Written by Peter CarterJune 28, 2013
The Brisbane City Council has failed in its Civil Liability Act bid to hold out a fitness rider from injury damages after he was thrown from his bike on encountering unfinished bitumen resurfacing on a suburban bayside thoroughfare.
The council argued every conceivable CLA point including – whilst still keeping a straight face – that exercise riding is a “dangerous recreational activity” against which it enjoyed liability immunity under CLA section 19, because such hazards were an “obvious risk” of the sport.
Its opposition was directed against Edward O’Connor whose single file peloton-of-five had been negotiating a gentle curve as it made its way on the southern side of the Sandgate Golf Course towards Shorncliffe Parade.
O’Connor was trailing couple Trevor & Denise Hawgood at about 25kph when all of a sudden his front wheel dropped into a “scarified groove” and he was thrown to the bitumen.
As it turned out the council had commenced resurfacing a 20 m patch of our riders’ recreational bike course 3 or 4 days earlier and had yet to lay the final asphalt layer, leaving a 3 inch or so sudden drop at each end of the works.
Some danger to O’Connor’s compensation ask, was the existence of a “bike lane” of which his group took no advantage because – he said, – it was frequently obstructed by rubbish, glass, weeds and debris.
And although a “rough surface” warning sign had been previously erected, the court concluded it had been removed before the morning of the accident.
As to the “dangerous recreational activity” defence: not so, said the court as road cycling did not in its view, involve a “significant degree of risk of physical harm” as required by the s 18 definition. The council also claimed immunity under CLA s 35 due to its “limited financial resources” it argued could not extend to make the roadway safe for everyone. But the cost of rectifying the defects – better signage and a smooth grade at each end – was held to trivial and thus such defence was defeated.
Likewise, the s 37 defence asserted in that the council claimed no “actual knowledge” of the roadway defect. That contention was implausible given that the council had created the hazard in the first place. For compensation from cycling injuries, go to Cycling Accidents
Neither was O’Connor held to have voluntarily accepted the risk of injury or to have been contributorily negligent, as he had taken reasonable care for his own safety and did not know the full extent of the risk of the particular injury that morning. As for damages, orthopaedist Dr Greg Gillett took the view that O’Connor would have ongoing and intermittent shoulder problems that could be ameliorated with gym work, as well as constant “toothache” shoulder pain.
A 7% impairment of upper extremity function (4% loss of whole person function) was reported. Applying a 25% uplift, general damages were allowed by the court at $18,000. O’Connor’s good fortune on the liability findings did not extend to damages, as his injuries were considered to have no significant deficit regarding income earning capacity.
Past loss of income damages were awarded at only $1300 and for the future, $22,500. In total judgment was recorded against the council at $56,000.