Category Archives for Incidents Caused By Infrastructure

Veteran cyclist sues local council over dodgy grate

A passionate cyclist who became a quadriplegic after his bicycle wheel got caught in a treacherous drainage grate is suing Mornington Peninsula Shire (Victoria) for negligence, the Mornington Leader reports.

Before the accident, Gerry Russell – a fit and healthy seventy year old – was enjoying his retirement doing the things he loves: skiing, yachting and riding. Previously a physical instructor in the Royal Navy, Mr Russell used to ride up to 400 kilometres a week before he was flung from his bicycle on 15 September 2015. Now, Mr Russell has lost movement in 98 per cent of his body.

Mr Russell is suing the Shire for pain, suffering and loss of income.

Gerry Russell

Mr Gerry Russell (Source: Herald Sun)

 

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[h2_heading]The Facts[/h2_heading]

Mr Russell told a local Mornington newspaper that he was cycling along his usual route, when he carefully moved to the side of the road to allow a car to pass.

“Then my wheel stuck and I flew over the handlebars — I was wearing a helmet so that took the brunt of the force, but I snapped my neck,” he said.

“As soon as I came to, I tried to move and realised straight away that I couldn’t.”

Mr Russell’s wheel caught on an old drain – thousands of which remain in place across the shire.

Dodgy Grate example

Example of the old grates in the area (Source: Herald Sun)

Misaligned drainage grates have caused multiple riders to crash in recent years. According to Mr Russell, at least three other cyclists he knows have been injured in similar accidents. Local cyclists are urging the council to replace the old drains.

 

[h2_heading]The Outcome[/h2_heading] There is no current estimate for the compensation sought by Mr Russell. The case is listed for trial in May 2018.

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 Mr Russell will need to prove that Mornington Peninsula Shire knew that the grates were a risk.

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You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

[h2_heading]The Consequences[/h2_heading]

 If you are injured due to someone else’s negligence, you may be eligible to receive compensation for your injuries. However, you must prove that the local council responsible for the road knew (or should have known) of the problem.

Usually, this requires evidence of previous complaints made to the local authority about the road to prove the Council knew the hazard existed. Evidence that the Council had recently inspected the road, or had not inspected the road in a long time, is also useful.

If you notice an issue with the road, you should contact Council. If another cyclist is injured because of that same issue, your complaint will be very useful evidence for their claim. Take care, and look out for your fellow riders.


Written by Emily Billiau | Principal

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Cyclist who collided with boom gate sues Council for $1.16 million

Champion cyclist Alex Simmons had trained daily on the same stretch of bike route through an open boom gate near the St George Sailing Club.

The cycle route was used frequently by thousands of cyclists and there was an expectation that the boom gate would be open – because it always had been.

Until the morning of 11 April 2007 when someone forgot to open the gate.

Riding about 30km/h, Mr Simmons had no time to brake and smashed into the steel beam of the gate.

The gate was difficult to see and had no signs to alert of an obstruction ahead, meaning the gate essentially came “out of nowhere”.

Tragically, Alex’s injuries were so severe that surgeons were forced to amputate his left leg beneath the knee.

The New South Wales Rockdale City Council had constructed the boom gate to enclose a stretch of road that was adjacent to the sailing club’s car park to stop “hoons doing burnouts”.

Despite the sailing club having an informal agreement with the Council allowing them to lock and unlock the gate at its discretion, the Council had legal authority and control over the boom gate.

To make matters worse, two fellow cyclists had also had a collision with the closed boom gather in similar circumstances. One even alerted the Council to the hazard and was told it was simply a ‘freak accident”.

Mr Simmons brought a claim against the Council, stating they were aware of the hazard and owed Alex and other cyclists a duty of care in ensuring the route was safe.

