See Simmons v Rockdale City Council and St George Sailing Club 27/9/13  NSWSC 1431 [65 MVR 141] per Hall J. P, an experienced sports cyclist, was seriously injured when he struck a boom gate (a solid swinging gate) whilst on an early morning ride. The gate was at the exterior of a car park adjacent to D2’s sailing club premises. The gate had been placed there by D1, in exercise of its powers, to minimize hoon driving in the car park. D1 joined D2 on the basis it had failed to move the boom gate back into position after securing it at night. The Trial Judge, in a lengthy decision, found D1 responsible for the accident. D1 was aware this car park was commonly used as a short cut by cyclists and owed a duty to ensure the boom gate was not a hazard. The arrangement between D1 and D2 as to the opening and closing of the gate was vague, relying on a cleaner employed by D2, and His Honour dismissed the claim against D2, citing an absence of duty. There had been occasional other accidents with cyclists hitting the gate and D1 was obliged to find a better system of stowing the gate. In those incidents the riders observed the gate and were able to reduce speed to avoid significant impact. His Honour found that P had contributed, to the extent of 20%, to the accident for failing to take care for his own safety. Section 87, 114 & 115(2) of Roads Act and s43A of CLA considered. No failure to exercise a statutory power found. Appeal dismissed and cross appeal allowed in part 17/4/15 in  NSWCA 102. “The primary judge found that the respondent was keeping a proper lookout, that he did not see the closed gate, that the gate constituted a ‘perceptual trap’ … and that there was no suggestion that he had been travelling at excessive speed. In those circumstances, the respondent failed to see the gate in time despite the fact that he was exercising reasonable care for his own safety. In those circumstances, there was simply no scope for any finding of contributory negligence” @134.
Onus of proof
See Andonopoulos v Rainbow 16/3/15  SADC 35 per Chivell J where P, a cyclist, suffered severe injuries, including amputation of his left leg, when he was struck in the early morning by a semitrailer driven by D. P asserted he was struck by the truck when it travelled too close to him. D maintained he kept a proper course and had not seen P prior to the impact. Both parties produced expert evidence to justify their case. During the trial an expert appearing for P conceded the point of collision was between the mid-section of the truck and the bicycle. The likely cause of the accident was that either P moved into D or vice versa. His Honour noted this was not a scenario advanced by P, who he found to be an unreliable witness, but was one of many scenarios. It was not for D to prove any of the possible scenarios. It was for P to prove a factual scenario upon which a finding of negligence could be based. D was able to show at least two scenarios of equal probability which did not involve negligence on D’s part. Noting that truck drivers bear a heavy duty there was nothing to suggest that D failed to keep a proper lookout. P’s case was dismissed.
See Taouk, Tahana, The Nominal Defendant & HDG Logistics 24/4/15  NSWDC 55 where D’s semi-trailer hit P’s vehicle causing P injury. They both worked for the same employer (HDG Logistics). Mahony SC DCJ found “the major contributing factor to the collision was the presence of spillage on the roadway caused by the negligence of the driver of the unidentified vehicle. That spillage, once it commenced to rain, led to the road surface being dangerously slippery and … the corner in question could not be safely negotiated at a speed greater than 15kph. However, Mr Tahana [D] had been aware since the morning that there was present on the roadway a contaminant. As an experienced driver, he must have been aware that when he was returning on his sixth journey that day, in circumstances where it was raining and the roadway was wet, that that spillage would have spread and that he would have to take additional care in safely negotiating the bend … He saw the contaminant on the roadway a short distance of 20 metres before he came to it, however, that was insufficient time to decrease his speed to a safe speed in the circumstances. Given his knowledge of the presence of the spillage on the roadway, I find that he was 40% liable for the collision and the plaintiff’s injuries” @98. The Nominal D was liable for 60% as the “unidentified vehicle was negligent in driving his vehicle along Cumberland Road and The Crescent with its fuel cap either unattached or poorly attached so as to cause a spillage of diesel fuel onto the roadway” @99.
Pedestrians – Hit from behind
See Serrao v Cornelius 6/2/15  NSWDC 4 per Hatzistergos DCJ where P was seriously injured when he was struck by D’s vehicle whilst walking along a dark road with a friend. Both P and D were intoxicated (P was 0.136 & D 0.150). His Honour found as a fact that D’s headlights were on low beam at the time of collision. The accident occurred a short distance after D had passed another vehicle. In the circumstances there was no breach of duty in failing to switch her headlights to high beam. The impact speed was 45 kph plus or minus 5 kph. His Honour found D was driving partially off the carriageway immediately before the impact and both P and D moved to the right in order to avoid an accident. But “for the conduct of the Defendant in driving the vehicle off the road surface, the collision with the Plaintiff would not have occurred” @158. D was a relatively inexperienced driver and her alcohol consumption led her to travel on the gravel verge. She was negligent. P was affected by alcohol, wearing dark clothes in a dark area and walking in the same direction as traffic. He failed to take care for his own safety, allowing himself only seconds to appreciate the oncoming vehicle. Damages were reduced by 40% for contributory negligence.