lawyer, Emily Billiau, appealed for motorists to take more care on our roads, especially as the silly season nears. Emily said:-

            “Every year, we see an increase in compensation claims from accidents on our roads as the Christmas period approaches. This is a timely reminder for all road users to exercise extra care on our roads”.

By Claire McHardy

Case Study – The Motorised Bicycle

Hendricks v El-Dik & Insurance Australia Limited T/AS NRMA Insurance (No 4) [2016] 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:-

  • Operating a registrable but unregistered bicycle powered by a 500W motor on the path;
  • Travelling at an excessive speed;
  • Failing to keep a proper lookout;
  • Failing to have a horn installed on the bicycle; and
  • Failing to deviate from the path rather than continue along the path across the driveway.

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

R v Osborne [2014] QCA 291

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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