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The Issues

The Court had to consider the 4 critical issues:-

  1. Whether there was a duty of care owed by the Council to Mr Simmons (that is, the responsibility to ensure the safety or well-being of Mr Simmons);
  1. Whether the Council breached its duty of care to Mr Simmons;
  1. Whether the Council’s breach caused injury to Mr Simmons;
  1. Whether Mr Simmons in any way contributed to the incident and his injuries (for example through his speed or by failing to observe the gate).

The Decision

Mr Simmons argued that the gate presented a “perceptual trap”, such that he wasn’t able to detect that the gate was closed in time to avoid the collision.

He said that the Council was aware that cyclists used Riverside Drive often through the entrance to the car park which was closed by the boom gate.

The Council denied that they were liable. They argued that Mr Simmons had alternative options available to him to exit the car park and that Mr Simmons failed to take care for his own safety.

Justice Peter Hall of the Supreme Court did not agree, finding that Mr Simmons “could not, and did not detect the boom gate… until it was too late to avoid it”.

The Court criticised the Council for relying on a lax agreement with the sailing club for the cleaner to open the boom gate daily across one of the city’s most popular cycle routes.

Justice Hall said that “in the event [that] the cleaner failed to attend on any day (for any reason) to open the boom gate, the system carried a foreseeable and an inherent risk of failure”.

Justice Hall found that the Council knew that the boom gate presented a hazard and that the system to open the boom gate had failed on multiple occasions. Evidence presented at court highlighted the Council were aware of two additional accidents with the closed boom gate that had occurred in the months prior to Alex’s accident.

Furthermore, it was found that the likelihood of an accident occurring causing serious harm was high as the Council had failed to warn cyclists of a potential obstacle ahead.

However, for Mr Simmons to succeed, he had to overcome a number of evidentiary hurdles.

Evidence had to be collected to prove that the Council owed him a duty of care and that they breached this duty of care.

This included:-

  1. Evidence of traffic signs in the area;
  2. Evidence of the Council’s knowledge of the hazard;
  3. Evidence about alternative routes available to Mr Simmons;
  4. Evidence of the Council’s responsibility for the boom gate;
  5. Evidence that he could not have seen or detected the boom gate before it was too late.

Alex was successful.

The Council was held liable and ordered to pay him $1.16 million in compensation

The compensation awarded to Mr Simmons was calculated by reference to the impact the injuries have had on him and the impact they will have on his future earnings and domestic needs.

What does this mean?

The number of people riding today is phenomenal - and the numbers continue to rise…

Unfortunately, the potential for injury to a cyclist is ever present (whether that be from other road users or public/council hazards).

Recent statistics published by the Royal Society for the Prevention of Accidents in the UK show that about 17% of cyclists sustain serious injuries when involved in an accident.

This case sets a great precedent for claims against Councils.

It confirms that Council’s do owe cyclists a duty of care and that if they breach that duty of care they may be liable to compensate the cyclist.

US Cyclist received almost $4 million after following old signs on ‘dilapidated’ road

The Summary

A Rabbi who suffered permanent traumatic brain injuries after his bicycle was struck by a car has received US $3 million (AUD $3.77 million) in compensation.

Shelaim Furst was riding his bike along Victory Boulevard, San Fernando, USA on 25 August 2010 when Antoine Shehata tried to change lanes behind him, the LA Times reports. Rabbi Furst hit Mr Shehata’s vehicle’s windshield and was thrown 27 feet (8 metres) into the street.

The Rabbi sustained a brain injury and memory loss.

In previous years, Victoria Boulevard was a designated bicycle route. By the time of the accident, it was no longer used for those purposes. But the bicycle route signs remained in place while the route was left to fall into disrepair.

It was alleged that the city of Los Angeles had allowed Victory Boulevard to fall into “dilapidated” conditions, and had created a false sense of security for cyclists by leaving bike route signs in sight.

The L.A. City Council decided not to fight the matter in Court, and instead agreed to the US $3 million settlement without any discussion.

