30% contributory negligence finding against injured cyclist was reasonable

22 November 2021

A cyclist who was injured when a motorist collided with her and was awarded more than $800,000 damages with a reduction of 30% on account of her own contributory negligence in riding her bicycle in front of the car. The cyclist was unsuccessful in her appeal of the primary judge’s findings. The court found that a reduction of 30% was within a reasonable range.

In issue

  • The appeal decision considers contributory negligence and damages in relation to damages sustained by a bicycle rider.

The background

On 12 June 2013 at approximately 4.00 pm, Ms Wreford was travelling eastbound on her bicycle toward the intersection of Mill Point Road and Tate Street in South Perth. Ms Wreford was cycling eastbound on the footpath of Mill Point Road on the southern side of Mill Point Road (i.e. against the westbound traffic on the road) and was approaching the exit from Clayton's carpark onto Mill Point Road. Mr Lyle was driving his car in the carpark, having just visited the shop, and was intending to use the Mill Point Road exit to make a right‑hand turn onto Mill Point Road.

Mr Lyle drove his car to the Mill Point Road exit and stopped on the footpath to check for oncoming traffic. At this point, Ms Wreford approached Mr Lyle's car and stopped on its left‑hand (i.e. passenger) side, as the car was blocking her path. Mr Lyle did not see Ms Wreford.

Ms Wreford, wanting to continue cycling eastbound along Mill Point Road, decided to move her bicycle onto the cycle lane in front of Mr Lyle's stationary car and cycle around the front of the car. Mr Lyle had still not seen Ms Wreford by the time she reached the front of his car, and, at that moment, Mr Lyle pulled out onto Mill Point Road to make his right‑hand turn. As a consequence, Ms Wreford was struck and run over by the car. Ms Wreford sustained significant injuries, including broken ribs, a broken shoulder, a broken collarbone and bilateral pneumothoraces (collapsed lungs).

Ms Wreford commenced an action in the District Court against Mr Lyle claiming damages in respect of her personal injuries. Mr Lyle admitted liability for his negligence in failing to avoid the collision. The principal issues for determination at the trial of the action were to determine the quantum of damages payable in respect of Ms Wreford's injuries and whether, and to what extent, those damages ought to be reduced due to contributory negligence on Ms Wreford's part.

The decision at trial

The learned trial judge (Braddock DCJ) assessed damages in the sum of $808,644. Her Honour also concluded that Ms Wreford's conduct in riding her bicycle in front of Mr Lyle's car amounted to contributory negligence. Her Honour apportioned responsibility for the harm caused at 70% responsibility to Mr Lyle and 30% responsibility to Ms Wreford.

Taking into account the sums already advanced prior to trial, judgment was entered for Ms Wreford in the sum of $458,178.80. Ms Wreford had previously rejected an offer of $500,000, and as a result Ms Wreford was ordered to pay costs after the offer was made.

The decision on appeal

Ms Wresford appealed against the learned trial judge's decision in relation to both the assessment of damages and the apportionment of liability. Ms Wresford was not legally represented at the appeal, but she was legally represented at the trial.

The Court of Appeal confirmed that a trial judge's decision on apportionment was a discretionary one, and an appellate court will not interfere with a trial judge's decision on apportionment unless the judge has made the kind of error that would justify an appellate court setting aside a discretionary decision,

The Court of Appeal agreed that Mr Lyle bore the greater responsibility for the accident, particularly having regard to the greater capacity for damage from his car and the significant obligation to keep a proper lookout. Nevertheless, Ms Wreford's actions were a significant departure from the standard of care of a reasonable cyclist. It was a deliberate decision by Ms Wreford to move to the front of Mr Lyle's car, she knew Mr Lyle was intending to pull out, and there was nothing to prevent Mr Lyle from doing so. In that sense, Ms Wreford took a deliberate risk that was 'tantamount to reckless'. The Court of Appeal held that it cannot be concluded that a reduction of damages by 30% was outside the range of reasonable judgment.

Wreford v Lyle [No 3] [2021] WASCA 20

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