As bike rider numbers increase on Australia’s roads, so too do calls for law reform to cater for vulnerable road users. Simon Vincett investigates.
Craig Saunders loved to ride. He was fit and confident—a sensible road user. He knew the roads in Tasmania’s Huon Valley, just south of Hobart, like the back of his hand. He particularly knew the dodgy bits, as did his equally experienced riding companions. Sadly the 57-year-old died on the roads he loved to ride.
On a straight stretch of road on 5 August 2013, in broad daylight, Craig Saunders was struck from behind by a ute. The driver, Michael Lee McCulloch, 50, of Ranelagh in the Huon Valley, said he simply didn’t see him.
Last year, the case was brought before the Hobart Magistrates’ Court, where Magistrate Michael Daley was told McCulloch didn’t swerve or brake before he drove his ute at 80km/h into Saunders on the road between Huonville and Cygnet.
McCulloch told the court he didn’t see Saunders or his riding companion, Steve Barrett, in the seconds before the collision. He claimed the sun was in his eyes, but this claim was rejected by the magistrate.
Magistrate Daley said the cyclists would have been visible to McCulloch for up to 12 seconds before the crash and no blame could be attached to Saunders. McCulloch was unlicensed at the time and had a poor driving record and four prior convictions for drink-driving.
He sentenced McCulloch to four months’ jail, but suspended the sentence on condition he not commit another offence or he’d face a term of three years behind bars.
In his sentencing, Magistrate Daley said:
“I must send a message to the community that inattentive driving—and inattentive driving in the case of cyclists—is to be taken seriously.”
McCulloch, a father-of-four, was ordered to perform 150 hours of community service and was disqualified from driving for 18 months. The crime carries a maximum penalty of 12 months in jail and a $1300 fine.
Craig Saunders was a popular figure not just for his passion for riding and keeping fit, but for his community work.
The anger at his death came, therefore, not exclusively from the cycling community but also the wider community aware of the case.
Questions were asked—not just how someone could be cut down like that, but why the man who killed him walked free with only a suspended sentence and could be back on the road in 18 months.
The horror and outrage was repeated just months later when another Tasmanian cyclist was killed on the West Tamar Highway near Launceston on a straight stretch of a four-lane highway where cyclists are frequent and visible.
Timothy Wayne Yole, 26, pleaded guilty in the Launceston Magistrates Court to having caused the death of cyclist Lewis Hendey, 21, by negligent driving and having driven without due care and attention.
Hendey was on a training ride with his best mate when Yole’s utility ran into the back of him in perfect driving conditions at Riverside at about 8.24 am on 29 December 2014.
Launceston Magistrate Reg Marron jailed Yole for four months, wholly suspended for two years, and disqualified Yole from driving for 18 months—the same suspension as Craig Saunders’ killer.
A review of the law
Bicycle Network’s Advisor in Tasmania, Garry Bailey, said that despite the legitimate outrage over the sentences in both cases, the reality was that these suspended sentences and licence suspensions were in line with general sentencing history and principles in Tasmania.
“If there can be a positive legacy from these awful episodes, it is that Tasmania will initiate sentencing reforms that will allow magistrates and judges to take account of the vulnerability of cyclists, motorcyclists, pedestrians and other users that don’t have the protection of a metal cocoon,’’ he said. “The suspensions are far too light for crashes that result in the death of a person. Some drivers should be disqualified for life, particularly those who have a history of reckless disregard for others, as was very obvious in the case of Michael McCulloch.”
“Bicycle Network is making a submission to the Sentencing Advisory Committee on the treatment by Tasmanian courts of persons convicted of serious driving offences, in particular where those incidents involve cyclists,’’ Mr Bailey said.
“One of the foundations of that submission will be the sentencing guidelines regarding causing death by driving issued by the Sentencing Guidelines Council in the United Kingdom. Under those guidelines one of the determinants of the seriousness of an offence when sentencing is when the offender has failed to have proper regard to vulnerable road users.
“In essence, the greater the vulnerability of the victim, the greater the culpability of the offending driver. In the case of Craig Saunders’, given the magistrate’s rejection of Michael McCulloch’s excuse, he could have expected a much tougher, and fairer sentence, in many other international and even Australian jurisdictions.”
