RISKS & THE LAW. October Trang Tran Senior Associate Mariese Bytschkow Senior Law Clerk

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1 RISKS & THE LAW October 2014 Trang Tran Senior Associate Mariese Bytschkow Senior Law Clerk

2 OUR SERVICES Work Related Injuries Road Accident Injuries Medical Negligence Asbestos Diseases Superannuation & Insurance Claims Public Liability & Faulty Products Comcare Will Disputes Financial Advice Disputes Employment & Industrial Law Class Actions Social Justice MONTH YEAR

3 OUR OFFICE 3

4 RISKS & THE LAW PREVENTING PUBLIC LIABILITY LITIGATION FROM BIKE CRASHES

5 OVERVIEW Background - Maurice Blackburn Lawyers Public and Product Liability Litigation Criteria for Public and Product Liability Claim Other Considerations What to do when you are involved in and/or are injured in a bike accident Proving Negligence Preventing Claims Key Themes from Analysis of Bike Crash Cases

6 PUBLIC AND PRODUCT LIABILITY LITIGATION Public liability law covers a wide variety of circumstances in which people may suffer personal injury or death. Potential Claimants include: Bike rider Pedestrian and/or other road or bike path users Potential Respondents include: Bike rider Pedestrian and/or other road or bike path users Government and quasi authorities such as local councils, Vic Roads, Parks Victoria, Department of Environment and Primary Industries (DEPI) etc Private land owners/occupiers Bicycle manufacturers and suppliers

7 CRITERIA FOR BRINGING A CLAIM Meeting the Injury Threshold: Permanent physical impairment of greater than 5%. Psychological injury impairment of greater than 10%. If claimant does not satisfy the relevant threshold = no entitlement to claim for pain and suffering compensation. The assessments are undertaken in accordance with the 4 th edition American Medical Association Guidelines. Public Liability claims are made under the Wrongs Act 1958 (Vic) and other equivalent Acts in other states and territories.

8 CRITERIA FOR BRINGING A CLAIM Proving Negligence against Third Party Claimant s injury was caused by the negligence of another party. Bike path/road accident - proof that Defendant is and was at all material times a road authority within the meaning of the Road Management Act 2004 ("the Act"). The Defendant/Respondent owed a duty to take reasonable care to avoid the risk of foreseeable injury to Claimant.

9 OTHER CONSIDERATIONS Out of Pocket Expenses Entitled to claim reimbursement for out-of-pocket expenses, provided that negligence is established against a third party. Expenses include: Costs of medical, rehabilitation, pharmaceuticals etc. Loss of earnings/income Costs of replacing bike, helmet, accessories etc. Require proof expenses incurred to claim reimbursement

10 OTHER CONSIDERATIONS Statute of Limitations (in Victoria) Public and product liability claims must be commenced within three (3) years from the date of your injury. Persons under 18 years of age or under a disability have six (6) years from the date of the injury to commence a claim.

11 WHAT TO DO WHEN INVOLVED IN OR INJURED IN BIKE ACCIDENT Take good quality photographs of the area where your accident occurred: Photos of signage, bike path and track surface/layout Photos of any obstructions to line of sight (if any) Photos of your injuries and your bike (and helmet) Obtain names of any witnesses and ask for their contact details Record the date and time of accident

12 WHAT TO DO Prepare a statement of events and injuries sustained Keep receipts of your out of pocket expenses (such as medical and like treatment, medications) Product liability claim- locate for original receipts of purchase, and/or servicing receipts, take photographs. Do not repair or discard faulty product Respondent- contact your insurer, Bicycle Network, gather information about the accident

13 PROVING NEGLIGENCE Examples of Negligence Claims against Public Authorities include failure to: Inspect, maintain and/or remove overgrown bushes and trees Warn cyclists of dangers such as changed conditions, pot holes, washed away sections of bike paths Act on reports or complaints about hazards or the state of the bike path Maintain safe bicycle paths (repair paths, eliminate hazards)

14 PREVENTING CLAIMS Public Authorities: Ensure compliance with Austroads Guide to Traffic Engineering Practice (for Bicycles) and Guide to Road Design (for Pedestrian and Cyclist Paths). Take action upon receipt of reports or complaints of hazards Arrange regular inspections and maintenance

15 PREVENTING CLAIMS Bike Riders: Consider adequate insurance coverage Take responsibility for own safety as well as that of others If you see a hazard, report it Suppliers and manufacturers of bicycles and accessories: Ensure compliance with Australian Standards for manufacturing and supply of goods Others: eg- Always ensure your actions do not pose a risk for yourself or others- dog owners should ensure their dog is kept on a lead when out in public

16 KEY THEMES ANALYSIS OF BIKE CRASH CASES 1. Obviousness of Risk 2. Warning of Hazards 3. Prior Knowledge 4. Path Design 5. Path Layout and Maintenance 6. Surface 7. Altered Bikes/Accessories

17 1. OBVIOUSNESS OF RISK Is the hazard obvious? Does the surface of the bike path unexpectedly change? Has loose debris fallen onto path? Is the surface washed out? Are there pot holes or raised or lowered service lids/grates? 17

