When falling offa bike makes serious money in WA

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When falling offa bike makes serious money in WA

Postby gozone » Sat Jan 11, 2014 1:14 pm

Sad to see yet another case of a "take no responsibility" case on our roads.

A cyclist was knocked off his bike and has been awarded 315,000 for soft tissue injuries. More than many get for being wheel chair bound for the rest of their lives

Menawhile the cyclist is in the market for a new BM and a new C59 Colnago. Good score Jesse!

see:
A cyclist knocked off his bike by the irate driver of a Toyota HiLux has been awarded $315,000 compensation for severe injuries to his arm – and state taxpayers, not the HiLux driver, will have to foot the bill.

In August 2008, Jesse Daniel Lawton, then 22, was riding his pushbike on London Street in Joondana.

In a decision published today, District Court Judge Bruce Goetze accepted that a white HiLux utility, driven by a man with a younger male passenger, hit the rear of Mr Lawton’s bike at the intersection of Baden Street.

Mr Lawton was knocked to the ground and the HiLux was allegedly driven off.

Mr Lawton suffered a severe fracture of his right upper arm.

http://www.oneperth.com.au/2014/01/09/j ... pensation/
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by BNA » Sat Jan 11, 2014 2:18 pm

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Re: When falling off a bike makes serious money in WA

Postby ldrcycles » Sat Jan 11, 2014 2:18 pm

If only cars were registered so they could be identified, oh hang on yea.....



I wonder how the judge arrived at the $315,000 figure?
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Re: When falling offa bike makes serious money in WA

Postby high_tea » Sat Jan 11, 2014 5:09 pm

gozone wrote:Sad to see yet another case of a "take no responsibility" case on our roads.

A cyclist was knocked off his bike and has been awarded 315,000 for soft tissue injuries. More than many get for being wheel chair bound for the rest of their lives

Menawhile the cyclist is in the market for a new BM and a new C59 Colnago. Good score Jesse!

see:
A cyclist knocked off his bike by the irate driver of a Toyota HiLux has been awarded $315,000 compensation for severe injuries to his arm – and state taxpayers, not the HiLux driver, will have to foot the bill.

In August 2008, Jesse Daniel Lawton, then 22, was riding his pushbike on London Street in Joondana.

In a decision published today, District Court Judge Bruce Goetze accepted that a white HiLux utility, driven by a man with a younger male passenger, hit the rear of Mr Lawton’s bike at the intersection of Baden Street.

Mr Lawton was knocked to the ground and the HiLux was allegedly driven off.

Mr Lawton suffered a severe fracture of his right upper arm.

http://www.oneperth.com.au/2014/01/09/j ... pensation/


I find this criticism completely uncalled-for. I see no mention of Colnagos, nor of BMs (whatever they are) in either the newspaper report or the reported decision that I linked to above. The plaintiff got a couple of pretty nasty injuries in the crash - broken elbow and dislocated shoulder. The broken elbow required surgery. I've suffered similar injuries (separately) and they were remarkably unpleasant, even though I suffered no permanent impairment as a result and didn't need surgery. What's more, the plaintiff got a pretty lousy outcome, both with their elbow and their shoulder. I suppose you can quibble about what would be a fair price for this sort of thing, but it's not a minor injury on any view of things.

Reading the judgment, it turns out that $200K or so of the payout relates to loss of income, past or future. That leaves roughly $95K for personal injury (this is neatly summarised at para 167 of the judgment). I don't know how this compares to payouts for being confined to a wheelchair in WA, but it doesn't seem particularly outrageous to me, given the way things went after the crash. Maybe the OP can point to some articles (or better still: reported cases) that support their view that "More than many get for being wheel chair bound for the rest of their lives".

As for the taxpayer having to foot the bill, this strikes me as unlikely. From para 4 of the judgment, it sounds like WA has some kind of nominal defendant scheme funded out of CTP, and the plaintiff's claiming against that. So the motorist might be funding the payout, but not the taxpayer. Me, I don't mind. Better than that they get left twisting in the wind because the wrongdoer can't be found.
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Re: When falling offa bike makes serious money in WA

Postby beanspropulsion » Sat Jan 11, 2014 5:44 pm

Gozone, how do you equate "soft tissue injuries" with a severely fractured arm?

