The measures so taken appear to be designed to promote a number of desirable outcomes, including :-

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1 Liability Aspects of Cycling Claims The riding of a bicycle on a public road is an activity which is attended by not insignificant risk. Cyclists, like pedestrians, constitute a class of vulnerable road users who are exposed to the risk of profound, potentially life threatening injury should they be involved in accidents. Cyclists are required to share the public roads with motor vehicles. This unavoidable necessity in turn occasions the potential for injury. The risk of misadventure cannot be entirely eradicated. Governments throughout Australia have taken appropriate steps both by way of legislation and the promulgation of uniform road rules to minimise, insofar as is possible, the risk of accidents and consequential injury. The measures so taken appear to be designed to promote a number of desirable outcomes, including :- 1. The eradication of unsafe riding practices; 2. The spatial separation of bicycles, motor vehicles and pedestrians; 3. The wearing of safety helmets; 4. The enhancement of visibility of bicycles; 5. The roadworthiness of bicycles. The following table sets out the relevant Australian Road Rules 1999 which regulate the riding of bicycles and the prescribed or proscribed practices :- Australian Road Rule A Rider of a Bicycle must :- 151 Not ride on a road, that is not a multi lane road alongside more than one other rider, unless overtaking or otherwise permitted to do so. 245 Sit astride the seat facing forward with at least one hand on the handlebars.

2 2 246 Not carry more persons on the bicycle than the bicycle is designed to carry. 247 Ride in the bicycle lane unless impracticable to do so. 248 Not ride across a road on a children s crossing, marked foot crossing or pedestrian crossing. 249 Not ride on part of a separated footpath designated for use of pedestrians. 250 If 12 years or older, not ride on a footpath if another law of this jurisdiction prohibits the rider from riding on the footpath, keep to the left unless impracticable to do so and give way to any pedestrian. 251 Ride on the bicycle path, footpath, separated footpath or shared path and keep to the left of any ongoing bicycle rider. 252 Not ride on a length of road or footpath to which a no bicycle sign, or a no bicycle road marking, applies. 253 Not cause a traffic hazard by moving into the path of a driver or pedestrian. 254 Not ride on a bicycle being towed by another vehicle and not hold onto another vehicle while the vehicle is moving. 255 Not ride within two metres of the rear of a moving motor vehicle continuously for more than 200 metres. 256 Wear an approved bicycle helmet securely fitted and fastened on the rider s head unless exempted from doing so and not carry a passenger unless the passenger is wearing an approved bicycle helmet unless exempted from doing so.

3 3 257 Not tow a bicycle trailer with a person in or on the bicycle trailer unless the rider is 16 years or older, the person in or on the bicycle trailer is under 10 years, the trailer can safely carry the person, and the person in or on the bicycle trailer is wearing an approved helmet securely fitted and fastened on the person s head unless exempted from doing so. 258 Not ride a bicycle that does not have one effective brake and a bell, horn or similar warning device, in working order. 259 Not ride at night, or in hazardous weather conditions causing reduced visibility, unless the bicycle, or the rider, displays a flashing or steady white light that is clearly visible for at least 200 metres from the front of the bicycle, a flashing or steady red light that is clearly visible for at least 200 metres from the rear of the bicycle and a red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle s headlight on low beam. 260 Stop for a red bicycle crossing light. 261 Stop for a yellow bicycle crossing light if able to do so safely. 262 Finish crossing an intersection as soon as the rider can safely do so when the bicycle crossing lights change from green to yellow or red. It is also pertinent to note that, pursuant to Australian Road Rule 141, the rider of a bicycle, unlike a motorist, is permitted to overtake a vehicle to the left thereof. Section 99A of the Road Traffic Act 1961 provides that a person who is riding a bicycle on a footpath or other road related area must, where it is necessary to do so for the purpose of averting danger, give warning (by sounding a warning device attached to the cycle or by other means) to pedestrians or other persons using that footpath or other road related area.

