Published: 20 July 2017
Author: Ryan Carlisle Thomas
Time to plug holes in TAC cover for cyclists and pedestrians
It is now high tide to deal with this issue. Debate rages in the community each time a significant bicycle accident appears on the 6 o’clock news or goes viral on social media. There have been a number of incidents recently that have caused concern on this particular topic, namely:
- Instances of ‘dooring’ (where cyclists are knocked from their bikes as they pass motorists when opening their car doors when parking), or inattentive drivers, sparking nasty and (in some cases) violent road rage incidents as recently as a few weeks ago;
- Cases where pedestrians are injured by negligent cyclists, and in some cases result in serious injuries; and
- Other cases where Transport Accident Commission (TAC) covers those injured in accidents involving cyclists and registered vehicles, but there is no recourse for those injured to be compensated by way of damages for their pain and suffering.
No TAC compensation available to pedestrians injured by negligent cyclists
As the law reads today, there is zero compensation available from TAC to those who have been injured as a result of negligent riding by cyclists. One of our clients is a gentleman who has unfortunately been caught in such a scenario.
Our client was in the Melbourne CBD recently and waiting to cross Spencer Street on Collins Street. The lights for traffic (including trams) turned red and he began to cross the road. In doing so, a cyclist ran the red light at speed and collided with our client as he was crossing the road. As a result of the collision, the client has required attendance at the emergency department and has required time off work.
Our client is an accountant and taking into account we’re now in July 2017, it’s any wonder why he’s a little edgy and very keen to get back to work as soon as possible. However, he has no entitlement to compensation from TAC. The only benefits he is able to access is through his own private health insurance and income protection insurance (if he has any) and any insurance policy held by the negligent cyclist (which many don’t). It’s a well-known fact a high proportion of the community cannot afford such a high level of insurance.
Accidents involving negligent cyclists and no entitlement to damages
In November 2016, there was a horrendous collision in the Geelong CBD involving a truck and a cyclist, which resulted in what the news quoted ambulance officers describing as “injuries not compatible with life”.
Readers may recall the subsequent debate in the media about the sensitivity or otherwise around this description. A truck driver had been travelling westbound on Ryrie Street in Geelong (a dual lane divided carriageway) and a cyclist travelling in the wrong direction passed in front of the truck and was hit.
On all accounts, the scene was horrific. There were countless witnesses who saw the impact and the devastating and graphic injuries to the cyclist. For those that witnessed the accident and were not on an authorised break from work, coverage is afforded by the TAC. For the truck driver, as he was likely undertaking work at the time of the collision, WorkCover would afford him compensation by way of weekly payments of compensation and payment of medical and like expenses; same as for the pedestrian witnesses.
However, if the driver of that truck suffers a ‘severe mental or permanent severe behavioural disturbance or disorder’ then the trucker driver is plainly unable to recover any damages from the negligent cyclist – a significant loophole in TAC coverage. Just because the truck driver has collided, through no fault of his own, with a cyclist who was recklessly riding the bike the way he was, why should that mean that he has no entitlement to make a claim for damages?
If the truck driver has suffered such an injury, he now has to rely on WorkCover weekly payments (which are paid at reduced rates) to get by, when others who have accidents caused by another negligent driver of a motor vehicle are able to claim damages for future loss of earnings.
Enough warfare on our roads
I can see both sides of the arguments between motorists and cyclists, which at times resembles warfare.
There is plainly not enough mutual respect on our roads, whether they motorists, cyclists, or indeed pedestrians. It would help matters if we were all more conscious of each other’s safety.
Given that accidents still occur however, the Victorian Government needs to address the significant loopholes in our compensation scheme.
If bicycles are not going to be required to be registered, then some form of TAC coverage needs to be afforded, even if it’s limited in terms of the circumstances of the accident (i.e. at-fault coverage); particularly in circumstances where injuries have been sustained by a pedestrian that are caused solely by the negligence of the cyclist who, in many cases, is uninsured.
We all have a duty to take care of ourselves and avoid injury where possible; but in circumstances such as those our client found himself in, those not at-fault should not be left out to fend for themselves when the most minor change in circumstances could make them eligible for compensation.
I’m not going to engage in the debate on whether bicycles ought to be registered; there is enough debate about that out there. What we are suggesting is that TAC coverage ought to be afforded to those injured by cyclists whether in general terms, or under defined and limited circumstances such as making such eligibility at-fault.