It’s not only Tasmania who are looking at whether the punishment fits the crime when a cyclist is injured or worse after a crash.
Queensland has considered law reforms following the release of the report of the Parliamentary Inquiry into Cycling Issues by the Transport, Housing and Local Government Committee in November 2013.
The Committee recommended that the Queensland Minister for Transport and Main Roads introduce a criminal offence of “Infliction of Injury or Death to Vulnerable Road Users” based on the model statute for a vulnerable road user law drafted by the League of American Bicyclists.
Before the March 2014 Tasmanian state election the Liberal Party announced that it would scrap suspended sentences, saying this reflected a community view that there should be tougher penalties for some crimes. Since taking government it has referred the matter of suspended sentences to the Sentencing Advisory Council, which will examine the use of other sentencing options.
Support for reforms are coming from across the political sphere.
Bicycle Network’s Advisor in Tasmania, Garry Bailey, said Tasmania’s Infrastructure Minister, Rene Hidding, has indicated he is also considering the recommendations of the Queensland report with a view to road safety reforms to improve conditions for cyclists on Tasmanian roads.
“We welcome that analysis and believe its many recommendations can be comfortably applied in Tasmania without the need for further exhaustive inquiry,” Mr Bailey said.
While the two Tasmanian cases are horrific, the reality is the majority of collisions on roads do not result in the death of a bike rider. But any collision with a motor vehicle has the potential for a significant injury. Under the current system, significant injury can play against their chance for a positive outcome in the courts.
Geraldine Collins, a Principal at law firm Maurice Blackburn and an Accredited Specialist in Personal Injury Law, said cyclists can struggle to gather the evidence they need after a crash.
“It is highly likely that the cyclist or other vulnerable road user is the person who is worse off. If they are treated at the scene or taken off in an ambulance, they are not in a position to gather the details of any people who are around to act as witnesses. They would, therefore, lose the opportunity to be able to get the information that would be required to establish fault on the part of the other person.”
The civil law system of Australia, which governs all cases that are not criminal, requires the injured party to bring a case to establish the fault of the other party to be awarded damages.
“If I’ve got the head injury and I’ve got no memory and I can’t prove my case, then the other side, who might be completely at fault, can just sit there with their arms crossed and they don’t have to prove anything,” Ms Collins said. “They can say, you’ve failed to prove your case and, therefore, you lose.”
To address this problem, some advocates are suggesting that the principle of strict liability be introduced into Australia as part of a vulnerable road user law.
“The concept of strict liability here means that the vulnerable road user is always going to be found to be not at fault,” explained Collins. “If somebody impacts with the vulnerable road user then that means they are at fault, whether they are or not. The fact of the collision is sufficient to satisfy any requirements for compensation.”
For a driver that collides with a bike rider, for instance, that means their insurer would automatically be liable for damages to the bike rider.
To Collins, strict liability would be a welcome addition to the law for the protection of all vulnerable road users: “If that is something that then causes everybody on the road to be more careful and to be looking out and thinking that in a suburban street you drive at 30km/h because there might be kids that dart out from behind parked cars, well what’s wrong with that?”
Claims after a crash
Vehicle registration fees in most states in Australia (VIC, NSW, Tas and SA) include a premium for compulsory third-party insurance. This insurance pays out costs for a collision to both parties regardless of who is at fault, depending on certain parameters. However, these systems also limit the parties’ recourse to common law claims.
Ms Collins said in Victoria, the TAC (Transport Accident Commission) has a scheme to help road users, including bike riders, after a crash.
“The TAC scheme is a hybrid, it’s partly statutory benefits and partly common law, so that even if I’m at fault in the TAC scheme I still get an entitlement for medical expenses, for wages for a certain period and I may have an entitlement for a small lump sum depending on what my injuries are. If I’m injured sufficiently I pass a threshold to bring a common law claim.”
In some respects the Victorian TAC scheme can be said to resemble the strict liability laws that underpin European insurance because the driver’s insurer—the TAC—is always responsible. Furthermore, the rider can never be at fault in Victoria, a feature that riders in Europe may envy.