4 4 Cyclists are of course required to comply with the Australian Road Rules. Non compliance can lead to the imposition of a penalty. Non compliance with the Australian Road Rules may also be a relevant factor when considering the appropriate apportionment of liability between the parties where the non compliance is of causal relevance to the accident. The Law Reports are replete with cases considering the issue of negligence and the appropriate apportionment of liability between cyclists and other road users. Young Cyclists The Law Reports contain a disproportionate number of cases dealing with the injuries sustained by children whilst riding bicycles. No doubt inexperience, lack of foresight and reckless conduct contribute to the overrepresentation of young people in such accidents. When dealing with particularly young children the Court needs to address the question of the extent to which the child should have his/her damages reduced in consequence of a lack of care. The child is to be judged according to the standard applicable to an ordinary child of the same age, intelligence and experience. 1 In Beasley v Marshall 2 Bright J observed that The descending line measuring reasonable expectation of care rapidly approaches zero as the age diminishes... At an age of under 5 years the required duty of care is close to zero. In Low v Cooley 3 an 8 year old child road a small bike onto the road without looking. The defendant was riding a motorcycle at a speed of 40 kph and came into collision with the plaintiff s bike. The defendant did not note the presence of the plaintiff until approximately 2 metres away. The Court criticised the defendant for failing to consider the possibility of a child entering the road. The Court apportioned liability 75/25 in favour of the child. In Omrcen v Paxman 4 a 10 year old cyclist was attempting to catch up with a friend who was also on a bike. The plaintiff proceeded across the carriageway in pursuit of the friend. The defendant motorist was proceeding past the scene at a speed of 50 1 McHale v Watson (1966) 115 CLR 199. Child Tortfeasor but used as a model in considering contributory negligence. 2 (1977) 17 SASR (1997) 26 MVR (1996) 24 MVR 469.

5 5 60 kph. The defendant struck the plaintiff s bicycle. The Court apportioned liability 85/15 in favour of the cyclist. In Gunning v Fellows 5 a 12 year old cyclist was playing with friends on a driveway. The plaintiff road onto the carriageway and started to peddle more quickly. The plaintiff collided with the front of the defendant s passing vehicle. The Court observed that the defendant would have been able to observe the children playing in the driveway including the plaintiff on his bicycle from a distance of 80 metres. The defendant should have paid more attention to the activities of the group of children. The Court apportioned liability 75/25 in favour of the child cyclist. In Warren v Coombes 6 a 13 year old cyclist attempted to execute a right turn and in the process cut the corner and emerged from behind a hedge into the path of the defendant s passing vehicle which was travelling at a speed of kph. The Court criticised the defendant s speed as being excessive. The Court apportioned liability 50/50. In Horne v State of Queensland 7 a thirteen year old schoolgirl was riding a bicycle with defective brakes. She was on her way to a tennis centre with the permission of her school. The plaintiff s action was against her school in the name of the State. The plaintiff was riding behind one of her school friends going downhill. In consequence of the defective brakes the plaintiff called out to her friend to speed up to prevent her riding into the rear of her friend. Her friend however slowed down and an impact ensued. The plaintiff fell from her bicycle under the wheels of a passing semitrailer. There was no negligence against the semi-trailer driver however the plaintiff succeeded against her school. In Karydis v Harriss 8 a 15 year old cyclist was riding on the footpath. The defendant motorist was emerging from a driveway. The defendant s vision was obscured by the presence of a fence. The defendant sounded the horn before driving onto the footpath. The defendant did not bring the vehicle to a halt at the edge of the footpath. The Court noted that it was unlawful for the plaintiff to be riding on the footpath however 5 (1997) 25 MVR (1979) 142 CLR (1995) 22 MVR (2001) 34 MVR 392.

6 6 this was not relevant to the question of whether the plaintiff had taken appropriate care. The Court noted that the prohibition from riding on a footpath was designed to protect pedestrians. In the circumstances the Court apportioned liability 70/30 in favour of the cyclist. In Howlett v Campion 9 a 16 year old cyclist was riding home from school. The cyclist failed to give a hand signal and moved into the path of a truck which was travelling in the adjacent slip lane to the rear of the cyclist. In the circumstances the Court apportioned liability 80/20 in favour of the cyclist. It is apparent from the above cases that historically young cyclists have recovered a reasonably large proportion of their damages notwithstanding significant failures to take care for their own safety. Factors relevant to breach of duty and the extent of contributory negligence include :- 1. The extent to which the motorist drove defensively; 2. The opportunity to observe the presence of the cyclist; 3. The appropriateness of the motorist s approach speed; 4. The capacity to take evasive action. It is important to bear in mind that in cases similar to those under consideration that the plaintiff bears the burden of establishing negligence against the motorist. Accidents do occur in the absence of negligence on the part of the passing motorist. Such accidents are considered to be inevitable and do not give rise to an action in negligence. In Wensink v Marshall 10 a 6 year old cyclist riding downhill at a speed of 30 kph moved onto the incorrect side of the road and came in to collision with the defendant motorist. The defendant was travelling at a speed of 45 kph. The cyclist struck the left rear tyre of the defendant s vehicle. The Court of Appeal of Western Australia concluded that the defendant motorist was not in breach of the applicable duty of care. 9 (2000) 30 MVR (2010) 56 MVR 20.