18 OBVIOUSNESS OF RISK Councils do not have a duty to know and fix every defect in the road Rather, they must operate an adequate system of inspection and maintenance Councils may not be automatically liable if they had no prior knowledge of the pothole you have just ridden your bike into 18

19 2. WARNING OF HAZARDS Signage considerations Distance from hazard? Too close to hazard to allow sufficient time to take evasive action? Too far from hazard? Do signs stand out? Are they visible and convey clear simple message? Are signs suited to task? Detour signs Warning signs Shared path Permanent or temporary signs? 19

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22 WARNING OF HAZARDS Image: Authority knew about damaged culvert on track but failed to:- Adequately warn users of the dangers ahead Undertake repair 22

23 WARNING OF HAZARDS 23

24 WARNING OF HAZARDS 24

25 WARNING OF HAZARDS Signage after incident 25

26 WARNING OF HAZARDS Image: Cyclist collided with orange mesh after going around bend Detour sign was laying on the ground at the time of the accident 26

27 WARNING OF HAZARDS Site of Accident once the works had been completed 27

28 WARNING OF HAZARDS Works were being undertaken to resurface a section bike path Newly laid bitumen/asphalt was oily The track lines and green surface-tack were yet to be applied No barricades were in place to stop cyclists from using path Cyclists not warned about the slippery nature of the path Claimant riding around a slight curve in the path on his bike and due to the oily surface, his bike slipped from under him 28

29 3. PRIOR KNOWLEDGE Council was aware of missing planks on bridge The plastic tape across the entrance:- Too flimsy Easily removed by vandals Bridge should have been repaired or closed off until repairs were completed 29

30 The missing planks in the bridge. Potential fall down 10 metres into river onto rocks. 30

31 PRIOR KNOWLEDGE Cyclist slid across patch of slimy residue Council and adjourning property owners knew of hazard but failed to rectify Post incident sign should also read Cyclist Dismount 31

32 PRIOR KNOWLEDGE Subsequent works undertaken to prevent slimy residue from running across pavement 32

33 4. PATH DESIGN The entrance to the bike path as the cyclist saw it immediately prior to the accident at 6am 33

34 and how the entrance to the bike path looks in daylight 34

35 An expert found that: The facility provided continuity of a designated cycle route into the gardens One white central bollard flanked by dark green ones was an unacceptable hazard because the dark green ones would be difficult to see at night and the single white bollard would be misleading The facility did not comply with Austroads Guide to Traffic Engineering Practice (Bicycles) and Austroads Guide to Road Design (Pedestrian and Cyclist Paths) 35

36 5. PATH LAYOUT AND MAINTENANCE 36

37 PATH LAYOUT AND MAINTENANCE Our client was riding (with his wife) along an elevated Boardwalk. He failed to negotiate a curve in the Boardwalk The front wheel struck the edge of the Boardwalk and he and the bike fell off the Boardwalk. The fall height was some 880mm He struck his head on log lying next to the Boardwalk. The impact shattered his helmet He sustained fatal injuries and died at the scene, despite his wife s desperate attempts to perform CPR 37

38 PATH LAYOUT AND MAINTENANCE The issues raised in this case include:- Whether rangers were trained adequately to assess risks posed by objects in the verge (and failure remove the log) Failure to act on complaints that the Boardwalk became slippery and dangerous to cyclists in certain weather conditions Failure to comply with Austroads Guide to Traffic Engineering Practice to ensure the Boardwalk:- was wider (3 metres wide) had a fence or partial barrier eliminated unnecessary curves 38

39 PATH LAYOUT AND MAINTENANCE Signage after incident inadequate:- too small for cyclists to read Easily removed 39

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41 PATH LAYOUT AND MAINTENANCE 41

42 PATH LAYOUT AND MAINTENANCE Bend in the bike path Overgrown bushes and trees Line of sight in both directions affected Head-on cyclist on cyclist collision 42

43 6. SURFACES Cyclist on a ride along a country road popular with cyclists when his front tyre became wedged in the gaps between wooden planks of a bridge The bridge had longitudinal planks, which are known to trap bike wheels and cause serious injuries to cyclists The Austroads Guides suggest treating such bridges with an asphalt overlay on the outer sections to provide a smooth and safe surface for cyclists 43

44 SURFACES There were signs describing the road as a cycling route More appropriate to place an overlay on the bridge The relevant authority was well aware that the route was regularly used by cyclists 44

45 SURFACES 45

46 SURFACES The council s agents carried out inspections of the relevant area every three months At the inspection five days before the accident the following was noted: A cyclists dismount sign leading to the bridge had been stolen; and there were gaps in the deck of the bridge The person inspecting the area had little or no appreciation of the real risks the hazards identified posed to cyclists Client sustained severe brain injuries leaving him unemployable at 32 years of age 46

47 SURFACES The theft of signs was an issue the Council had previously identified. This being the case, it would have been prudent to use a method of securing signs so they could not be easily removed This was a known cycling route as there were signs warning motorists to be aware of the presence of cyclists The state of the decking of the bridge should have raised serious concerns with the Council 47

48 7. ALTERED BIKES Our client was riding this bike when it suddenly stopped and she was thrown over the handlebars onto the road As a result, she suffered a significant brain injury leaving her wheelchair bound for life and unable to work ever again 48

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