1 September 2020

A Win for a Cyclist When a Careless Driver Backs Into Trouble

Zavodny v Couper & Anor [2020] QSC 42 Kevin Barratt
Kevin Barratt Compensation Lawyer

A recent decision out of the Supreme Court in Cairns in the matter of Zavodny v Couper and QBE Insurance resulted in a victory for an injured cyclist who took evasive action to avoid a reversing driver.

Evasive action

The plaintiff, Mr Zavodny was riding his electric bicycle along McIlwraith Street, South Townsville. He was intending to visit Ede Shade Solutions. The roadway was fairly wide with spaces for perpendicular parking outside the store.

As Mr Zavodny was approaching the store, the vehicle driven by Mr Couper reversed into his path. Mr Zavodny was injured in attempting to take evasive action.

Although liability was admitted there was a claim on behalf of QBE that Mr Zavodny had been contributorily negligent for not keeping an adequate lookout, for travelling at an excessive speed to negotiate around reversing vehicles and for failing to ride in the middle of the lane where he would have been more visible to reversing drivers.

The critical factual finding was that Mr Couper did not reverse gradually from the parking area which could have alerted Mr Zavodny to slow down or to take evasive action but rather he reversed abruptly in front of Mr Zavodny leaving him no option but to take evasive action. Mr Zavodny was injured in the course of taking evasive action.

The Court found that Mr Zavodny was riding appropriately as near as practicable to the left side of the road (in accordance with the relevant traffic regulations) and even if he had been riding in the centre of the lane it wouldn’t have made a material difference to him being seen by reversing drivers. There was no evidence that he was travelling unreasonably fast, or that he was travelling too close to the parked vehicles or that he was not keeping a proper lookout.

Mr Couper was not called to give evidence.

Judgement

Judgement was entered in favour of Mr Zavodny with no reduction for contributory negligence.

Mr Zavodny was awarded $633,987.57 in damages.

Mr Zavodny suffered a fracture to his left ankle (which later progressed to osteomyelitis) as well as neck, shoulder, chest and rib injuries. He also developed an adjustment disorder with depressed mood. He claimed his injuries prevented him from relocating to Western Australia to take up a job offer to manage fishing vessels. 

The medical evidence supported a finding that Mr Zavodny’s injuries precluded him from effectively performing the tasks associated with managing a fishing vessel. It was not a role where he could simply delegate some of the heavier tasks to a deckhand or crewman. It was determined that he was permanently unfit to work as a master or crewmember on vessels.

Mr Zavodny was 59 years of age at the time of the accident. His economic loss was calculated on the basis that he would have worked full-time to age 70 and part-time to age 75. He was awarded $292,452.60 for past economic loss and superannuation and $206,094.47 for future loss of earnings including the loss of employment benefits for a motor vehicle and accommodation.

One of the significant issues in determining economic loss was the extent to which Mr Zavodny had recovered from his injuries. 

During the course of the claim, the insurer claimed legal professional privilege in respect of a number of surveillance reports. 

In an earlier application, however, the Insurer was ordered to provide copies of the surveillance reports to the Claimant’s solicitors.

The case goes to show that a relatively straightforward accident can throw up complicated issues to be determined.

 

 

Kevin Barratt is Bennett & Philp’s resident cycling enthusiast who represents a number of cyclists and who keeps a close eye out for cases involving wins for cyclists. 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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