Queensland Cyclist Rights vs Californian Cyclist Rights

Before the histrionics start that Australia is becoming a litigious society like America, let us remind you of the differences. For example, parties that lose a case like the one outlined above do not have to pay legal costs in America. In Australia, the losing parties are required to pay these costs and often the costs of the winning party. Typically, this means bogus or weak cases that are unlikely to stand up in a Queensland Court are never pursued.  So for a case to get up in Australia means that a Judge has considered the defence lawyers argument to be weaker than the claimants argument

In this instance, the Rabbi sued the local Council rather than the driver. Although not reported, it is widely speculated that Mr Shehata’s (the negligent driver) insurance policy was not sufficient to cover the compensation required by the Rabbi, or was not insured at all.

The case would be different in Queensland, where drivers are required by law to have CTP insurance. Therefore, if any claims would be against the driver of the at-fault vehicle (or their insurer).

If you are struck by an uninsured vehicle in Queensland, your claim can still proceed against a body called the Nominal Defendant. The Queensland Government created the Nominal Defendant in 1961, so that persons injured by unidentified or uninsured drivers could still seek compensation.  The Nominal Defendant is funded out of the compulsory third party system.

Had the Rabbi fallen because of the ‘dilapidated’ conditions, only then would he have been able to raise a claim against the local council.

What this means for Queensland cyclists

If this case occurred in Queensland, and it was the case that the driver was uninsured, the claim for compensation would likely have proceeded against the Nominal Defendant. However, the Nominal Defendant would have recovered its costs from the driver.

This claims process is very similar to the process for claiming compensation from a third party insurer.

LA City Council
Los Angeles City Council in 2015 (Source: LA Times)

Written by Claire McHardy | Solicitor

Solicitor sues bike instructor after tragic mountain biking accident

The Facts

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.

What the Courts in the UK found

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.

Statistics for spinal cord injuries sustained in Australia

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:

8% of spinal injuries in Australia are cause by leisure activities

Leisure activities which includes cycle related injuries has been documented under other causes and represents 8% of all spinal cord injuries sustained in Australia.

What would happen in Queensland?

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.

What that means for Queensland mountain bike riders

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

Simmons v Rockdale City Council (2013) 65 MVR 141

A Popular Cycling Route and the Boom Gate

The Plaintiff was a competitive cyclist who was out on an early morning training ride. The Plaintiff’s ride took him along Riverside Drive in front of the St George Sailing Club (the Club), where he collided with a closed boom gate and sustained serious injuries. The boom gate had been installed by the Council after issues with ‘hooning’ had arisen in the carpark at night.

The Council had entered into an informal agreement with the Club, allowing them to open and close the gate ‘at their discretion.

The Council’s case was that the collision had occurred as a result of the Plaintiff’s own negligence. The Council pleaded that:

  1. It was an obvious risk of engaging a dangerous recreational activity (cycling); and
  2. That the Plaintiff had failed to keep a proper lookout; and
  3. That the Plaintiff was riding in a direction opposite to marked traffic flow; and
  4. That the Plaintiff failed to ride at an appropriate speed; and
  5. That the Plaintiff ignored ‘no exit’ signs

Evidence lead at the trial of the matter demonstrated that the Council was aware of two earlier incidents occurring when the boom gate had been left closed early in the morning and cyclists had subsequently collided with it. There was also evidence that Riverside Drive had, for many years, served as an extension of a popular cycling route and cyclists would frequently ride through the point where the boom gate was erected.

The Plaintiff was ultimately successful in his claim, although a finding on contributory negligence was made by the Court. The Court found that the Plaintiff cyclist contributed to his injuries Judgement was entered in favour of the Plaintiff in the order of $928,000.00 (after a 20% reduction for contributory negligence) on the basis that the council owed a duty of care to regular users of the Riverside Drive, such as cyclists, and should have taken reasonable steps to ensure that the boom gate did not become a hazard. They failed to take appropriate action by not having a system in place to ensure that the gate would be opened by a specific time each day, did not make the boom gate readily visible and provided no safe alternative access to the street.

By Emily Billiau and Gemma Sweeney