Franklin v Blick [2014] ACTSC 273

The factual circumstances are straightforward. Two cyclists were abreast in a cycle lane. The left hand cyclist hit a large piece of wood causing the cyclist to collide with the right hand cyclist, forcing him into the path of a car and suffering significant injuries.

Below is some commentary by Graeme Hancock | Solicitor JamesKLegal in response to “Lawyers Spoiled Social Cycling for Me”. In this context it useful to reflect that it is a problem that faces many sports and other non-for-profit associations.

Its plainly ridiculous isn’t it? All the instructions and sermons in the world don’t stop accidents, and that’s what we are talking about:- accidental occurrences.

I think most of the overlay of structure and warnings and strictures we’ve seen in the last two years or so, has come from the national workplace health and safety laws coming into effect and people thinking they all apply to any situation. Those laws and regulations were overdone, but what was more overdone, was their application and the error, sometimes at the Parliament level, saying the rules applied to all manner of voluntary associations/gatherings. Two that became famous, were the scouts and the lifesavers. They cried foul and the pollies said a big oops, we don’t mean that, but the damage was done. Elsewhere, every potential Attilla the Hun became self empowered, came to the fore and started barking directions. But it’s not right.

The law says I must take reasonable care to prevent my acts and omissions from harming those I might foresee to be in my harm’s way. If I don’t take that reasonable care and someone is injured, I am liable to them in negligence. But if I take all the care in the world, and I still crash into someone, that is just an accident.

Where it gets more complicated, is where the line is drawn between foreseeable events that I should guard against and events that are too far fetched or fanciful to warrant guarding against. I am liable for the former, but not the latter. For example, what is the risk that if I corner too quickly, I will lose it and take someone out? High risk. What is the risk that a tyre I fitted properly and inflated to the correct pressure, pinch flats in said corner and I take someone out? Low/negligible risk. I need to guard against the first but not against the second.

Further, what is overlooked in all this, is the other rider’s duty to safeguard himself. I mean, it’s as plain as the nose of your face that following a wheel is a risk. (I’ve come a hell of a croppa like that) Riding beside someone has some risk too, but we accept those risks. Liability should not attach in those types of scenario, but see the attachment. Then you have a good bunch rule to protect you all against cars:- keep it tight, but if you keep it tight, there’s almost no way of avoiding another bike swerve to dodge a pothole.

I would change the man’s header because don’t think it’s the lawyers that spoiled the man’s bunch ride at all; I think it is another instance of bureaucrats writing more and more nonsense they know nothing about and the irresponsible politicians not vetting it properly. Lawyers don’t make the laws. But the lawyers sure aren’t blameless and Sara Carrigan is on the receiving end and the bloke in the case attached won in court, although I don’t agree as you will see from my markings.

It is possible though, that to participate in LBS bunches, you will have to sign a waiver one day, just like you do in formal competition or non competitive gran fondos.

It is all complex, perplexing and unknown and the best advice I can give, is to have insurance, like Cycling Australia’s that covers us for any incident whilst riding.

Lawyers Spoiled Social Cycling for Me

10 years ago I started riding my bike after a lengthy hiatus.  I had gained a few too many kilos and decided as many do that I needed to start exercising again so I retrieved my old treadly from the shed, replaced tyres and tubes, lubricated moving parts and took it for a spin.

After a few months of riding solo, I became aware that the local bike shop hosted a Saturday morning ride so I joined the group and got to know the riders.  The LBS riders were helpful and supportive and they tolerated this new rider on an old MTB slowing their average speed by a few klicks for a while before suggesting that I try a road bike borrowed from the shop owner.

I had not ridden a road bike since my teens and had forgotten how addictive the effortless speed was, so having enjoyed the re-awakening of my inner racer, I bought a second hand road bike and continued to ride with the group for several years.  We would meet at 06:00 on a Saturday morning come rain or shine, wait a few minutes for any late arrivals and be on our way, chatting as we rode.

Two years ago that all changed, the LBS owner was informed by his insurance company that his public liability insurance would increase astronomically if he were to continue to host these group rides. Several of the group discussed the issue and it was decided that we would all sign public liability disclaimers releasing the shop from all liability should we be injured on the ride.

This was fine until some of the riders took the concept further a few weeks later when they decided to form a new ride group which had no connection to the LBS at all, apart from the fact that we would still depart from the LBS parking lot.  The new ride group was formed and everything proceeded as normal until one of the new organisers sought advice from a lawyer….

The once casual Saturday morning ride is now a circus run by borderline megalomaniacs who are more afraid of being hit with a lawsuit than an on-coming bus, what started as a bunch of like-minded friends meeting for a ride of indeterminate route or distance is now a micro-managed, regimented procession to the coffee shop.

We arrive at the LBS parking lot before 06:00, are organised into groups by average riding speeds.  Each group is allocated a Ride Leader and a Sweeper who are neither appointed for their riding experience or skill, but based on whether they have completed a ride leader course which is essentially an exercise in common sense.

The organiser then addresses the group with a sermon comprised of infractions of the rules during last week’s ride, the need to stay safe (duh!), the need for more riders to attend the ride leader’s course, and plenty of additional unnecessary drivel.  One week we were regaled with a story of a rider in some other group who, after colliding with the wheel in front of him chose to sue the group for medical expenses and loss of earnings.  This was used as motivation for riders to become leaders (why would anybody volunteer to paint a target of their own back?).

I endured all of this for over a year, then there was a noticeable change – the ride leaders started taking it upon themselves to halt their groups after leaving the parking lot whereupon they delivered their own lecture on common sense to the group.  Commands were barked during the ride and riders were chastised for initiating sprints in the course of the ride, behaviour such as drafting a cement truck (c’mon, I’m sure most of us have done it at some time or other) was frowned upon and brought up in the following week’s sermon.

I no longer ride with a group, on one particular morning when I was grumbling about the indignity of treating seasoned adult riders such as myself like mentally challenged children, I was told by one of these self-styled authoritarians that “No-one is holding a gun to your head (to ride with the group)” so when they took off and turned right at the end of the road, I turned left.

I still have my Saturday morning ride, I still have coffee with my friends after the ride, but I no longer ride with them due to the greediness of insurance companies and lawyers who urge litigation over reconciliation.

It occurs to me that there is a modern perception that there is always someone else to blame for one’s misfortune, individuals looking to make a quick buck at some unsuspecting person’s expense when they meet a problem which may even be of their own cause have empowered lawyers to relentlessly pursue unsuspecting victims.

I figure it this way; if I ride solo, no-one can implicate me in an incident which I may or may not have initiated.  I don’t need to become a ride leader and suffer a course in common sense only to potentially be the target of someone’s lawyer, and I don’t have to endure the indignation of being treated like an idiot before each and every ride.

I do miss riding with my friends though.

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