Quadriplegic awarded $9 million in damages
The Canberra Times
July 12 2016
A Canberra public servant has been awarded $9 million in damages after he was left quadriplegic when his electric bike collided with a reversing car.
Mohgamat Hendricks was found partly responsible for the crash which happened as he rode home from work in Belconnen the evening of January 20 in 2012.
Mr Hendricks was travelling along a footpath in Latham when the Jeep Wrangler reversed in front of him and he cried out before he hit the the side of the vehicle.
ACT Supreme Court documents stated the driver of the car, Walid El-Dik, had given evidence the impact was "pretty significant" and said to the rider immediately after the crash: "You were flying mate".
Mr Hendricks, who was rendered a quadriplegic due to injuries sustained in the crash, attempted to sue the Mr El-Dik for $12 million in damages.
His lawyers claimed Mr El-Dik was liable because he failed to drive with appropriate care and skill, failed to keep a proper lookout and failed to see the defendant in enough time to prevent a collision
They argued he also hadn't taken other precautions and slowed down, given way to the bike rider or sounded a horn to warn the rider of the impending crash.
Mr Hendricks said the driver should never have reversed out of his driveway at the speed he did, which experts said was about 8km/hr, given his vision to the south was obscured.
In a decision published on Monday, Associate Justice David Mossop found Mr El-Dik was negligent in driving the way he did.
He said a reasonable person in Mr El-Dik's position would have been acutely aware of the significant dangers involved in reversing out across a shared path.
Associate Justice Mossop said the driver was largely prevented from seeing traffic coming along the shared path and was somewhat dependent upon path users detecting the potential danger of a reversing car.
"There is no doubt that the risk of there being a collision between the first defendant's reversing vehicle and a pedestrian or cyclist on the shared path was a risk which was foreseeable and not insignificant," he said.
"The defendant knew that he had a "massive... blind spot" in the direction of Kingsford Smith Drive, he knew that the path was used by cyclists and pedestrians and that reversing out might lead to an accident involving someone coming from that direction."
Lawyers for Mr El-Dik launched a claim for contributory negligence against Mr Hendricks on grounds he failed to take adequate precautions, had been travelling too fast, and was driving a 500W electric bike, when ACT law requires they be under 200W.
Associate Justice did not accept that the illegality of the Mr Hendricks electric bike provided a basis for a reduction in damages, but he found Mr Hendricks was partially responsible for the crash.
He said Mr El-Dik should have been aware he was required to give way to vehicles on the shared path and knew cyclists used the path, and that he had a blind spot when reversing.
Despite that, he had reversed at the speed he did in circumstances where he was entirely dependent upon oncoming vehicles to detect the hazard that he created in order to avoid an accident, Associate Justice Mossop said.
"This conduct must be compared to the conduct of the plaintiff which involved a momentary failure to maintain the level of concentration required in order to guard against the possibility that a driver might not meet his obligation to give way to vehicles on the shared path," he said.
Associate Justice Mossop ordered Mr El-Dik's insurers pay Mr Hendricks $9 million and awarded him costs