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Broken bike (CC licensed image by garryknight, www.flickr.com)Australian man ordered to pay $1.7m in damages after collision with fellow cyclist
Canberra cyclist, David Blick, has this week been ordered to pay $1.66m in damages plus legal costs following a 2009 cycling incident which resulted in his friend, Michael Franklin, sustaining spinal injuries after being run over by a car. The pair had been cycling alongside each other in a bike lane when Blick hit a wooden tree stake and veered into Franklin, throwing him into the road.
The incident took place at rush hour on a slip lane in the Australian capital city. Court documents describe how Blick was riding alongside and partially ahead of Franklin when he clipped a 1.5 to 2-metre long wooden tree stake and swerved. The two collided and Franklin fell into the road.
Speaking to The Canberra Times, Franklin said:
"I don't have a strong memory of what happened next, other than the fact that a car ran over my back and seemed to spin me around to face the oncoming traffic."
He says Blick tried to stop oncoming traffic while another cyclist rushed to help. Franklin suffered serious fractures to his pelvis and spine, internal bleeding, grazes and bruising.
Franklin spent 28 days in hospital and had pins and screws put into his pelvis and the base of his spine. Blick visited him regularly.
Since then, Franklin has only been able to return to work part-time. The IT consultant is a contractor and says each time he has attempted to work longer hours, the pain has worsened. A physician who appeared during legal proceedings said that his disabilities were "quite significant" and "interfered with all aspects of domestic, social and recreational activities" although a neurologist called by the defence felt confident he could return to full-time work if he were able to use a standing work station.
Franklin initially pursued the driver of the vehicle which ran over him through a third party insurance claim. However, he was advised that this was unlikely to prove successful if it was shown the driver had not been negligent, so he instead sued Blick for negligence.
According to Justice John Burns:
"The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff."
He then concluded:
"Bearing in mind the size of the piece of wood and the lighting in the area, I am satisfied that if the defendant had exercised reasonable care he would have seen and avoided the piece of wood."
Blick was ordered to pay Franklin damages of $1.66 million and pay his legal costs – the figure taking into account Franklin's loss of future earnings.
Roger Geffen, the campaigns and policy director at CTC, says that while cases such as this are highly unusual, it does underline how important it is for cyclists to be covered for the risk of causing injury to others:
“Normal cycling is not an especially high-risk activity, and cases like this are newsworthy exactly because they are extremely rare. However CTC would advise anyone who cycles regularly to make sure they are covered for the risks of causing serious injury to other road users, or damage to other vehicles. This is one of the benefits of joining an organisation like CTC – as well as being able to support our local and national campaigning to promote cycling and cyclists’ safety.”
Alex has written for more cricket publications than the rest of the road.cc team combined. Despite the apparent evidence of this picture, he doesn't especially like cake.
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18 comments
I don't see how it can be the cyclist's fault if there is a tree stake in a cycle lane. The cycle lane is plainly not fit for purpose. As I understand it a motorist is supposed to keep a safe distance from cyclists because of the danger of a cyclist losing control and of their inherent vulnerability. This is a very strange decision but then again the attitude towards cyclists in Australia is very strange.
Events unlikely to have happened with segregated cycling lanes. He would of fallen off, had some grazes and got up. Riding a device which is inherently unstable will at some time fall over/off. I fell off yesterday, my fault mainly, luckily for me it was a quiet rural road, but that scenario could of happened to me on a busy road. It doesn't bear thinking about what horrors could happen!
I saw enough videos of inter-cyclist collisions on this site to conclude that these are more common than I assumed until now. Every time, no cars were involved in these videos, probably showcasing the tip of the collision iceberg.The non-negligent invovlement of cars can lead to the horrendous situation in the Franklin vs Blick case. And its financial consequences. Reason enough for me to renew my 3rd party liability insurance, the cost of which is modest, and covers sports activities. Whilst the introduction in the UK of presumed liability in car cyclist/pedestrian accidents, though unrelated to this event, is an absolute must to make cycling safer: if properly explained and advertised, it will bring about a gradual change of attitude amongst drivers.
And now for some googling up of the actus vs mens rea.
There's a lot of ignorance re the legal concepts in this thread. And lack of reading comprehension as well.
Airzound has it correct and in detail.
Lots of super leaps here. Article doesn't say driver was not negligent, also the cyclist wouldn't have to show negligence under presumed or strict liability and also the direction of travel of the car is not relevant without much more info, I reckon.
