- Apportionment of liability following collision between motor vehicle and electric cycle.
On 20 January 2012 the plaintiff was riding his electric bicycle along a shared path when he collided with the side of the first defendant’s motor vehicle as he was reversing out of his driveway. As a result of the incident, the plaintiff was rendered a quadriplegic.
It was accepted that the plaintiff’s electric bicycle had a 500W motor, which exceeded the allowable 200W limit for bicycles on shared pathways (pursuant to the Australian Road Rules and the Road Transport (Vehicle Registration) Act 1999 (ACT)).The second defendant, Insurance Australia Limited t/as NRMA Insurance, was the first defendant’s compulsory third party insurer.
The Decision at Trial
The court determined, based on expert evidence, that the first defendant was reversing at a speed of approximately 8.8 km/h, which was considered too fast in circumstances where he knew that his visibility was restricted by vegetation on his property, he was crossing a path which he knew to be used by cyclists on a regular basis and there were reasonably safe alternatives available to him (including the use of an alternative driveway on his property).
In terms of contributory negligence, the court found that the first defendant was unable to establish that had the plaintiff’s bicycle been fitted with a 200W motor, as opposed to a 500W motor, the plaintiff would have been travelling more slowly. Further, the court found that the plaintiff did not attempt to brake at all prior to impact and therefore the different stopping characteristics of a 500W as opposed to 200W electric bicycle did not have any causal consequence.
However, the court did find that it should have been clear to the plaintiff that travelling on the shared path clearly involved a risk that a driver exiting a driveway may fail to give way to users of the shared path and emerge suddenly from behind vegetation. The plaintiff’s failure to apply his brakes at all was evidence of his failure to pay sufficient attention to the potential hazards ahead of him.
Ultimately however, the court found that it was the first defendant’s decision to reverse at the speed that he did that brought about the potentially dangerous situation and that this must be compared to the conduct of the plaintiff which involved a momentary failure to maintain the level of concentration required in order to guard against the possibility that a driver might not meet his obligation to give way to vehicles on the shared path.
Liability was apportioned 75% against the first defendant and 25% against the plaintiff. This resulted in agreed damages of $12 million being reduced to $9 million.
The onus is on the defendant to prove that any illegality or failure to take reasonable care on the part of the plaintiff was causative of the ultimate damage suffered. Illegality itself, in this case the plaintiff’s failure to adhere with the Australian Road Rules by riding an electric bicycle that had a power exceeding 200W on a shared pathway, was not considered determinative of liability on the part of the plaintiff and did not form a basis to reduce the plaintiff’s damages.
Hendricks v El Dik (no 4)  ACTSC 160