It's quite an innocuous dry medical term but do you know what a "severely fractured arm" is?

And how does the person with the injury "take no responsibility"? He was the victim of a hit and run FFS.

My mate's wife was awarded a similar payout 15 years ago when she was run down on a pedestrian crossing by a car that didn't stop.

It set them up, however as I said to my mate the payment is also for later medical problems that his wife will experience when she is older.

As for the unfortunate guy who got run down:

"A doctor testified that Mr Lawton’s post-traumatic osteoarthritis will probably be progressive and he will suffer significant permanent impairment."

Not exactly a lotto win.
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Re: When falling offa bike makes serious money in WA

Postby gorilla monsoon » Sat Jan 11, 2014 6:03 pm

Go zone, don't criticize until it's happened to you. Getting busted up is not a quick way to earn money and I'd give the money back if I could trade it for the health and fitness I had when I was 26, the age I was when I got smashed around through someone else's negligence.
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Re: When falling offa bike makes serious money in WA

Postby outnabike » Sat Jan 11, 2014 6:25 pm

Hi gozone,
I can't help but be upset by the tone of your post, and even the title belittles what happened to this poor cyclist.
He was hit riding a bike, and didn't just fall off a bike as in a clip fall. Then he was left for dead. He may have been at the mercy of another car driving over him again.

A judge would take into consideration many things and that would include the persons job and how this collision would affect the persons livelihood and future ability to keep himself in his present employment.
He might be a bricklayer and never do that job again.
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Re: When falling offa bike makes serious money in WA

Postby human909 » Sat Jan 11, 2014 6:29 pm

I agreed with the posts above.
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Re: When falling offa bike makes serious money in WA

Postby Mulger bill » Sat Jan 11, 2014 7:26 pm

gozone wrote:stuff

Charming...
...whatever the road rules, self-preservation is the absolute priority for a cyclist when mixing it with motorised traffic.
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Re: When falling offa bike makes serious money in WA

Postby gozone » Sat Jan 11, 2014 9:11 pm

I think in retrospect I made one too many assumptions based on previous discussions, anecdotes and actual experience in this area

as a fellow cyclist I don't like to see anyone injured but was unsuccessfully trying to make a point about the legalities and inequity of the compensation farce we have in countries like the US and Australia

apologies if I offended anyone

it's 43C in Perth today! that's not a bad excuse
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Re: When falling offa bike makes serious money in WA

Postby Big_Red » Sat Jan 11, 2014 11:16 pm

I fail to see the area of permanent impairment payouts as an easy cashcow, nowdays the medical reports required to reach a proper judgement are a very serious thing and lots of hoops need to be jumped through before any compensation is paid. Bear in mind that incapacity payments preclude the person asking for things like a DSP (Disability Support Pension) which is a means tested pension from Centrelink too as any regular payment for incapacity is treated as a dollar for dollar reduction against the pension, while lump sums can trigger a preclusion period where a pension cannot be paid, so the compensation alone must be relied on for the injured persons daily needs. Generally i'd say most people are worse off with injuries and off work under compensation compared to what they would be if injury free and working.

*Disclaimer: I work for an area of DHS that provides medical & financial support for war veterans and their dependants and i'm involved in the income support side of things for clients across Australia getting service pensions who also receive compensation that may be paid under several different Acts. It is a complex area of legislation just to work out if they have any payability for pension. The medical testing for compensation eligibility is several times more complex.
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Re: When falling offa bike makes serious money in WA

Postby ldrcycles » Sun Jan 12, 2014 6:21 am

gozone wrote:Sad to see yet another case of a "take no responsibility" case on our roads.


I had missed the general tone, and thought the above was referring to the fact that someone has seriously injured another person with a car, and then got away scott free.
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Re: When falling offa bike makes serious money in WA

Postby London Boy » Sun Jan 12, 2014 7:50 am

gozone wrote:as a fellow cyclist I don't like to see anyone injured but was unsuccessfully trying to make a point about the legalities and inequity of the compensation farce we have in countries like the US and Australia

No offence, but I could recommend you go down the library and grab a textbook about tort law.

Calculation of compensation is driven by formula, based on assessment of past and future loss of earnings, past and future costs of care, regulation amounts (usually) for particular kinds of pain and disability, all less an amount for the 'vicissitudes of life' (e.g. if your injury means you'll likely die sooner, you'll get less because lifetime costs and lost opportunities will be less).

All of that can be varied by the judge within reasonably tight limits - appelate courts see to that - and the judge might also add amounts, depending on the jurisdiction and the circumstances, for aggravated or exemplary damages (e.g. if you're injured by someone committing a crime rather than just being negligent).

Where it falls down in motoring cases is where statutory insurance schemes prescribe the quantum, and so do not necessarily take into account all the issues relevant to a given case.
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Re: When falling offa bike makes serious money in WA

Postby gozone » Sun Jan 12, 2014 1:54 pm

Good to see people having faith in the courts, lawyers and judges along with honest plaintiffs and the aged old tort law from 100's of years ago.
If you think the compensation laws are fair and that a judge can make accurate assessments for FUTURE earnings and future injury problems then its a perfect world
I have a specialist who works with Commcare cases and he tells some incredible stories and interestingly the insurance companies often payout even with dubious cases
Anyhow my point was the inequity of injury claims which IMHO depends on the barristers involved and ultimately how the judge feels on the day. Is this sustainable?
even the self interest Law Society echoed my point:

In 2002, the Federal, State and Territory Governments commissioned the Negligence Review Panel, Chaired by the Hon Justice David Ipp, to recommend changes to personal injury laws for the primary purpose of reducing the numbers of litigated claims and size of court awarded compensation payments to injured claimants. The review was commissioned in response to the so-called "insurance crisis" of 1999-2002, during which the cost of public liability and professional indemnity insurance rose to unsustainable levels.

There is significant conjecture about the source of the insurance crisis. Whilst the insurance industry blamed the crisis on an "explosion" in litigation and "overly generous" courts...
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Re: When falling offa bike makes serious money in WA

Postby birdbrain » Sun Jan 12, 2014 2:32 pm

high_tea wrote:
As for the taxpayer having to foot the bill, this strikes me as unlikely. From para 4 of the judgment, it sounds like WA has some kind of nominal defendant scheme funded out of CTP, and the plaintiff's claiming against that. So the motorist might be funding the payout, but not the taxpayer. Me, I don't mind. Better than that they get left twisting in the wind because the wrongdoer can't be found.


I suggest that if it were a normal insurance company instead of CTP/TAC or whatever government authority it would be far more difficult to obtain any sort of compensation. They would fight you tooth and nail and put you through so much stress and bs hoping you would capitulate and give up.
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Re: When falling offa bike makes serious money in WA

Postby scotto » Sun Jan 12, 2014 3:17 pm

So someone's whining that a hit and run victim got a payout. Elbow fractures are the worse of just about any joint, and a shoulder dislocation is the start of a life of problems. Find something serious to bitch about, like the quality of some posts on this forum !
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Re: When falling offa bike makes serious money in WA

Postby high_tea » Sun Jan 12, 2014 9:32 pm

gozone wrote:Good to see people having faith in the courts, lawyers and judges along with honest plaintiffs and the aged old tort law from 100's of years ago.
If you think the compensation laws are fair and that a judge can make accurate assessments for FUTURE earnings and future injury problems then its a perfect world
I have a specialist who works with Commcare cases and he tells some incredible stories and interestingly the insurance companies often payout even with dubious cases
Anyhow my point was the inequity of injury claims which IMHO depends on the barristers involved and ultimately how the judge feels on the day. Is this sustainable?


What inequity? There's an implied comparison there, so what's being compared?

I don't think anybody's suggesting that the way this works is perfect. I do, however, think that the way it works is not too bad, and that it's considerably better than it was in, say, the 19th century. We're well shot of the rule in Priestley v Fowler and the unholy trinity, to pick a couple of bad, obnoxious bits of old torts law at random.

I also think that this case is a remarkably weak example of whatever it is you think is wrong with modern torts law.

