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The 3 Step Powerplay (That Gets the Police to Investigate Cyclist’s Complaints)

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"Fortunately for cyclists you can force a police investigation into the actions of dangerous drivers.  Just follow a simple civil law process."


Emily Billiau - Principal, CycleLaw

We can all agree that a 'near miss' on the roads can be terrifying.  


Imagine the cyclist's level of frustration when they take he video footage to the local police station only to hear one of these excuses:-

  • “There is insufficient evidence to warrant further investigation”;
  • “There is not any public interest in issuing an infringement notice to the driver”;
  • “An investigation isn’t warranted given the expense involved”.

3 points that trigger an investigation

Traffic incidents and crashes may be reported to Qld Police in a number of circumstances. For example:-

  • Pursuant to s. 92(1) of the Transport Operations (Road Use Management) Act and s. 287(3) of the Transport Operations (Road Use Management–Road Rules) Regulation.   This piece of legislation sets out the duties and liabilities of drivers involved in road incidents;


  • Pursuant to s. 34 the Motor Accident Insurance Act.  
  1. a cyclist has an obligation to report an incident (for example a 'near-miss') to police in which 
  2. they have sustained some kind of anxiety or trauma (an injury)  and 
  3. intend to make a civil claim against the offending driver.


The cyclist does not have to report the incident if points 2 and 3 above are not applicable.

But let's say that points 2 and 3 are on the table.  

Then......

Officers receiving reports of traffic incidents involving  psychological trauma are to ensure that the incident is recorded and investigated in accordance with their Operational Procedures Manual.

“It is a fact of law that police are obliged to investigate certain types of road incidents.


You cannot be turned away.


You do not have to accept their reasoning or excuses.


This is the law.


Remember our laws apply to law enforcers too.


let's all work together to make the roads safer.

​​​​Emily Billiau - Principal, CycleLaw

Reporting an incident to a police should not be an intimidating experience.  You should not feel as if you are the offender.  If you are worried you won't be taken seriously run your story past me (by clicking on the orange button below) before you go to the police station.


What steps do cyclists need to take?

So, if you are  traumatised by an incident and intend to make a claim against the driver, you are required by law to ensure a police officer is notified of the incident.

For best results we suggest  giving the investigating officer a completed ‘Report of traffic incident to police’ form. Click here for the form.  

Once you have the form it's a pretty straight forward process:

1. fill out the form

2. take it to the police station

3. speak to the officer in charge of the station who will

4. assign the notice/form to an investigating officer 

the investigating officer should provide you with an occurrence number which you can use to follow up your claim against the driver

Emily Billiau

Principal, Cyclelaw

What steps do the police need to take?

Officers directed to investigate an incident such as a 'near miss' that causes trauma should:

  1. obtain statements from any witnesses to the incident (most likely yourself and the driver). We have a template witness statement that you can use - get it here.
  2. record the details of the incident in their official police notebook and any additional details which may assist the investigation of the incident, such as details of:
  • all persons and vehicles (bikes) directly involved in the incident and any other person who may be able to assist in the subsequent investigation; (such as other cyclists)
  • the damage to the vehicle(s) (including bikes) involved in the incident and including information of the general condition of the vehicle(s) (bikes) and the position of the hand brake and gear lever;
  • other scene evidence such as traffic lights, signs, road markings, skid marks, etc., by sketch plan and video evidence.

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.