Car v bicycle and the need to pay attention at all times

24 June 2019

His Honour Judge Weber SC of the District Court of NSW found that the Defendant did not breach her duty of care to the Plaintiff cyclist as he collided with the rear of the Defendant’s vehicle.

The Plaintiff was being inattentive and failed to notice the Defendant’s vehicle in front of him as he looked down to check his gears while on the road and riding three metres away from the kerb.

In issue

  • The precise distance that the Plaintiff was riding his bicycle from the kerb
  • Whether the Defendant breached duty of care by failing to the check rear-view mirror.

The background

The Defendant was driving a motor vehicle with her father as a front seat passenger. They were searching for a motel with vacancies to spend the night and were going straight through a roundabout. The Plaintiff was riding his bicycle and was stationary about three to four metres to the left. He was waiting to enter the roundabout as the Defendant negotiated the roundabout at a speed of about 10 to 15 km/h.

Upon exiting the roundabout, the Defendant saw the Plaintiff in her rear view mirror some three to four metres behind her. At the same time, she also saw a motel about 20 metres away which displayed signage that it had vacancy. She slowed down and was indicating to turn left into the driveway when the Plaintiff collided with the rear of the Defendant’s vehicle. His head hit the rear window and also briefly lost consciousness.

It was agreed that prior to the collision, the Plaintiff looked down to check his gears.

The Plaintiff argued that the Defendant breached her duty of care by not looking in her mirrors. He contended that had she looked, the Defendant would have seen him and either continued on and driven past the motel or moved more to the left so as to avoid a collision.

The Defendant argued that the Plaintiff was riding his bicycle almost three metres from the kerb which places him more or less directly behind the vehicle. The Defendant also submitted that there was nothing different that she could have reasonably done if she looked again in her rear view mirror as she was already in the process of slowing down and turning left into the driveway of the motel.

The decision at trial

Judge Weber determined that the Defendant did not breach her duty of care to the Plaintiff. She had already checked her rear-view mirror and saw the plaintiff after exiting the roundabout. The Defendant had her indicator on for 5 sections before commencing to turn. She was entitled to believe that the Plaintiff was aware of her presence due to the lights from her indicators and brake lights as she was in the process of slowing down. The collision was a result of the Plaintiff’s failure to pay attention.

Implications for you

The case demonstrates that cyclists, like any road user, have an obligation to pay attention to their surroundings and keep a proper lookout at all times. It demonstrates the difficulty faced by the Plaintiff to prove breach of duty of care by the Defendant when the Plaintiff is responsible for the rear-end collision. There may be circumstances where a Plaintiff may succeed but this case demonstrates in part the hurdles Plaintiffs need to overcome in proving liability.

Gard v Allianz Australia Insurance Limited [2019] NSWDC 254

Erick Culala

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