Ms Collins’ professional assessment though is measured. “The Victorian scheme in theory is very good, though there are problems with that, such as that the threshold for common law is very high. You have to have a very high level of injury to qualify: a 30% whole person impairment or a serious injury. So a lot of people get injured but they don’t qualify for common law and that’s where the Victorian system is unfair. The other area where it’s unfair is that even though you’ve got coverage for your medical expenses, it has to fit within the definition of covered expenses, and it’s still subject to the TAC saying whether they will pay. Quite often they cut off payments or services and then the person has to fight for it. There’s a group that misses out and it’s people who may have very significant injuries and they are not entitled to anything.
“Whereas if you had the entitlement for common law, with strict liability, you yourself would be able to bring your claim, get your lump sum and you are able to choose the services you want and you don’t have to go through the rigmarole of dealing with an insurer perpetually for the rest of your life.”
These no-fault statutory benefits do not exist in Queensland or Western Australia. In these states, injured parties only have recourse through the courts to claim damages, therefore, strict liability would offer a swift resolution to an unfortunate collision or a lifeline if fault was impossible to prove.
Some argue, notably insurers, that strict liability can cause a failure of people to take responsibility for their own behaviour. They favour a presumption of liability system, rather than strict liability. With this system, those presumed liable can rebut their liability, either completely or to claim contributory negligence from the other party.
Ms Collins cautioned against this weakening of the concept.
“It may well be that—to draw an extreme example—somebody is drunk and is weaving all over the road while they’re riding then they need to accept some responsibility,” she reasons. “The capacity to establish contributory negligence would appease insurers in that situation. It doesn’t though protect the person who has the serious head injury and there are no witnesses. That’s where the insurer would rebut the presumption of strict liability on the basis that we say that you can’t establish your case.”
Overall, Ms Collins said she sees benefit in strict liability in the sense that it has scope to prompt people to take more care on the roads. However, when serious criminal cases in Australia result in such disturbingly unjust sentences as were seen in these Tasmanian examples, it seems much more needs to be done to protect vulnerable road users.
Reform of sentencing and culpable driving laws … would ensure that killing or injuring someone on the road has outcomes for the perpetrator that better reflects the seriousness of the crime.
Solutions proposed by advocates include reforming the various state statutory schemes to make them more like the Victorian TAC system, reforming culpable driving-type offences and reforming sentencing laws.
Reform of sentencing and culpable driving laws is the focus for Bicycle Network’s Garry Bailey. This would ensure that killing or injuring someone on the road has outcomes for the perpetrator that better reflects the seriousness of the crime.
“The law around the world is moving on this issue,” Bailey said. “Already in Australia this legislative reform has occurred. In the ACT the Road Transport Act was amended this year with a new section defining an aggravated offence—furious, reckless or dangerous driving [Road Transport (Safety and Traffic Management) Act 1999, Section 7A]. The section lists seven definitions of an aggravated offence, including ‘when a person drives in such a way that puts at risk the safety of a vulnerable road user’,” Mr Bailey said.
Closer to his home in Tasmania, progress in the right direction is being made.
“The Tasmanian Government already uses the term ‘vulnerable road users’ in its road safety literature and policy pronouncements. That in itself is recognition that they are different to other road users, such as cars, trucks and buses,” he said.
“That clear recognition is starkly drawn in the Government’s road safety campaigns. The message in those campaigns is simply: share the road, take special care around vulnerable road users, be patient, be courteous.
“Above all, these campaigns recognise that the consequences for a vulnerable road user as a result of the negligence of a vehicle driver are potentially fatal. Yet the law, when it comes to sentencing, treats the vulnerable no differently to those who have the added protection of that cocoon of metal, seat belts, and airbags, not to mention the technology that makes cars safer and easier to drive and more responsive in moments where quick decisions are required or evasive action is taken.”
The Tasmanian Sentencing Advisory Committee is expected to take until July 2015 to issue an interim report on a wide range of sentencing matters referred to it and until the end of 2015 or beyond to issue a final report.
By then the killer of Craig Saunders will be back behind the wheel.
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