Franklin v Blick [2014] ACTSC 273
On 17 June 2009, the Plaintiff was riding his bicycle in a dedicated bicycle lane while the Defendant was riding his bicycle in the same direction as the Plaintiff. They were not quite side by side with the Defendant slightly in front and to the left of the Plaintiff. At some point the bicycle driven by the Defendant hit a piece of wood on the road surface causing the Defendant to veer and collide with the Plaintiff. As a result he fell from his bicycle into the motorcycle into the motor vehicle lane and was struck by a motor vehicle. There was no suggestion that the driver of the vehicle was negligent.
The Plaintiff suffered significant injuries and claimed damages from the Defendant on the basis that his injuries were caused by the negligence of the Defendant. The Defendant did not admit that a collision between himself and the Plaintiff occurred or the injuries suffered by the Plaintiff. He denied any negligence and in the alternative alleged contributory negligence against the Plaintiff on the basis of a failure to keep a proper look out, a failure to take proper care for his own safety and failure to safely ride and manoeuvre his bicycle.
The Court found there was nothing in the evidence of the Plaintiff which would cause him to doubt the evidence and the Court accepted the evidence that he gave. The Court had some misgivings regarding the evidence of the Defendant, purely on the basis that he had no present recollection or limited recollection, of the relevant events.
The Court was satisfied that on the balance of probabilities the Defendant was riding on the left hand side of and slightly to the front of the Plaintiff. Further there was sufficient illumination to the surface of the roadway and the cycleway. The Court was further satisfied that on the balance of probabilities the Defendant’s bicycle struck a piece of wood causing him to lose control. He consequently fell to his right striking the Plaintiff and causing the Plaintiff to fall into the adjacent traffic lane where he was immediately run over by a vehicle. The vehicle had no opportunity to avoid colliding with the Plaintiff. The piece of wood in question was approximately 6 feet in length and about 1 ¼ inches square.
The Court had some misgivings regarding the evidence of the Defendant, purely on the basis that he had no present recollection or limited recollection, of the relevant events.
The Court found that the Defendant would have seen the piece of wood in adequate time to take evasive action had he been keeping a proper lookout. The Court found that “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. The Defendant was aware that the Plaintiff was riding his bicycle adjacent to the Defendant, so that any loss of control of the Defendant’s bicycle presented a risk of injury to the Plaintiff. The need to exercise reasonable care to avoid colliding with objects likely to cause the Defendant to lose control of his bicycle was even more apparent because the cycle way on which the Plaintiff and Defendant were riding was immediately adjacent to a busy road.”
The Court found the Defendant did not exercise reasonable care to observe the wood or to avoid it. Had he exercised reasonable care he would have seen and avoided the wood and thus the Defendant breached his duty of care to the Plaintiff.
As no evidence was adduced to establish that a reasonable cyclist would not have ridden side by side in that particular lane the Defendant’s claim for contributory negligence against the Plaintiff failed.
Damages had been agreed for most of the heads of damage except future earning capacity and superannuation. The Court preferred the evidence of an occupational physician over the orthopaedic surgeon, neurologist and neuro-physiologist with respect to the Plaintiff’s ability to work.
On the occupational physician’s evidence the Court was satisfied that on average the Plaintiff would only be able to work 25 hours a week until his retirement at 67. This was then reduced by 15% for vicissitudes. Damages were therefore awarded in the sum of $1,659,392.75.
