The facts

This case involves a motorbike accident which occurred on 22 October 2009 at the corner of Tom Price Street and Canberra Avenue, Fyshwick in the Australian Capital Territory. There were 3 lanes of stationary traffic on Canberra Avenue facing red lights at the intersection and the appellant motorcyclist was in the bicycle lane approaching the intersection at approximately 40 kilometres per hour. 

The respondent driver was approaching the intersection on Tom Price Avenue. He intended to turn left into Canberra Avenue and was required to “give way” to traffic travelling along Canberra Avenue. 

When the lights on Canberra Avenue turned green the motorcyclist quickly sped up to 60 to 80 kilometres per hour so that he could move to the left in front of the traffic, a manoeuvre which breached traffic regulations. Whilst the driver says he looked to the right twice before proceeding slowly onto Canberra Avenue, he failed to see the motorcyclist. A collision ultimately occurred and the motorcyclist sustained injury. 

The decision at trial

The Magistrates Court dismissed the claim as the motorcyclist failed to establish negligence. Relevantly the primary judge held that:

“A driver is not required to anticipate every possibility on the road or take more than reasonable precautions in light of any particular possibility.”

The driver was found to have driven at an appropriate speed and looked before entering the intersection. The motorcyclist however was held to be travelling too fast for the circumstances and failed to keep a proper lookout and take appropriate precautions for his own safety. Further, it was “outside normal expectations” for a motorcycle to be positioned in a bicycle lane.

The issues on appeal  

The primary decision was appealed on the basis that the primary judge should have found that the driver was negligent for failing to keep a proper lookout. The motorcyclist accepted some guilt for contributory negligence but submitted that the driver should have paid greater attention to the bicycle lane and traffic lights before proceeding. 

The decision on appeal  

Her Honour Chief Justice Murrell found that the driver’s breach of traffic law (ie. failure to give way) did not of itself establish negligence. The reason the driver failed to see the motorcyclist was not established. There was a very low or non-existent risk that a bicycle rider would behave as the motorcyclist did on his motorcycle and accordingly the degree of attention given by the driver to the bicycle lane was not unreasonable. Further, “guesswork” with respect to the traffic lights would have affected the drivers’ concentration on other matters.

Ultimately, the appeal was dismissed.

Her Honour Chief Justice Murrell found that the driver’s breach of traffic law (ie. failure to give way) did not of itself establish negligence. The reason the driver failed to see the motorcyclist was not established. There was a very low or non-existent risk that a bicycle rider would behave as the motorcyclist did on his motorcycle and accordingly the degree of attention given by the driver to the bicycle lane was not unreasonable. Further, “guesswork” with respect to the traffic lights would have affected the drivers’ concentration on other matters.