August 2012 - not so good for cyclists in Supreme Court

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August 2012 - not so good for cyclists in Supreme Court

Postby find_bruce » Tue Aug 21, 2012 12:01 am

August 2012 has not been a good month for cyclists in the Supreme Court. There were two common factors in both decided cases, Smith by this tutor Coles v McFarland [2012] NSWSC 945 and Egan v Mangarelli & Ors [2012] NSWSC 867, in that both cyclists suffered serious brain injuries that seriously affected their ability to give evidence of the accident. In each case the judge was not satisfied that the accident was caused by the negligence of the driver & therefore the cyclist recovered no damages.

Smith was a 14 yo boy & could give no evidence as to the circumstances of the collisison. The only witness was found to give an account that was inherently unlikely.

Egan was a bit older at 16 & whilst he suffered brain damage, it was difficult to distinguish from a personality disorder and other defects that existed before the accident.

He was run over by a bus & unsurprisingly his other injuries however make sobering reading, Right above knee amputation, Compound fracture of left ankle, Left femoral fracture, Pelvic fractures: bilateral inferior and superior pubic rami, Left sacral ala fracture, Left scapula fracture, Left clavicle fracture, Left neck of humerus fracture, Right sternoclavicular joint dislocation, Right radius and ulnar fracture, Bilateral rib fractures, Bilateral haemopneumothorax. His economic loss was assessed at over $6m, however as he failed on the question of negligence, he recovered no damages.

Once again the critical issue was how the collission occured. It seems Egan's bike was not damaged by the collision and that somehow Egan became separated from the bike. Even Egan's own counsel accepted that he was 50% responsible for the colission. The court held that the cyclist failed to establish that the bus driver was not keeping a proper lookout and has failed to establish that the bus drver was in breach of the duty which he owed to the cyclist by not making an emergency application of the brakes on the bus.

It also seems that Egan's bike maintenance skills were sub optimal
Police COPS Report wrote:A racing bicycle, however it has a mountain bike tyre fitted to the front which is of smaller diameter than the bicycle was designed for. As such, the front brakes do not make contact with any part of the front wheel.

The rear brakes were tested and found to be functioning correctly. However, the tyre was completely bald.


How much is a front and rear camera worth ?
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by BNA » Tue Aug 21, 2012 12:19 am

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Re: August 2012 - not so good for cyclists in Supreme Court

Postby Mulger bill » Tue Aug 21, 2012 12:19 am

Well that sucks but is hardly surprising. Hope things somehow improve for these lads.
find_bruce wrote:It also seems that Egan's bike maintenance skills were sub optimal
Police COPS Report wrote:A racing bicycle, however it has a mountain bike tyre fitted to the front which is of smaller diameter than the bicycle was designed for. As such, the front brakes do not make contact with any part of the front wheel.

The rear brakes were tested and found to be functioning correctly. However, the tyre was completely bald.

I'm having trouble with this part...
I'd like to know what "racing" bike would have forks capable of taking an MTB wheel and tyre.
The tyres on both my 700c bikes would classify as bald by motor vehicle standards but provide excellent grip. The laws of physics apply differently when it comes to bike tyres.
Does the person who compiled the COPS report have any experience?
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby il padrone » Tue Aug 21, 2012 12:27 am

So if I read it correctly

the bus driver was not keeping a proper lookout and....... .......the bus drver was in breach of the duty which he owed to the cyclist by not making an emergency application of the brakes on the bus.


Yet because the (now intellectually damaged) cyclist could not establish to the court whether he took action to avoid the collision,

the judge was not satisfied that the accident was caused by the negligence of the driver & therefore the cyclist recovered no damages.


No damages at all? Not a skerrick? 100% at fault despite the proven failure of the bus driver????

Smacks of a smart-arse better paid lawyer on the part of that bus-driver and the company's insurers :evil: Scurrilous legal finding.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby find_bruce » Tue Aug 21, 2012 8:04 am

Sorry Il Padrone but that is not what the judge found - he couldn't determine whether or not the bus driver kept a proper lookout & so the cyclist loses.

It's cases like these that are why many cyclists are pushing for vulnerable user legislation - if a bus driver can't establish that he or she did what they could to avoid the collision then they are at least partially at fault.

Mulger Bill I have no more info than what I quoted - I assumed he had fitted a 26" wheel instead of a 700cc one. How or why anyone would do that escapes me.

The rear tyre does not appear to have been an issue in the proceedings
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby il padrone » Tue Aug 21, 2012 10:12 am

OK.

I misread the details of the case.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby find_bruce » Tue Aug 21, 2012 12:54 pm

Easy enough to do Il Padrone - I had to reread it after your post just to make sure I hadn't misunderstood.

All in all it is sad that a couple of kids have suffered serious injuries & that is accepted as the way it is.

