Written by Peter CarterJune 26, 2022
Debris or a hazard left on or falling onto a road – from what is presumed to have been another road vehicle – frequently causes cyclist accidents and injuries to motorcycle riders and their pillion passengers.
Proof that the road debris injury was caused by an object that fell from another vehicle – albeit one that cannot possibly be identified – opens up the chance of compensation from the Nominal Defendant Scheme.
A recent Victorian decision concerning a bicycle rider illustrates the hazards that forensic challenges can face.
Philip Bramich was cycling in a group of eight when his bicycle hit an object – that was later identified as a D-shackle – that became lodged between the wheel and his bike frame.
En route to Broadford some 90 km due North of Melbourne – in ‘perfect’ conditions – they were overtaken by many trucks and many boats being towed in the direction of Lake Eppalock slightly to the West of their route.
As a result of his wheel collecting the object, Bramich was suddenly and violently propelled over his handlebars – ‘as if he had hit a brick wall’ – sustaining serious injuries including a cervical spine fracture.
Debris from vehicles, including bottles and shackles, are – so swore the riders in the group – regularly observed on the roadways they take for weekend outings.
Bramich retained safety engineer Nigel McDonald to provide expert advice as to the origin of the shackle that had caused the December 2019 accident.
The engineer explained that a D-shackle is a load bearing metal link closed with a fastening pin or bolt that is used on heavy vehicles to attach trailer safety chains, to secure loads or to connect components in 4WD recovery system.
The shackle had – in McDonald’s view – fallen from a moving vehicle because it had been “poorly placed” or had “rattled loose” and ultimately come apart.
His claim was rejected by the default CTP insurer on the basis there was insufficient proof the offending object had fallen from a road vehicle.
On the strength of McDonald’s opinion, Bramich filed for a review of that decision in the Victorian Civil and Administrative Tribunal contending that the D-shackle most likely had been dislodged from a vehicle through movement while being driven, causing it to fall onto the roadway.
The Tribunal had to decide what inferences it could or should draw from the sparse but uncontested facts.
It concluded that the D-shackle had come from a vehicle but was not satisfied that the accident was caused by the ‘driving of a motor vehicle’.
Notwithstanding McDonald’s report was the only expert opinion in evidence, VCAT thought it insufficient to allow a conclusion that the shackle’s fall was due to the “driving” of any vehicle from which it had fallen as opposed to – because the engineer had implied both causes were equally likely – it having been “poorly placed” in a way that was unconnected to such activity .
The seriously injured Bramich then appealed to the Supreme Court where Justice Jacinta Forbes was – regrettably for him – of the same view.
“In circumstances where there is no direct evidence of how the D-shackle came to be on the road, and in light of the very limited facts available, it is difficult to say that either possibility is the more probable inference,” she ruled.
Because of the peculiarities of the Victorian CTP system, Bramich didn’t have to address whether or not the shackle came loose from the unidentified vehicle due to negligence.
In Queensland and NSW the unfortunate cyclist would though have needed supportive expert engineering opinion – in addition to that establishing the object had been dislodged as a result of “the driving of the motor vehicle” – that the component was of a type that would require regular inspection such that its dislodgment likely occurred through a “wrongful act or omission”.
Categories: Cyclist accident