A cyclist who was struck by a jeep reversing out of a driveway, and suffered catastrophic injuries rendering him a quadriplegic, has had his agreed damages of $12m reduced by 25% on account of him contributing to his own misfortune by failing to keep a proper lookout.
On 20 January 2012, Mohgamat Hendricks was riding his electric bicycle home from work in Belconnen in the Australian Capital Territory. He travelled along a designated bicycle path from Belconnen to his home in Macgregor. A portion of the bicycle path travelled along the footpath of Milford Street. That footpath was known as a shared path, meaning it was designated for use by cyclists and pedestrians but not other vehicles. The shared path ran along the front boundaries of several properties in Milford Street and a number of driveways crossed that shared path and out onto Milford Street.
Walid El-Dik lived at 23 Milford Street. Mr El-Dik was revering his Jeep Wrangler out of his driveway when Mr Hendricks collided with the left hand side of the vehicle.
As a result of the accident, Mr Hendricks suffered catastrophic injuries and was rendered a quadriplegic.
There were bushes along the boundary between number 21 and 23 Milford Street, which provided a visual barrier between the properties and also obscured the view of cyclists travelling along the shared path of any vehicle exiting number 23 via its driveway.
Mr Hendricks commenced proceedings in the Supreme Court of the Australian Capital Territory against Mr El-Dik in negligence and claimed damages. He alleged that Mr El-Dik was negligent in that he failed to give way to Mr Hendricks, failed to drive with due care and skill, failed to see Mr Hendricks in time to avoid the collision, and failed to slow down so as to avoid the collision.
Mr El-Dik denied negligence and alleged that Mr Hendricks was contributorily negligent in that he failed to take care of his own safety and failed to keep a proper lookout.
Subject to a determination of liability, damages were agreed between the parties at $12m.
His Honour Mossop AsJ noted that Mr El-Dik knew that the shared path at the front of his house was used by cyclists, that the vegetating between his property and the neighbour would obstruct the view of the path, and that if there was an accident between his vehicle and a cyclist, that the cyclist would come off second best. His Honour found that a reasonable person in the position of Mr El-Dik would have been aware that cyclists would be using the shared path and been aware of the dangers involved in reversing out across the shared path. Mossop AsJ also found that Mr El-Dik reversed out of the driveway at a speed of 8.8 km/h, which was not reasonable for Mr El-Dik to do given that his visibility was extremely limited.
As to contributory negligence, his Honour found Mr Hendricks failed to keep a proper lookout; the reason that Mr Hendricks did not apply the brakes was that he was failing to pay attention to the potential hazards ahead of him and that after realising the hazard, there was insufficient time to react by applying the brakes.
Accordingly, Mossop AsJ found in favour of Mr Hendricks but reduced his damages award by 25% of account of contributory negligence:Hendricks v El-Dik (No 4)  ACTSC 160.
This article was written by Jackie Waugh, Wolters Kluwer Torts editor and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker.