By Tina Ibraheem
In Simmons v Rockdale City Council the Defendant (Rockdale City Council) argued that an injured cyclist should not be awarded compensation because the accident was caused by him not keeping a proper look out, and the accident was the result of an ‘obvious risk’ of the dangerous recreational activity of cycling.
In this case, the Plaintiff was riding his bicycle through a car park adjacent to the St George Sailing Club when he struck a boom gate that had been closed across a motor vehicle entrance to the car park.
The Plaintiff sustained serious injuries. His injuries ultimately led to his leg being amputated below the knee.
The Plaintiff initiated a claim against the Rockdale City Council (“Council”) on the basis that they caused his accident by having the closed boom gate there. The area where the accident occurred was a popular route used by cyclists. The Plaintiff himself had been using this route for 25 years several days per week. Every time the Plaintiff had used this route, the boom gate was always opened.
WHO WAS AT FAULT?
In this case, the Court found that Council had breached its duty of care to take reasonable steps to ensure that the boom gate would not be a trap to cyclists. The Court found that the Council should have put a system in place that ensured the boom gate was left opened at a specified times each day, taken steps to increase the visibility of the boom gate and provided a safe alternative access to the street for cyclist. Council should also have been aware of the risk to cyclists as similar accidents had occurred with this boom gate in the past.
The Court found that colliding with an unexpectedly closed boom gate was not an ‘obvious risk’ of cycling and that cycling did not constitute a dangerous recreational activity.
However, the Court found that the Plaintiff’s own failure to react in time and to brake to reduce the force of impact had contributed to the accident to the extent of 20%.
The Plaintiff’s award of damages in the amount of 1.16 million was therefore reduced by 20% to account for his contribution to the accident. Thus the Plaintiff was awarded $928,000.
Council tried to appeal this decision but the Court of Appeal upheld the decision. The Court of Appeal also found that the Plaintiff did not contribute to the accident and ordered that the Council pay the Plaintiff the full 1.16 million. Click here to read the Court of Appeal case.
It is an unfortunate reality of riding a bicycle that if you are involved in an accident with a motor vehicle you will probably end up suffering fairly significant physical and/or emotional injuries.
Accidents happen. It is an unfortunate fact of life. And that is why there is insurance for injury compensation to cover you in the event that you are involved in an accident of this nature.
Luckily, you can bring an insurance claim for injury compensation against the CTP insurer of the vehicle at fault for the injuries you sustain and the losses you suffer as a result.
Through CTP claims you are able to recover money for:
Even if the accident involves an unidentified vehicle/driver, there is still an insurer who responds to the accident compensation claim (the state insurer- the Nominal Defendant).
If your accident was as a result of a poorly maintained road or other factor out of your control, you may still have a claim for injury compensation.
We will help you ensure you recover all of your losses and expenses in a timely and cost-effective way.
We can also help you get your bicycle repair costs recovered or your insurance claim processed more quickly.
There are strict time limits involved in these types of claims so it is important that you act quickly and get advice about your situation.
For a free initial, no obligation, discussion with one of our personal injury lawyers, please contact us.