I would like to live in a society where we have an obligation to to run over vulnerable people & where, even if the kids were completely to blame, they are looked after.

How we get there is a much tougher question
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby jules21 » Tue Aug 21, 2012 2:11 pm

find_bruce wrote:I would like to live in a society where we have an obligation to to run over vulnerable people & where, even if the kids were completely to blame, they are looked after.

How we get there is a much tougher question

i agree. the current system is designed to protect motorists at almost all costs.

as you said, get cameras.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby wombatK » Tue Aug 21, 2012 2:41 pm

Kids won't have cameras so it won't help kids like these. Someone who couldn't afford a decent bike also will never have camera. A law change would be fairer to reverse burden of proof

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Re: August 2012 - not so good for cyclists in Supreme Court

Postby Oxford » Tue Aug 21, 2012 2:47 pm

wombatK wrote:Kids won't have cameras so it won't help kids like these. Someone who couldn't afford a decent bike also will never have camera. A law change would be fairer to reverse burden of proof

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agreed.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby find_bruce » Tue Aug 21, 2012 2:59 pm

wombatK wrote:Kids won't have cameras so it won't help kids like these. Someone who couldn't afford a decent bike also will never have camera. A law change would be fairer to reverse burden of proof

Yep that was exactly what I was thinking as I read the Egan case - the Westbus bus had lots of cameras, but it seems these were all foccussed internally. I have no doubt that if they had an obligation to vulnerable road users like this kid, I expect they would easily find a way to install a couple more cameras to capture what happended & what the driver could see.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby wombatK » Tue Aug 21, 2012 6:56 pm

In the other thread on strict liability
find_bruce wrote:What I think people who are arguing for "strict liability" are missing is that there is another way to protect vulnerable people without trying to re-write the criminal law. This is found at para 37 of the majority decision by reference to the special duty of care.

Adopting the language of that para, a special duty of care is owed where there is a central element of control by one party, the driver, and special dependence and vulnerability in relation to the other (the pedestrian or cyclist).

The driver is undertaking a dangerous activity. The pedestrian or cyclist is specially vulnerable to danger if reasonable precautions are not taken by the driver in relation to how the car is driven. The pedestrian or cyclist is specially dependent upon the driver ensuring that reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done by the driver.

So why didn't it act to protect the cyclists in this case ? As 16 year olds, you'd have to think there was a much greater vulnerability, and there ought to be greater duty of care obligations on drivers.

Was it simply that the plaintiff failed to make the above case ? Would have a multi-millionaire's or lawyer's son have got a different result ?

I'm not a lawyer, so I have to admit I don't understand the differences between pursuing this duty of car idea, and other alternative like reversing the burden of proof, strict liability and civil liability (which the other thread says is the dutch case).

What am I missing ?
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby find_bruce » Wed Aug 22, 2012 11:51 am

Thanks for the comment WombatK, I have held off replying as I wanted to think about the matters you raised.

The short answer is that the lawyers for the two cyclists did not argue it in either case.

The longer answer is that these two cases show how the law operates currently & my comment on the other thread was how I see the law shoud develop, using existing principles and applying them in a novel way. I re-reading what I wrote, I appreciate that I should have madeit clearer that I was pinching a concept from one aspect of law and applying it to another.

I see two main difficulties if someone tries to run this argument in court (1) convincing the judge that driving is an inherently dangerous activity and (2) the driver is the only one with control in the situation.

To me at least it seems to be easier to apply in the circumstancs we were discussing in the other thread, where the pedestrian was on the footpath & the driver appears to have had a choice between running into a bus or a pedestrian and chose the soft option.

In the Egan case his own lawyer admitted he was 50% responsible for the collission. Google streetview shows you the positionof the bus stop (concrete pad & yellow post) & the path the boy was riding on - but it seems he wasn't hit at that ramp, but rather something like 10 metres down the road & no-one can figure out why.

In the Smith case, I am unsure how the collission occured & what could be done to avoid it. Even if onus of proof was reversed I am not sure the court case would have reached a different result.

Video might have helped on both cases, but like you said it is unlikely that a kid would have a camera.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby ColinOldnCranky » Thu Aug 23, 2012 10:10 pm

Deleted content - put elsewhere
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby ColinOldnCranky » Thu Aug 23, 2012 10:15 pm

jules21 wrote:
find_bruce wrote:I would like to live in a society where we have an obligation to to run over vulnerable people & where, even if the kids were completely to blame, they are looked after.

How we get there is a much tougher question

i agree. the current system is designed to protect motorists at almost all costs.

as you said, get cameras.


I am not sure how you see agreement with Bruce? He never said anything like what you have seen in it. Bruce is not buying into the fault issue at all. He is describing a no-fault needs based system of support.

