Motor Vehicle Compensation: Cases Round-Up

In our latest round-up of motor vehicle compensation cases, we take a look at a number of decisions including Cheng v Geussens where a cyclist riding on the footpath was found to have a higher level of responsibility for an incident with a car.

Cyclist on Footpath Had Higher Level of Responsibility

In Cheng v Geussens, the trial judge could not determine whether a bicycle rider or the driver of a car which collided with him had the green traffic lights in their favour. The NSW Court of Appeal found that both parties had failed to keep a proper lookout. However, one factor favoured the car driver, namely that at the point at which each should have seen the other, the cyclist was on the footpath and could have been expected not to commence to cross in front of a travelling car, whereas the car was travelling at a speed which would have indicated that it was not about to stop. This placed a higher level of responsibility on the bicyclist who was found 67% at fault and the driver 33% at fault.

Damages Reduced for Pedestrian Wearing Dark Clothing at Night

In Marien v Gardiner, a pedestrian was walking along a roadway in the early hours of the morning with his back to the oncoming traffic. He was wearing dark clothing and there was no natural light. There was no assistance from one available street light. The evidence indicated that the driver, who was travelling at about 50 kph (the speed limit), could have seen and prevented the accident if the headlights had been on high beam. The primary judge found for the plaintiff, but reduced his damages by 50%.

Motorcyclist Wins Substantial Damages for Roadworks Debris Accident

In Pillinger v Lismore City Council, the Supreme Court of NSW held that the local council had been negligent in failing to adequately remove and warn of roadbase and aggregate that had been left by the side of a road after roadworks. After a severe rainstorm the material had been washed across the road by water overflowing from a table drain and a passing motorcyclist had lost control of his bike on the loose material and suffered serious injuries. He was awarded substantial damages for his injuries and disabilities.

Failure to Prove Negligence for Property Damage Prevents Personal Injury Claim

In Charafeddine v Morgan, the NSW Court of Appeal confirmed that a woman injured in a car accident, who had originally sued the other car owner only for property damage to her car in the Small Claims Division of the Local Court, and had failed to prove negligence in those proceedings, was later prevented from suing that car owner for her personal injuries. The Court of Appeal found that she could not re-litigate the issue of negligence which she had failed to prove in the Local Court proceedings. The Court of Appeal observed that she could previously have commenced her personal injuries claim in the District Court and sought the property damage claim transferred to the District Court to be heard at the same time. Alternatively, as an interim measure, she could have applied for an adjournment to allow herself time to commence her personal injuries claim.

Negligent Placement of Median Strip Caused Motorbike Collision

In Grant v Roads & Traffic Authority (RTA), the Supreme Court of NSW awarded substantial damages to a motorbike rider who had suffered serious injuries when his motorbike collided with a median strip. The Court found that the RTA had been negligent in placing a median strip, commencing on the eastern side of an intersection, without a sign indicating its non-alignment with the lanes on the western side; the Court found that the median strip posed a not insignificant risk to road users exercising reasonable care for their own safety. The Court stated that, “it was negligent to install the median strip and not to have placed, on or at the nose of the median strip, a sign warning of its location that could be seen by road users travelling up the hill on Epping Road towards the intersection”.

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