Oh, and +1 to London Boy's advice: go do some reading about torts law.
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When falling offa bike makes serious money in WA

Postby RonK » Sun Jan 12, 2014 9:56 pm

Perhaps gozone would prefer the New Zealand system, where everyone suffers the same inequity.
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Re: When falling offa bike makes serious money in WA

Postby gozone » Sun Jan 12, 2014 11:20 pm

The judgement raises many questions and many inconsistencies

no damage to the bike despite the claim he was run down from behind-Mmmm steel bike maybe

thanks to high tea for the link:

It is also the case that neither Dr Wahl nor the police noticed any
damage to Mr Lawton's bike. There was no expert evidence to say that if
the Hilux had struck the bike then, there must be or would be likely to be
damage. Plainly, that would not necessarily have to be the case.

And as the claim that an elbow injury is of the worst kind:

This finding is also consistent with Dr Winterton's evidence as both a
bike rider himself and his expertise in paediatric forensic medicine
analysing the cause of children's injuries. Dr Winterton opined that
Mr Lawton's elbow injury is not consistent with a fall from his bike.

Dr Winterton
thought his problem then was more of a psychiatric nature rather than a
physical one and this psychiatric problem was also related to his ADHD.

Mr Lawton is capable of work and has been since 2009. He is
now capable of earning up to $1,000 gross or $825 net per week or
even more based on Professor Mulvey's report. It seems his
difficulty is obtaining work but, there is a paucity of evidence as to
his attempts to find work.

and to cap it off our honest plaintiff:

The gross taxable incomes outlined above exceed gross earned
incomes by reason that, from time to time in each year, Mr Lawton was
also in receipt of Commonwealth benefits. The 2007 tax return suggests
that either the periods of work or the earnings in the answers to
interrogatories for that year might not be correct.

I rest my case boys!
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Re: When falling offa bike makes serious money in WA

Postby high_tea » Mon Jan 13, 2014 9:48 am

Good on you for reading the case.
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Re: When falling offa bike makes serious money in WA

Postby zero » Mon Jan 13, 2014 10:28 am

gozone wrote:The judgement raises many questions and many inconsistencies

no damage to the bike despite the claim he was run down from behind-Mmmm steel bike maybe

thanks to high tea for the link:

It is also the case that neither Dr Wahl nor the police noticed any
damage to Mr Lawton's bike. There was no expert evidence to say that if
the Hilux had struck the bike then, there must be or would be likely to be
damage. Plainly, that would not necessarily have to be the case.

And as the claim that an elbow injury is of the worst kind:

This finding is also consistent with Dr Winterton's evidence as both a
bike rider himself and his expertise in paediatric forensic medicine
analysing the cause of children's injuries. Dr Winterton opined that
Mr Lawton's elbow injury is not consistent with a fall from his bike.

Dr Winterton
thought his problem then was more of a psychiatric nature rather than a
physical one and this psychiatric problem was also related to his ADHD.

Mr Lawton is capable of work and has been since 2009. He is
now capable of earning up to $1,000 gross or $825 net per week or
even more based on Professor Mulvey's report. It seems his
difficulty is obtaining work but, there is a paucity of evidence as to
his attempts to find work.

and to cap it off our honest plaintiff:

The gross taxable incomes outlined above exceed gross earned
incomes by reason that, from time to time in each year, Mr Lawton was
also in receipt of Commonwealth benefits. The 2007 tax return suggests
that either the periods of work or the earnings in the answers to
interrogatories for that year might not be correct.

I rest my case boys!


This is a collision "from behind", from the riders perspective.

http://www.canberratimes.com.au/act-new ... 30j2m.html
You can see why the bicycle need not be significantly damaged as its quite possible to strike the rider first with the corner of the car, especially if swerving at them from behind.

http://www.watoday.com.au/wa-news/man-c ... 30g63.html
This is apparently a driver of matching vehicle type and age to the Jesse collision.

As far as Jesse being gainfully employed, good on him for not couch potatoing over it for the rest of life. As far as the injury payout goes, the medical opinion (after 5 years) is that its a degenerative elbow injury, which even if it isn't impacting his quality of life or employability now, there seems to considerable evidence it will in the future.
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Re: When falling offa bike makes serious money in WA

Postby RonK » Mon Jan 13, 2014 1:34 pm

gozone wrote:I rest my case boys!

No doubt that is what the defendants lawyer said also, but quite plainly the judge did not accept the defendant's expert witness opinion was correct. I don't believe a layman's opinion is more valid than the judgement.
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