Dead cyclist cleared of contributory negligence

The WA Appeal Court has upheld a trial judge’s finding there was no contributory negligence by a cyclist who died after a road smash.

Roger Norman Hill, 63, died on 23 May 2013 from injuries sustained when a bicycle he was riding collided with a BMW sedan driven by Clara Louise Joyce on 12 May 2013. His injuries included a chest injury and a penetration wound to his heart.

The collision occurred at a roundabout at a Cottesloe, Perth, intersection. Just before the crash, Mr Hill was riding his bicycle along Broome Street in a northerly direction, approaching the intersection from the south. He intended to continue along Broome Street after passing through the intersection.

Ms Joyce was driving east along Eric Street, approaching the intersection from the west. She intended to continue along Eric Street after passing through the intersection.

A give way sign at the entrance to the intersection required Ms Joyce to give way to Mr Hill. Also approaching the intersection along Eric Street from the east was a car driven by Graham Maddison, with Margaret Ann Staszewski in the front passenger seat.

Justice Robert Mitchell, who delivered the main appeal judgement, with whom Justices Andrew Beech and John Vaughan generally agreed, said it was common ground that Ms Joyce, after almost stopping at the intersection, did not see Mr Hill’s  bicycle, entered the roundabout, and blocked Mr Hill’s path.

Mr Hill rode into the side of the car just in front of the driver’s door. He went over the bonnet, smashing the windscreen, and rolled off to the side of the car when it stopped.

Mr Hill was taken to Sir Charles Gairdner Hospital (SCGH), where he was treated by medical staff in the emergency department. He also spoke to a police officer who was investigating the crash. Later, Mr Hill was admitted to SCGH’s intensive care unit and then the high dependency unit. He provided a statement to a WA Senior Constable, which he confirmed was correct but did not sign before his death.

Mr Hill’s wife, Gillian Margaret Anderson, brought proceedings under the Fatal Accidents Act 1959 (WA) for the benefit of herself and her and Mr Hill’s dependent children.

Ms Joyce admitted her negligent driving was a cause of Mr Hill’s death, but argued damages should be reduced for contributory negligence.

The trial judge had found Mr Hill was not contributorily negligent and ordered Ms Joyce to pay 100% of the damages to be assessed.

Ms Joyce’s appeal on all eight grounds was dismissed. Her primary argument was that Mr Hill was riding too fast.

Justice Mitchell said Mr Hill was “a recreational cyclist. He was not a serious or expert cyclist. He was wearing shorts and a t-shirt, not lycra. He was wearing joggers, not clip-on cycling shoes. He was riding a pushbike, not a racing bike”.

He found Mr Hill was probably travelling at a speed of about 15 km/h as he entered the roundabout and no more than 20 km/h.

Justice Mitchell said had Ms Joyce been keeping a proper lookout when she approached, or was at, the give way sign on Eric Street, she would have seen the bicycle before she entered into the roundabout.

Ms Joyce “bears the onus of satisfying me, on the balance of probabilities, that from the medical records, essentially [an] entry on 13 May in the ICU admission notes, and from other evidence, principally eye witnesses to the accident, that [Mr Hill] was riding his bike at 50 km/h when he entered the roundabout”.

Justice Mitchell said he was “not satisfied it is more probable than not that the ICU admission notes record a contemporaneous statement by [Mr Hill] that he was cycling at a speed of 50 km/h at the roundabout when the accident occurred.

“I am satisfied Mr Maddison's estimation of the speed ... is the most reliable. It is a more reliable estimation than [Mr Hill’s] own estimation.”

He said Mr Maddison’s estimate of the upper range of 20 km/h was not dissimilar to Mr Hill’s estimate at the lower speed of 25 km/h.

“Without wanting to disparage any 63-year-old male recreational cyclists riding on their pushbike once a week, I think a speed of 15 km/h reflects a speed which could be realistically achieved by such a cyclist. A speed of 20 km/h would certainly be ‘going quite quickly for a pushbike’ [words Mr Hill had used in his police statement].”

Justice Mitchell said the trial judge found Ms Joyce had entered the intersection “unexpectedly” and Mr Hill was unable to avoid the collision.

He said Mr Hill “rode his bike in a safe manner and was entitled to assume it was safe for him to enter the roundabout in the manner in which he did. It was reasonable for him to expect [Ms Joyce] had seen him and would not enter into the roundabout until he travelled through it.

“The speed at which he was riding his bicycle, whatever it was, was not causally relevant to the collision. The sole cause was [Ms Joyce’s] manner of driving, involving her failure to observe [Mr Hill] and to drive into the roundabout after [he] had already entered the roundabout.”

Justice Mitchell said the court recognised “there may be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript”.

“A judge seeing and hearing the witness give evidence is in a much better position than an appellate court to assess the meaning and effect of the evidence, and the degree of confidence with which the witness expressed those views.”

Ms Joyce argued Mr Hill had “failed to pay proper regard” to her vehicle because he  was paying attention to Mr Maddison's vehicle to his right to the exclusion of her car.

But Justice Mitchell said Ms Joyce’s inability to identify “the speed which a reasonable person in [Mr Hill’s] position would have regarded as safe presents a fundamental difficulty for her case.

“Nor does the evidence establish a failure by [Mr Hill] to pay proper regard to [Ms Joyce’s] vehicle.”

Mr Hill’s police statement said he had seen Ms Joyce’s car going very slowly or stopped at the intersection. He reasonably assumed she was giving way to him.

It was therefore reasonable for Mr Hill’s attention to focus on Mr Maddison’s vehicle to his right, to which he was required to give way.

Justices Beech and Vaughan, in a supplementary judgement, said it was relevant that, while Mr Maddison could estimate Mr Hill’s speed “in unequivocal and unqualified terms”, he was unable to estimate Ms Joyce’s speed.

“The finding as to [Mr Hill’s] speed has not been shown to be wrong by reference to incontrovertible facts or uncontested testimony. Nor is it glaringly improbable or contrary to compelling inferences,” Justices Beech and Vaughan found.

Joyce v Anderson [2020] WASCA 48 judgement 8/4/20