Anyway, not important, just chit chat at this distance.
You clearly don't know what your are talking about. Do you actually understand the legal meaning of any of the legal concepts you are spouting? No, I didn't think so.
Strict liability is a criminal law concept meaning you only need to satisfy the actus rea element of an offence to have committed the offence, i.e. there is no mens rea necessary - intention or a guilty mind. A lot of motoring offences such as not wearing a seat belt, speeding are strict liability offences.
Presumed liability is a civil law concept totally different to criminal law and is just a presumption, a rebuttable presumption, that the driver has to rebut. A cyclist does not have to show that the driver was negligent as is the current situation in law in England and Wales. Given the circumstances we are given here about this Australian case which I think is similar to English law, it would be very easy for a driver to rebut a "presumption of liability" that he was negligent as the cyclist that collided with his vehicle was suddenly and unexpectedly forced into the path of his car, having been struck by another cyclist swerving around a fallen tree branch. Liability in civil cases involving injury and damage to property is based on the tort of negligence. Was the driver negligent on the few facts we have here? No.
Which bit of this don't you understand?
Sounds like an insurance fraud to me. Yes I know that the cyclist suffered some serious injuries in the accident, but...
"Blick visited him regularly."
And on one of these visits did the conversation go something like this.
"You've got insurance?"
"Yes"
"Wanna split the payout?"
Of course, this falls apart if the defendant doesn't have 3rd party insurance. Just means the plaintiff is a douche for making his friend, who visited him regularly and probably feels really bad about the causing the accident in the first place, feel even worse by having this huge debt around his neck for the rest of his life. Without ever having the means to pay it off.
I think that borders on libelous!
There is a third possibilty, no? Which is that the litigation wasn't in an antagonistic spirit, but nor was it 'fraud', its just what you have to do when there's an insurance company involved.
I'm not an expert (I've never actually claimed anything on insurance), but is that not how it usually works? The insurance company won't fork out until there's a court case to decide it. I'm sure I've heard of cases where children have sued their parents and such-like, for the same reason.
No more club runs then!
Another fine advert for Presumed Liability - would add 8 pence to car insurance, stop cyclists suing one another to decide who's to pay for the damage done by the guy's one ton car that apparently was too fast or close to avoid this perfectly mundane situation (mundane until the car got involved).
The Australians have presumed liability for some health and safety at work things but not for these fast, heavy private motor vehicles.
No mention of presumed liability from the ctc fellow though. More of a membership sales pitch.
And "presumed liability" as you wish would have failed in this instance as the driver could have rebutted the presumption that he was liable as in this instance it would appear he was NOT negligent. Doh!
What should be able to happen is that any third party should be able to claim against the driver's insurance where there is serious injury to the third party and there is no other suitably insured party to claim from who can meet the costs of damages. The claim would NOT affect the driver's insurance premium and still be recorded as a non fault collision. The would mean that an injured party would not be left without a satisfactory remedy or compensation for injuries not caused by themselves.
I shouldn't imagine that these two guys send each other christmas cards any more. I mean suing your riding partner and taking everything he's got or will ever have. What a bastard thing to do. It was an accident.
If you are a BC member you cannot sue another BC member. It's in their T&Cs. So if these guys had both been BC members any claim might have been tricky ……. maybe BC would have coughed up themselves? Maybe not, not $1.7m.
Totally agree. I feel sorry for him for his injuries but wow - what a douchebag!
According to Australian papers, he fell into the path of an oncoming vehicle.
Wouldn't that make it the worse advert for presumed liability?
I thought the first rule of suing someone is making sure that they are insured? So who pays?
Very few people have $1.7M spare, so suing someone for this sum when they have not got it is a complete waste of time and money? Surely?
Nuts.
"Blick was riding alongside and partially ahead of Franklin" - by the same arguement Franklin chose to ride alongside and partially behind Blick and was unable to clearly see any obstacles ahead, therefore he could not possibly deem it 100% safe to be riding where he was.
Surely ""The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff.""
Could also stand true as "The plaintiff was aware that the defendant was riding his bicycle adjacent to the plaintiff, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff."
Blick to sure the municipal council for the tree stake being a hazard to cyclists?
The judge has already ruled that the piece of wood was big enough and lighting good enough that Blick could have avoided it, so the council are covered.