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Cyclists beware

Cyclists beware

By Tom Burgoyne

Personal Injuries 

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For cyclists involved in collisions with parked motor vehicles, it comes down to the point of impact or the purpose of their journey as to whether they have coverage under the transport accident compensation scheme.

Snapshot

  • Cyclists who suffer injury as a consequence of colliding with parked vehicles are entitled to compensation coverage in two discrete circumstances, depending on the point of impact on the parked vehicle and/or the purpose of the cyclist’s journey.
  • Wilson v Transport Accident Commission tested the ambit of s3(1A)(c) of the Act and adopted a contextual interpretation of the words “travelling to or from his or her place of employment”.
  • It is clear that a glaring gap in compensation coverage for cyclists involved in collisions with parked vehicles exists which could be remedied by legislative change.

The Transport Accident Act 1986 (Vic) (the Act) establishes, inter alia, a statutory scheme of compensation administered by the Transport Accident Commission (TAC) for those who suffer injury (including fatal injury) in transport accidents. This is referred to as a “No Fault” scheme of compensation. This article will be confined to cyclists involved in collisions with parked vehicles and their entitlement to compensation under the ‘No Fault’ scheme.1 Recent case law has brought into sharp focus the anomaly that exists in the Act regarding such matters.

Entitlement to compensation under the Act

Section 35 of the Act creates an entitlement to compensation where a person is injured as a result of a transport accident.

Section 3(1) of the Act defines a “transport accident” as “an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram”.

Clearly, a cyclist would be covered if a collision was directly caused by the driving of a vehicle. Further, a cyclist will be covered even if there was not a collision with a vehicle per se if the driving of a vehicle nonetheless caused the accident (such as where a cyclist needs to take evasive action to avoid a collision but ultimately suffers injury).

In respect of cyclists, s3(1A) of the Act provides that certain “incidents” will constitute a “transport accident” (which may be termed “deemed transport accidents”) as follows:

  • an incident involving a collision between a pedal cycle and an open or opening door of a motor vehicle (colloquially referred to as “car doorings”) – s3(1A)(b)
  • an incident involving a collision between a pedal cycle and a motor vehicle while the cyclist is travelling to or from his or her place of employment – s3(1A)(c).

It is the combined effect of these two sub-paragraphs which creates the anomaly.

Background

“Journey claims” (travelling to or from your place of employment) were previously covered by the WorkCover scheme but such entitlements were removed in 1992.2

Then, in February 1997, a Victorian resident, Dale Sheppard, was riding his bicycle to work when he collided with the rear of a parked vehicle, sustaining serious injury, including quadriplegia. The TAC denied his claim for compensation on the basis the incident did not constitute a “transport accident” (ie, it was not directly caused by the driving of a motor vehicle). This decision was affirmed by the Victorian Civil & Administrative Tribunal (VCAT).3

Through intense lobbying, the Act was amended.

The then minister for WorkCover Bob Cameron in the second reading speech in introducing an amendment to the Act via the Transport Accident (Amendment) Act 2000 (that which now appears as s3(1A)(c) of the Act) said:

“The bill also extends access to TAC benefits to a cyclist who is injured in a collision with a parked vehicle while riding to or from work. Honourable members will be aware that a cyclist, such as a bicycle courier, who collides with a parked motor vehicle during the course of his or her work is eligible for Workcover benefits. However, as their respective [A]cts currently stand, neither Workcover nor the TAC provide access to benefits for cyclists injured in a collision with a parked vehicle while on their way to or from work. That anomaly is now corrected.”4

A further provision was added to specifically name Mr Sheppard in the Act in order that the amendment had retrospective effect as though it were in force at the date of his accident.5

Wilson v Transport Accident Commission

On 9 July 2014, retired teacher Richard “Rory” Wilson had completed some work in the early hours of the morning on his farm in Drysdale, a place at which he also resided. He then set out on a bicycle ride with a group of cyclists. From time to time it was common for these cyclists to stop at a café mid-route. It was Mr Wilson’s intention to recommence work on returning to his farm.

However, on the way back, Mr Wilson collided with the rear of a parked truck in Portarlington. No one was in the truck at the time of the collision. Mr Wilson sustained serious injuries as a result of the impact, including paraplegia. While hospitalised, Mr Wilson also suffered strokes, which, aside from cognitive damage, also impacted strength and movement in his upper limbs.

The TAC denied Mr Wilson’s claim for compensation on the basis he was not injured in a “transport accident”.

The proceedings at first instance

An application for review was issued at VCAT by Mr Wilson in respect of the TAC’s decision with reliance on s3(1A)(c) of the Act.6 Ultimately, an agreed statement of facts was filed with VCAT which contained inter alia that:

  • Mr Wilson’s home/farm was his “place of employment”
  • the purpose of his ride was not connected with the farm
  • he intended to recommence work once he returned to his “place of employment” (it was not disputed that Mr Wilson had engaged in work on his farm prior to embarking on his ride).

There had been no earlier judicial interpretation of s3(1A)(c) of the Act.

