Motor Vehicle Injury Claim
Mr Russell was on a cycling holiday with a friend. They were riding north on Colebrook Road and intended to turn right at the junction with Fingerpost Road. They were riding single file and on the extreme left hand side of the road. A driver approached from behind the cyclists at about 95km/hr. The speed limit was 100km/hr so the driver was travelling well within the speed limit. Mr Russell put his Right hand up to signal his intention to turn right, rode along the road margin for a while and then moved toward the centre of the road to start his turn into Fingerpost Road. He was then hit by the car and suffered serious injuries, including several spinal fractures.
The trial judge found that although the driver was driving below the speed limit, drivers should reduce speed when passing cyclists. But the judge also said that the cyclist was negligent for moving into the lane when a car was approaching from the rear. The Judge held that the car was 70% negligent and the cyclist 30%.
The car insurance company was not happy with that result and appealed to a higher court.
The appeal court found that the cyclist and the driver were equally to blame and reduced the cyclist’s claim to 50% of his loss. The appeal court found that while the driver was negligent for not slowing down when passing cyclists, the cyclist had created a dangerous situation by moving into the path of travel of a car. In fact the appeal court said that the cyclist had breached the standard of care required of a reasonable cyclist by pulling into the path of a car. Interestingly the Court used the vulnerability of cyclists, being the uneven weight and speed and force between the cyclist and the car, as an argument against both the cyclist and the driver. While it is important that drivers appreciate the vulnerability of cyclists – and slow down when passing cyclists, cyclists will be judged on whether they took appropriate care for their own safety.
The other interesting point is that although the driver was driving below the speed limit and although the cyclist pulled out in front of the car, the Court nevertheless said that the driver was negligent for not slowing down when overtaking cyclists.
Chu v Russell (2016) Aust Torts Reports ¶82-259; [2016] TASFC 1