7 7 Failure to observe an unlit bicycle In Zhang v Fornito 11 a motorist failed to observe the presence of a cyclist on a roundabout and came into collision with the bicycle. The cyclist did not have an operating light and was wearing dark clothing. The Court concluded that the cyclist had contributed to the occurrence of the accident to the extent of 15%. In Lin v Melia 12 the defendant entered an intersection on a green light at a speed of kph. The prevailing speed limit was 70 kph. The defendant collided with a cyclist who was wearing dark clothing and a black hat. The bicycle was unlit. The cyclist sustained fatal injuries. The cyclist s claim for damages was dismissed on the basis that the motorist was not negligent. Encroachment across the path of an approaching vehicle In Zilm v Botten 13 the defendant motorist struck the rear wheel of the plaintiff s bicycle whilst attempting to overtake. The Court noted that the motorist was under a duty to overtake in as safe a manner as the circumstances permitted. The Court expressed the view that the defendant should have given the bicycle a wide berth. The Court noted that the cyclist was in a vulnerable position. As the defendant was about to overtake the cyclist the latter moved to the right without warning into his path. The defendant attempted to take evasive action but was unsuccessful. The Court concluded that the defendant was in breach of his duty of care in driving at an excessive speed, failing to sound his horn and attempting to overtake the cyclist when too close. In the circumstances the Court apportioned liability between the parties 50/50. In Sexton v Palmer 14 a young athlete training for a triathlon attempted to cross two lanes on a main road in order to access a right turn lane. In doing so the cyclist misjudged the traffic to his rear. In the process of attempting to change lanes the cyclist was struck. The Court apportioned liability 50/ (2009) NSWDC (1999) 30 MVR (1993) 173 LSJS (2005) SADC 20.

8 8 In Santos v C Morris Painting and Decorating 15 a cyclist was proceeding in the lane adjacent to the kerb. Vehicles were parked in the lane in which the cyclist was travelling. The defendant motorist was proceeding in the right hand lane at a slow speed looking for a parking space. The defendant observed a park and moved into the lane adjacent to the kerb. The cyclist was embarrassed by this movement and unable to avoid a collision. The defendant motorist had failed to indicate his intention to move into the left lane. The Court apportioned liability 80/20 in favour of the cyclist. Obscured vision In White v Atkinson 16 a cyclist was proceeding in peak hour traffic. A bus was stationary in the left hand lane. The cyclist elected to pass the bus on the left as permitted by the Australian Road Rules. The bus driver observed the defendant motorist passing on his right in the adjacent lane. The defendant motorist intended executing a left hand turn into a side street in close proximity to the stationary position of the bus. The bus driver invited the motorist to turn left across the front of the bus. As the motorist turned left into the side street the cyclist emerged from the left hand side of the bus and a collision ensued. Neither party had observed the presence of the other. In the circumstances the Court determined that the appropriate apportionment of liability was 50/50. Door Opening In Trentelman v Roberts 17 a cyclist was riding downhill in close proximity to the kerb. The cyclist was approaching a line of stationary traffic which had pulled up in obedience to traffic lights at an intersection. The defendant motorist had brought her vehicle to a halt within the line of traffic but in closer proximity to the kerb. The defendant had done so in order to permit her child to exit from the vehicle in order to go to school. As the cyclist approached the defendant s vehicle the child opened the left hand door. The Court noted that the cyclist was permitted to overtake on the left in accordance with the Australian Road Rules. The Court also observed that the defendant was in control of her child s exit from the vehicle. The Court concluded 15 (2006) 45 MVR (1992) 16 MVR (2004) ACTSC 39.

