This is a NSW Supreme Court decision involving a plaintiff who was rendered a complete T10 paraplegic when the bicycle he was riding collided with the Defendant’s stationary car. The decision pertains to liability issues only.  With the new 1m bike clearance rule recently introduced in Queensland, it provides a timely reminder of the need for drivers to be ever vigilant for push-bikes.

The facts

At 1:30pm on 14 January 2012 the plaintiff was riding his bicycle east along Lauderdale Avenue, Fairlight.  The defendant’s vehicle emerged from a driveway that was concealed by parked cars. The left of the driveway that the defendant was emerging from was a designated bus-stop. The plaintiff alleged the defendant entered into the lane in which he was travelling without due care causing him to collide with the vehicle and be thrown from his bike. The defendant’s vehicle was stationary at the time of impact.

The plaintiff alleged that the defendant failed to take adequate care when entering the roadway. The defendant in turn alleged that the plaintiff had failed to make use of a shared pedestrian and cycle way that ran alongside Lauderdale Road and/or failed to keep a proper lookout.

The defendant also alleged liability against a Honda CRV that was parked immediately adjacent the driveway on the basis that the driver should have appreciated that parking in that location would substantially obstruct the view of cars attempting to exit the driveway (notwithstanding that there were no signs prohibiting parking in that location).

The decision

The Defendant’s negligence

The Court held that the defendant was well aware of the restricted line of sight as she exited the driveway and that she could not see cars approaching from the east until she had cleared the parked cars to her right.  It was therefore readily foreseeable that a vehicle travelling east down Lauderdale Avenue at excessive speed or not keeping a proper lookout could collide with her vehicle without the defendant being able to take any evasive action. The defendant’s actions in driving slowly onto the roadway, anticipating and expecting that any unforeseen vehicles would be able to slow down or swerve to avoid her vehicle was not a reasonable response to the foreseeable risk of a collision.

The court applied Warth v Lafsky NSWCA [2014] 94 and the obligations of a driver as set out therein and held that the defendant should have used the available space created by the bus-stop immediately to the left of the driveway to exit the property by turning left into the bus stop and then waiting until the roadway was clear before merging onto to Lauderdale Avenue. The ‘inconvenience’ of having to travel an extra 600m to go around the block in order to turn right was a modest burden that would have given rise to no more than a temporary inconvenience.

The Court concluded that the situation may have been different had the space created by the bus stop not been available, or if the defendant had been a visitor to the property, rather than a resident for the previous three years.

The driver of the Honda CRV was not negligent in parking as there was no sign prohibiting parking at that location.

Plaintiff’s failure to use the bike path

Expert evidence concluded that the shared bike/pedestrian path had a number of ‘pinch points’ where it was significantly narrower than the required width, making it difficult or impossible to avoid pedestrians.  here was also insufficient clearance beside the path to fixed objects, insufficient sight distance through corners, hazardous drop-offs immediately beside the path, hazardous vehicle and pedestrian crossings and an uneven path surface. In those circumstances the Court held that the decision whether to ride on the path was a value judgment and it was not negligent for the plaintiff to use the roadway rather than the shared bike/pedestrian path.

Contributory negligence

The trial judge also accepted witness evidence from two women walking along the shared bicycle pathway that the plaintiff had been looking in that direction leading up to the accident and concluded that he had not been keeping a proper lookout.  The judge concluded that although the plaintiff could have swerved to go around the car and avoid the collision, had he braked 0.5 to 0.3 seconds earlier he would have avoided the collision. Given the narrow margins and the need for an instantaneous decision, the election to brake rather than swerve was a reasonable one. The court apportioned liability 75% to the defendant and 25% to the plaintiff in the circumstances.

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