Is a cyclist colliding with a closed boom gate an obvious risk thus not compensable?

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.

BACKGROUND

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.