Legal Liability for Substandard Cycling Infrastructure

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Legal Liability for Substandard Cycling Infrastructure

Postby thecaptn » Sat Apr 20, 2013 4:04 pm

Hi All,

I have a question which some legaly minded member may be able to answer for me please.


Last year I had a stack crossing a timber bridge on our local Walking/Cycling track, the deck was wet and as slippery as ice. I was hospitalised briefly with mild concussion, abrasions etc. I then approached my local council office and filled out an accident report and was advised that I wasn't the first person to crash due to the surface. An officer from the council rang me and said that they would take a look and added that the bridges in question had been posted with "slippery surface" signs. I pointed out to him that the bridge in question didn't actually receive one of these signs and that although the signs were a great initiative they failed to make the decks nonslip. The council had the decks pressure washed which may have helped for a short time but failed to address the problem, they phoned me to say that they'd cleaned them and that there was no money available to modify the surface and so that was that. On holiday in Tassie I came across numerous similar constructions which had an excellent non slip material fitted and these I photographed and gave to my local council office.
As the council officer mentioned nothing has been done to fix this problem and I've heard of another old gentleman who came off recently at the same place and in the same way I did and I dare say there may be more.

If/when someone is seriously injured in this fashion will the council be liable?
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by BNA » Sat Apr 20, 2013 4:24 pm

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Re: Legal Liability for Substandard Cycling Infrastructure

Postby trailgumby » Sat Apr 20, 2013 4:24 pm

If they've been advised of the hazard and done nothing to remediate, they can be.

As a general principle, though, they are not liable for the consequences of a failure to maintain, only for hazards that they've created with structures that didn't previously exist.

In this case, the distinction will turn on the facts. If it is a newish bridge, they should reasonably be aware of the hazard wet timber creates. If they put up signs, that can limit their liability, If they've been removed and didn't know, they have a defence. if they did know and failed to fix in a reasonable time, they can be liable.

If you are looking to sue, you may have a hard time proving they did/should have known. On the other hand, if you can find the old gentleman, you can provide him your evidence and the chances of making the Council feel some pain for their callousness are much better.

Their insurer will cover them but they will be embarrassed and there will be an impact on their premiums. I'd expect a settlement after some argy-bargy negotiation.

If it was a mountain bike track, though, all bets are off. Mountain biking is a risk activity and by riding on such trails you assume a level of risk for foreseeable incidents. Crashing on wet timber is most definitely a foreseeable outcome.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby ColinOldnCranky » Sat Apr 20, 2013 4:39 pm

An alternative approach is to alert the insurers and let them do the running. I have seen favorable responses from them in the past.

Insurers these days are often very proactive, compelling and cajoling reluctant clients and penalizing them with increased premiums if they do not actively attend to risks. Sometimes even walking away and letting them find another insurer IF they can.

In WA most local governments come under a common underwriter specifically set up for them. Offhand, I can't recall it's name. Other states may be different.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby thecaptn » Sun Apr 21, 2013 10:39 am

No I'm not looking to sue I'm looking to make our bike track safe. The old gentleman who went down was one of a group of four retirees on brand new bikes so I assume they were friends getting into riding and finding their feet as it were. This was an avoidable accident as others have been injured in the same way and I hate to think that this expeerience could cause someone starting out to give up riding. This area is largely populated by senior members of the community who can ill afford to hit concrete hard as I did(I slid on the timber but smacked my head on the concrete). The issue to me is not really how can someone sue the council when next time they get hurt but how can the council be forced to act on an obviously hazardous situation that is causing accidents. My train of thought was, if a future incident resulting in injury were to be a legal liability for the council, money to rectify the hazard would likely be found. I for one would be happy to offer my time and knowledge of the issue to assist anyone who gets hurt.

The track in question is relatively new, it is designed as if to cause bicycle accidents. Aswell as the decks being made of hardwood they are preceeded from both ends by 45 deg corners causing riders to begin turning while on the slippery surface. One moment your enjoying a lovely ride and the next moment your laying on the ground bleeding.

Colin I very much like the sound of your approach, this is the one I'll try first.

Thanks guys.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby Howzat » Sun Apr 21, 2013 12:04 pm

thecaptn wrote:No I'm not looking to sue I'm looking to make our bike track safe... This was an avoidable accident

Your complaint itself increases their liability exposure if they subsequently do nothing and someone is hurt.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby trailgumby » Sun Apr 21, 2013 12:37 pm

thecaptn wrote:The track in question is relatively new, it is designed as if to cause bicycle accidents. Aswell as the decks being made of hardwood they are preceeded from both ends by 45 deg corners causing riders to begin turning while on the slippery surface. One moment your enjoying a lovely ride and the next moment your laying on the ground bleeding.

Colin I very much like the sound of your approach, this is the one I'll try first.

Thanks guys.

Fair enough that you're not looking to sue. But just from the facts you've outlined, that is a mind-bogglingly stupid setup for a bicycle path. Forcing people to turn on wet timber ... :roll:

Judging by their response to you to date, it might take a reminder that since you've advised them of the issue, and an older gentleman has since crashed, they are at risk of damages claims of misfeasance. They have negligently created a risk and done nothing to remediate it. Provide details of your initial contact (a copy of the letter if sent) and the name of the gentleman if he is willing. Photos illustrating the situation will help people visualise the problem. Photos of injuries would be even better! Restate your preferred solutoin.

Having a few others write along the same lines helps give you all credibility - a single voice can be easy to dismiss.

Above all, retain the moral high ground, be restrained and professional in your language and stay well clear of any ratbaggery.

Some council staff are great at fixing stuff like this, others (like yours by the sound of things) need an electric cattle prod and an escalation up the chain of command. I'd cc your letter to the General Manager and elected Councillors. Staff hate it when people do that - it's a great way to get them motivated to listen to you properly next time to avoid future repetitions.

It took more than a few repetitions, but staff at our local council now listen to us and actively seek our input before finalising reports around mountain bike trails, and we have a good, professional relationship with them.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby thecaptn » Sun Apr 21, 2013 3:37 pm

Thanks Mr Gumby, sound advice. It will take some reasearch to get my facts straight but that's not a problem. I could even approach council directly at the general meeting.
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Re: Legal Liability for Substandard Cycling Infrastructure

Postby Ross » Sun Apr 21, 2013 7:21 pm

We had a similarish situation here in Canberra a while back where a section of shared path had a white line that was very slippery when wet and over a period of time several cyclists came off. The govt had been notified about it but were procrastinating about doing anything until a mate of mine (who crashed there) threatened legal action and then miraciously within a week the white line was sandblasted/ground off the path.
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