Mr Wilson relied on the applicable principles of statutory interpretation, being that the language of the provision in question will be the focus of the inquiry,7 and submitted that a literal meaning be given to the text of the provision itself. Mr Wilson contended that the provision required an analysis of the cyclist’s intent to ride to a geographical location (the “place of employment” as opposed to “employment”) and nothing more. The TAC submitted that the High Court of Australia had previously considered similar wording to the provision in question in various other jurisdictions (including workers’ compensation, military compensation and seamen’s compensation), and that ‘the long-accepted meaning’8 should apply.

Ultimately, VCAT preferred the TAC’s submissions as to the long-accepted meaning of the words and it was held that there must be some connection between employment and the ride itself. Further, Mr Wilson did not need to ride to his place of employment.

VCAT affirmed the TAC’s decision to reject liability for Mr Wilson’s claim for compensation under the Act.

Mr Wilson then appealed to the Supreme Court.

Supreme Court Appeal

On 3 May 2017, Bell J of the Supreme Court dismissed Mr Wilson’s appeal.9

Bell J held that in interpreting the words of s3(1A)(c) of the Act, it was parliament’s intention to adopt a similar meaning to the words “travelling to or from [the] place of employment” which had previously been the subject of authoritative interpretation by the High Court in respect of legislation that was considered on the same matters (in pari materia) with the Act. Mr Wilson sought to distinguish these other statutes by highlighting that none were specifically related to transport accident compensation. Therefore, a contextual meaning of the relevant words was adopted.

In reaching his decision, Bell J stated at [50]:

“On the undisputed facts, Mr Wilson undertook work before and intended to undertake work after the ride at the place of employment where he both lived and worked – the farm. Contrary to the submissions made on his behalf, this does not bring the case within s3(1A)(c). On the proper interpretation of this provision, the question is whether the ride was connected with the employment at the place. This criterion is not satisfied by a rider’s intention to undertake employment at the place after completing a ride that was not connected to that employment.”

The upshot is that there must be a purposive nexus between the ride and the place of employment (ie, the ride must be for the purpose of completing employment and not purely recreational in nature).

In his closing remarks, Bell J commented at [51]:

“The court has great sympathy for the personal position of the plaintiff and his wife. He suffered life-changing injuries in an accident involving a motor vehicle. As a matter of policy, one may wonder why riders who run into parked cars on their bicycle and suffer serious injury should receive only public health and welfare benefits while drivers who run into parked cars in their motor vehicle receive transport accident compensation. The difference especially matters when the consequence is an injury as serious as paraplegia. But, as a matter of law, the extension of coverage for transport accident compensation to bicycle riders involved in motor vehicle accidents that was introduced in the Transport Accident (Amendment) Act was not comprehensive.”

Need for legislative reform

The anomaly in the Act for cyclists involved in collisions with parked motor vehicles includes:

if a cyclist collides with an open or opening door of a parked vehicle, they would be entitled to compensation under the Act (see s3(1A)(b))

if another cyclist in the same group of riders collides with any other part of the same parked vehicle, they would only be entitled to compensation if they were riding “to or from [their] place of employment” and they can establish that there was a purposive nexus between the ride and employment (pursuant to s3(1A)(c) and its treatment in Mr Wilson’s case).

The anomaly is even more amplified when one considers that a motorist who collides with the same parked vehicle at a time where the relevant transport accident charge was not paid in respect of their own vehicle (an uninsured motorist) will be entitled to compensation coverage under the “No Fault” scheme (albeit with some preclusion on their entitlements).10

Conclusion

The time is right for the Act to be amended to remove the anomaly (and consequent perverse outcomes) in respect of cyclists. One suggestion is to simplify the present wording of s3(1A)(b) and (c) to read:

“An incident involving a collision between a pedal cycle and a motor vehicle”.

Coverage under the “No Fault” compensation scheme for cyclists has proven to be a somewhat divisive issue. However, the above proposed amendment will allow common sense to prevail, given:

  • there already exists within the Act limited coverage for cyclists involved in collisions with parked motor vehicles
  • the proposed amendment is limited in its application and is not intended to create comprehensive coverage in respect of cyclists (it always being anchored by the involvement of a motor vehicle).

At a time where traffic congestion is increasing and there is an emphasis on community health and wellbeing, action should be taken.

 

Tom Burgoyne is a senior associate and heads the motor vehicle accidents practice at Slater and Gordon in Geelong.

 

1. Conditionally extinguished rights at common law (see s93 of the Act) or unfettered negligent ‘use of’ motor vehicle claims (see s94 of the Act; Hynes v Hynes [2007] VSCA 7) may be open, as the case may be.

2. See s83(2)(b) of the Accident Compensation Act 1985 (Vic).

3. Sheppard v Transport Accident Commission [1999] VCAT 98/01198.

4. See Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2000, 937 (Robert Cameron).

5. See s3(8) of the Act.

6. Wilson v Transport Accident Commission [2016] VCAT 1063.

7. See Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (NT) (2009) 239 CLR 27; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1.

8. See Commonwealth v Wright (1956) 96 CLR 536; Adcock v The Commonwealth (1960) 103 CLR 194; Landers v Dawson (1946) 110 CLR 644; Commonwealth v Hollis (1968) 118 CLR 305; Jamieson v Repatriation Commission (1984) 2 FCR 311.

9. Wilson v Transport Accident Commission [2017] VSC 209.

10. See s40(1)(b) of the Act.


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