9 9 that the appropriate apportionment of liability was 50/50. Australian Road Rule 269(3) prohibits creating a hazard by opening a door or alighting from a vehicle. Absence of Negligence In Spanswick v Laguzza 18 a cyclist was riding in close proximity to the kerb of a highway. The defendant was following in the left lane at a speed of kph. When the defendant was some three metres to the rear of the cyclist, the latter slipped on the white line and slid across the lane in which the defendant was travelling. The defendant attempted to brake. A collision ensued. The Court concluded that there was no negligence attaching to the defendant. In Lockhurst v Aaron 19 the defendant motorist pulled out of his driveway and immediately brought his vehicle to a halt in a line of traffic waiting at a set of traffic lights. The plaintiff cyclist was approaching the line of banked up traffic. The cyclist failed to observe the defendant motorist exiting his driveway and pulling up in the line of traffic. After the defendant brought his vehicle to a halt the plaintiff struck the rear corner of the stationary vehicle. The Court concluded that the plaintiff cyclist was completely at fault in relation to this accident. In Martin v Reda 20 a cyclist emerged from in front of a bus and proceeded across a pedestrian crossing in the face of a Don t Walk signal. The cyclist s claim was dismissed. Intoxication If a cyclist contributes to the occurrence of an accident and is intoxicated at the relevant time then the Court will reduce the cyclist s damages by at least 25%. Section 46 of the Civil Liability Act 1936 provides as follows :- (1) If the injured person was intoxicated a the time of the accident, and contributory negligence is alleged by the defendant, contributory negligence will, subject to this section, be presumed. 18 (2002) 35 MVR (1996) 23 MVR (2004) 41 MVR 421.

10 10 (2) The injured person may, however, rebut the presumption by establishing on the balance of probabilities (a) (b) that the intoxication did not contribute to the accident; or that the intoxication was not self induced; or (c) - (i) (ii) the intoxication is wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and the injured person was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs; (3) Unless the presumption of contributory negligence is rebutted, the Court must assess damages on the basis that the damages to which the injured person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage determined by the Court to be appropriate in the circumstances of the case. Non Wearing of a Safety Helmet If a cyclist fails to wear a safety helmet and that failure contributes to the extent of his/her injuries then the Court will reduce his/her damages by 25% for presumed contributory negligence. Insofar as is relevant, Section 49 of the Civil Liability Act provides as follows :- (1) If the injured person was injured in a motor accident, was of or above the age of 16 years at the time of the accident and (a)... (b) One of the following factors contributed to the accident or the extent of the injury :- (i) the injured person was not wearing a safety helmet as required under the Road Traffic Act 1961;... contributory negligence will, subject to this section, be presumed. (2) Subject to the following exception, the presumption is irrebuttable. Exception

11 11... (3) In a case in which contributory negligence is to be presumed under this section, the Court must apply a fixed statutory reduction of 25% in the assessment of damages. The obligation to wear a safety helmet, as indicated above, is contained in Rule 256(1) of the Australian Road Rules Section 162B of the Road Traffic Act 1961 provides that the Governor may by regulation prescribe specifications as to the design, material, strength and construction of safety helmets for use by persons riding... bicycles. The above discussion focuses essentially on the relevant principles applicable to a claim brought on behalf of an injured cyclist. Occasionally cyclists will cause an accident which in turn gives rise to an entitlement to damages on behalf of the injured person. The cyclist is of course not covered by compulsory third party insurance. It is pertinent, however, to note that some home and contents insurance policies extend indemnity to any person living at the residence for any negligent act committed in Australia. It is possible therefore to access coverage on behalf of a cyclist who causes an accident which in turn exposes the cyclist to a claim for damages. It would of course be necessary to obtain a copy of any relevant policy to determine whether or not such coverage is available. Certainly actions of this nature have arisen in the past.

12 12 Biography Peter Day was admitted to practice in In 1985 he spent a year as an Associate to a Supreme Court Judge before joining Mellor Gardner Beamond & Page in 1986 where he was exposed to multiple areas of practice including personal injury litigation, criminal law, planning law, probate and testamentary disputes. In late 1999 Peter joined Finlaysons spending the majority of his time working as In- House Counsel in the CTP Section. In 2006 Peter commenced working as a Barrister at Jeffcott Chambers.

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