"I bought a Jeep" – now do I bear a greater responsibility to smaller vehicles on the roadway? – Hendricks v El Dik (No 4) [2016] ACTSC 160

While there is no equivalent to s 5R of the Civil Liability Act 2002 (NSW) (CLA) in the Australian Capital Territory (ACT), the Supreme Court of the Australian Capital Territory (the Supreme Court) still upholds the principles of self responsibility for cyclists sharing the road with larger vehicles notwithstanding the potential of larger vehicles to cause greater harm.

The plaintiff was riding his electric bicycle home from work along a shared pathway designated for cyclists and pedestrians when the defendant reversed out of his driveway directly into the plaintiff's path. Although the plaintiff cried out the split second prior to the collision, he was unable to brake or swerve and collided into the side of the defendant's vehicle. The impact was of such severity to render him a quadriplegic.

In the absence of any reliable witnesses, his Honour Mossop AsJ predominantly relied upon the parties' expert evidence. The main areas of contention related to the parties' respective speeds leading up to the impact, and whether each party would have been reasonably alert to the possibility of an impending hazard along the shared pathway. Importantly, Mossop AsJ turned his mind to how far each party departed from the relevant standard of care. No consideration was given to the assumption that the Jeep Wrangler driven by the defendant had the greater ability to do harm than the plaintiff riding an electric bicycle.²

A secondary issue the Supreme Court dealt with was the fact that the plaintiff's bicycle was fitted with an electric motor generating a power output greater than that allowed for in the Road Transport (Vehicle Registration) Act 1999 (ACT) and the Australian Road Rules. This begged the question, did the plaintiff fail to take reasonable care for his own safety by riding an electric bicycle that exceeded the permissible capacity under the legislation? More importantly, was there a causal link between the increased capacity of the electric motor within the plaintiff's bicycle and the damage suffered in the accident?

Firstly, in dealing with the plaintiff's illegally powerful electric motor, Mossop AsJ found he failed to take reasonable care for his own safety by riding a bicycle with such a high capacity. The 500w motor would inevitably affect the speed and safety of the bicycle compared to the permissible 200w motor. However, it was up to the defendant to prove the causal link between the illegally powerful motor fitted onto the plaintiff's bicycle and the damage suffered by him. His Honour was not satisfied the defendant proved this point and accordingly, damages were not reduced on this basis.

In weighing up the defendant's culpability, Mossop AsJ was cognisant of the following factors:

• Vegetation on the defendant's property interfered with cyclists' views of his driveway as they rode down the shared pathway. It also interfered with the defendant's own ability to observe cyclists travelling in a north-westerly direction

• The defendant's obligation and duty to give way to bicycles on the shared pathway as he exited his driveway

• The defendant's knowledge that the pathway was regularly used by cyclists, who often rode quickly and were sometimes distracted

• The defendant's knowledge that at that time of day (4:30 pm to 5:30 pm) the bicycle traffic would be heavy with commuters returning home from work.

Taking into account these factors, his Honour determined the defendant's reversing speed of 8.8 km/h was too fast and constituted negligent driving.

His Honour then turned his mind to contributory negligence on the part of the plaintiff. While it has been determined that s 5R of the CLA involves weighing up the respected carelessness of each party in determining culpability rather than assessing the harm caused by the accident,³ there is no equivalent section in any ACT legislation. His Honour nonetheless undertook an assessment of the plaintiff's carelessness and found that he failed to keep a proper lookout. Although his Honour accepted the plaintiff's speed was reasonable, he considered that had the plaintiff been alert and attentive, he would have been able to react to the presence of the defendant's vehicle by applying his brakes.

As both parties were found to be partly at fault, his Honour was required to weigh up their respective culpability. The fact that the defendant chose to reverse at speed while being aware of the factors discussed above resulted in his departure from the standard of care being much greater than the plaintiff's departure from the standard of care. It was considered far more negligent than the plaintiff's momentary lapse in concentration while riding down a shared path. Liability was apportioned 75% against the defendant and 25% against the plaintiff.

The New South Wales Court of Appeal has addressed the issue of contributory negligence on the legislative backdrop of s 5R of the CLA. Three recent decisions have changed the perception that drivers operating heavier vehicles capable of causing greater damage should bear greater responsibility than that of pedestrians.⁴ We consider the same principles of self responsibility apply to cyclists sharing the roadway with heavier vehicles.

While Mossop AsJ acknowledged that there is no equivalent in the ACT, he followed New South Wales' lead by considering each party's behaviour and how far they respectively departed from the standard of care. The fact that the defendant was operating what could be considered a lethal weapon while the plaintiff was riding an electric bicycle was irrelevant.