What we see here, in the absence of such, is that if no case can be demonstrated then a sort of status quo is the outcome and the needs of a victim - at fault or innocent - get's nothing to help him move forward. It is a sort of status quo if nothing can be proven one way ot another ie

  • The kid had no money before.
  • Nothing proven.
  • He has none now.

I don't like it but it is not about protecting motorists. It would be pretty crook if the driver was driving well and then gets hit with a mortage on his home and a lifelong debt and an unenviable reputation to boot.

The system fails all manner of people as it is all about blame. How do you arrive at blame without knowledge?
He is a cyclist and we don't know that he was at fault. ergo the driver is at fault.?????
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby ColinOldnCranky » Thu Aug 23, 2012 10:42 pm

Reverse onus of proof will hold many innocent parties responsible. Hardly any fairer than it is in this case for the riders, just shifting an injustice to another person.

Out of curiosity, were either of these kids able to claim from the third-party insurance scheme. (Will differ of course from state to state.)

The statutory third party insurance, in simple terms, allows an injured person to claim without having to establish blame - though perhaps he may disqualify if it is demonstrated that he was at fault. I imagine that quantum however may not be as generous as a successful tort action.

If I am injured by some driver, for arguments sake, but no-one knows how, then I claim damages not from the driver but from the insurance trust. The driver who is not known to be at fault is not held to be at fault. Sometimes guilty parties get off but then innocent ones do not be shafted unfairly either.

While I can seen the problems with an injured rider being able to bear witness to the events, it could also be an injustice to deem the bus driver to be at fault. He may indeed not have been at fault. (How do you prove a negative? With great difficulty or not at all.)

These cases demonstrates the need to move away from an adversarial blame game to a needs-based no-fault insurance regime. Which, btw, has lots of other benefifts.

The community as a whole shares the burden. I could live with that far easier than with injustices to either party.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby Alien27 » Thu Aug 23, 2012 11:46 pm

Thanks Bruce and Cranky, very interesting.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby il padrone » Fri Aug 24, 2012 12:02 am

ColinOldnCranky wrote:These cases demonstrates the need to move away from an adversarial blame game to a needs-based no-fault insurance regime. Which, btw, has lots of other benefifts.

Victoria has such a no-fault system. Cases like those described are generally not heard in court.... unless the victim chooses to go further with legal action (which is still their right I believe).

However it is my opinion that 'no-fault' leads to a feeling of no responsibility on the part of many drivers. There is no real incentive for drivers to take care of vulnerable road users.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby human909 » Fri Aug 24, 2012 12:37 am

il padrone wrote:
ColinOldnCranky wrote:These cases demonstrates the need to move away from an adversarial blame game to a needs-based no-fault insurance regime. Which, btw, has lots of other benefifts.

Victoria has such a no-fault system. Cases like those described are generally not heard in court.... unless the victim chooses to go further with legal action (which is still their right I believe).

However it is my opinion that 'no-fault' leads to a feeling of no responsibility on the part of many drivers. There is no real incentive for drivers to take care of vulnerable road users.


"But it was just an accident." :roll:
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby ColinOldnCranky » Fri Aug 24, 2012 8:49 am

il padrone wrote:
ColinOldnCranky wrote:These cases demonstrates the need to move away from an adversarial blame game to a needs-based no-fault insurance regime. Which, btw, has lots of other benefifts.

Victoria has such a no-fault system. Cases like those described are generally not heard in court.... unless the victim chooses to go further with legal action (which is still their right I believe).

However it is my opinion that 'no-fault' leads to a feeling of no responsibility on the part of many drivers. There is no real incentive for drivers to take care of vulnerable road users.


Sorry Padre - but that's how we LIKE the world to work, not how it DOES work. By and large we never at any given moment thank that some exceptional catastrophe is gonna happen to us.

But regardless, here we are only talking the need for compensating someone who has horrible injuries and likely horrible prospects for a long time. Outside of that focus the punishment aspects still apply. But punishments ONLY then apply when guilt is there, not when we do not KNOW the circumstances and the fault.

I KNOW without a doubt that I am not careless around riders and that I am on the lookout for those and other hazards. And while that reduces the chance that I will injure or maim someone, by no means does it mean that one day I will not injure someone who steps behind a bus, walks blindly across the freeway in dark clothing, etc etc. If I am then found to be guilty by some rule or convention of the courts or some line in legislation DEEMING me to be guilty then that is a gross injustice to me.

By all means have the authorities investigate me and, if I am found wanting, then to punish me. Just don't arrive at the guilt by DEEMING me guilty by virtue of em being a motorist. Ditto in civil court.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby human909 » Fri Aug 24, 2012 9:33 am

ColinOldnCranky wrote:And while that reduces the chance that I will injure or maim someone, by no means does it mean that one day I will not injure someone who steps behind a bus, walks blindly across the freeway in dark clothing, etc etc. If I am then found to be guilty by some rule or convention of the courts or some line in legislation DEEMING me to be guilty then that is a gross injustice to me.

