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