By all means have the authorities investigate me and, if I am found wanting, then to punish me. Just don't arrive at the guilt by DEEMING me guilty by virtue of em being a motorist. Ditto in civil court.

That is not how strict liability (or whatever you want to call it) works. Australia is actually fairly strict in terms of punishing people for their negligence in various things. Motoring is more the exception rather than the rule to getting away with gross negligence.

**If you run over and kill or maim a worker with your forklift in a workplace both you and your workplace will likely get the book thrown at you. You'll need some fantastic excuse to get off lightly.
**If you run over and kill or maim a citizen with your bus on the public roads, well unless you have some witnesses reporting your gross negligence then you'll likely get off scott free.

When operating most dangerous tools, weapons or machines there is large duty of care expected of the operator. Any injury normally is considered a failure of the duty of care. The exception seems to be motor vehicles where a clear negligence must be proven beyond doubt.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby jules21 » Fri Aug 24, 2012 11:05 am

il padrone wrote:However it is my opinion that 'no-fault' leads to a feeling of no responsibility on the part of many drivers. There is no real incentive for drivers to take care of vulnerable road users.

absolutely. the "no fault" system is a disaster and was poorly conceived. it assumes that drivers already have an incentive to avoid crashing. undoubtedly they had motor vehicle-to-motor vehicle crashes in mind and neglected to consider vulnerable road users.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby high_tea » Fri Aug 24, 2012 11:24 am

human909 wrote:That is not how strict liability (or whatever you want to call it) works. Australia is actually fairly strict in terms of punishing people for their negligence in various things. Motoring is more the exception rather than the rule to getting away with gross negligence.

**If you run over and kill or maim a worker with your forklift in a workplace both you and your workplace will likely get the book thrown at you. You'll need some fantastic excuse to get off lightly.
**If you run over and kill or maim a citizen with your bus on the public roads, well unless you have some witnesses reporting your gross negligence then you'll likely get off scott free.

When operating most dangerous tools, weapons or machines there is large duty of care expected of the operator. Any injury normally is considered a failure of the duty of care. The exception seems to be motor vehicles where a clear negligence must be proven beyond doubt.

You have it the wrong way around. Workplace negligence is the exception. There are exceptions to the general law of negligence, like a non-delegable duty of care, and specific legislation. And the relevant standard of proof this the balance of probabilities, not beyond reasonable doubt. I think the law's operation reflects community attitudes to road users. Trouble is, they suck. The attitudes are what need fixing, though.

I also doubt that changing civil liability in any remotely palatable way will have any worthwhile normative effect. OH&S law demonstrates this neatly.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby human909 » Fri Aug 24, 2012 12:04 pm

high_tea wrote:You have it the wrong way around. Workplace negligence is the exception.

Is it? Sure workplace is probably up there at the opposite extreme however,

What about the duty of care of land owners towards those injured on their property?
What about the duty of care of councils?
What about the duty of care of teachers?
What about the duty of care of sport coaches?
What about the duty of hunters?
What about the event organisers?

It seems to me that the one place I can quite easily get away with negligence when killing or maiming another without significant consequences is when I'm driving a motor vehicle. I honestly struggle to think of any other situation.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby high_tea » Fri Aug 24, 2012 12:34 pm

human909 wrote:
high_tea wrote:You have it the wrong way around. Workplace negligence is the exception.

Is it? Sure workplace is probably up there at the opposite extreme however,

What about the duty of care of land owners towards those injured on their property?
What about the duty of care of councils?
What about the duty of care of teachers?
What about the duty of care of sport coaches?
What about the duty of hunters?
What about the event organisers?

It seems to me that the one place I can quite easily get away with negligence when killing or maiming another without significant consequences is when I'm driving a motor vehicle. I honestly struggle to think of any other situation.


I suspect we're in violent agreement. The problem is no normative effect because, among other things, insurers not defendants pay. The laws with teeth have no value because of lax enforcement due to sucky community values.

I've said it before and I'll say it again: a driving license is the nearest thing to a license to kill that our society acknowledges.

This is a big problem. I don't think the law of negligence created that problem, nor do I think it can really fix it, that's all.
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Re: August 2012 - not so good for cyclists in Supreme Court

Postby human909 » Fri Aug 24, 2012 12:40 pm

high_tea wrote:I suspect we're in violent agreement.

Agreeing is no fun on these forums! :twisted: :mrgreen:

high_tea wrote:I've said it before and I'll say it again: a driving license is the nearest thing to a license to kill that our society acknowledges.

Yes. That is what needs to change and surely the change has to start at the legal level. The attitude isn't the same in Europe.
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