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In re death of Rodd (2013) H&FLR 2015-26

Inquest into the death of Robyn Anthea Rodd (2013) H&FLR 2015-26

Coroners’ Court of Victoria

6 February 2012

Coram: Coroner Bryant

No appearances – finding without inquest.

Catchwords: Victoria – Coroner – cyclist – collision with truck – death – pilot vehicle

Facts: The deceased was aged 55 years and an experienced recreational cyclist.  On 26 May 2010 she was cycling on the Great Alpine Road between Harrietville and Mt Hotham.  While descending Mt Hotham the deceased was wearing a fluorescent green jacket and travelling at about 40 kph (25 mph).  As she approached a sharp left bend she saw a slow moving Kenworth prime mover and low loader driven by a Mr Skahill.  Rodd braked, causing her bike to fishtail.  She fell from the bike and into the path of the truck, sustaining fatal injuries.

It was accepted that the truck was on the correct side of the road at all times.

Held: 1. The truck driver did not contribute to the deceased’s death.

2. The roads authority (VicRoads) should consider requiring the use of pilot vehicles by oversize heavy vehicles on steep roads with multiple blind or hairpin bends where the heavy vehicle’s size means it takes up a substantial part of the lane or must cross the centreline to negotiate a bend.

Judgment

The Court’s judgment is available here.

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In re death of Cross (2011) H&FLR 2015-24

Inquest into the death of James Bernard Cross (2011) H&FLR 2015-24

Coroners’ Court of Victoria

10 November 2011

Coram: Coroner Spooner

Appearing for the the family of the deceased: Mr Hevey
Appearing for Mrs Richards: Ms Gleeson
Appearing for the Roads Corporation: Ms Fox

Catchwords: Victoria – Coroner – cyclist – dooring – death – bicycle lanes

Facts: The deased was a 22 year old student.  On 17 March 2010 he was cycling to university along a designated shared parking and cycling lane on Glenferrie Road, Hawthorn, south of the intersection with Barkers Road. A car driver (Mrs Richards) was parked in the shared lane approximately 150 metres from the intersection of Barkers and Glenferrie Roads.  She opened the driver’s-side door, which collided with Mr Cross causing him to fall onto the roadway beneath the trailer wheels of a heavy vehicle with was also travelling south on the road.  Mr Cross sustained fatal injuries in the accident and died at the scene.

The driver’s evidence was that she had considered the possible presence of cyclists, that she had checked her wing mirror and that she had opened her door only 12cm (about 5 inches) when it was struck (1).  She said however that she had not seen the deceased.  The truck driver’s evidence was that he was travelling at around 30 kph (19 mph) at the time of the accident.

Police opted not to charge Mrs Richards with breaching Road Safety Road Rules 2009, r.269(3) (opening a vehicle door to the danger of another).

Held: Concluding that Mrs Richards had opened her door wide enough to knock Mr Cross off his bicycle, but that the truck driver’s driving had not contributed to the accident, that –

1. Cyclists should be considered vulnerable when riding in close proximity to other vehicles.

2. It is the responsibility of motorists to check for the presence of cyclists before opening car doors.  However, it is incumbent on cyclists to remain vigilant when riding past parked cars.  It was recommended that VicRoads take steps to remind both groups of their responsibilities.

3. It was recommended that reconfiguring bicycle lanes to pass to the left of parked cars be encouraged.

Judgment

The Court’s judgment is available here.

Comment: Intriguingly, Court’s third recommendation may have little trouble attracting support at a policy-setting level.  Pro-cycling politicians have observed that “a significant number of people would ride to work and sports and make as many short trips as they could by bike, if it were safe to do so … That means having safer on-road or off-road paths that connect and link the various centres” (2).  The safety-enhancing effect of having bicycle lanes to the left of parked cars would have prevented, for example, the accidents discussed in a blogpost by attorney Tina Willis (3) and looks remarkably like arch-conservative Rush Limbaugh’s robustly-expressed view that cyclists should be required to ride on footpaths rather than on public roads (4).

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(1) How far the door was opened was disputed by another witness.

(2) ‘Pushbike pollies pedalling a new line’, Newcastle Herald, 6 March 2015.

(3) Tina Willis, ‘Bad Week For Bike Riders’, Tina Willis Law, 25 September 2014

(4) Adam Voiland, ‘What does Rush Limbaugh have to say about bicycling?’, Examiner.com, 5 March 2009

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In re death of Sizeland (2013) H&FLR 2015-22

Inquest into the death of Rex Sylvester Sizeland (2013) H&FLR 2015-22

Coroners’ Court of Victoria

28 June 2013

Coram: Coroner Parkinson

Appearing for the family of the deceased: Mr G Stewart (solicitor)
Appearing for Mr Costa: Mr T Bourke (instructors not identified).

Catchwords: Victoria – Coroner – cyclist – hit by car – distracted driver – death

Facts: The deceased was aged 66 years and an experienced road cyclist.  On 21 December 2009 he was riding between Torquay and Barwon Heads. During the ride, he and the other two men with whom he was riding were struck from behind by a car driven by a Mr Costa.

The evidence of lay witnesses was that the deceased and the other two riders were to the left of the road and using about half of the width of the northbound lane.  The court concluded that there was no reason for Mr Costa not to have noticed the cyclists.  The court was somewhat critical of his evidence and considered it likely that he had been distracted by something inside the vehicle, although it could not conclude that he had been reading a text message.

Held:  That Mr Sizeland’s death was preventable and that the death could have been prevented had he paid proper attention to the task of driving.  No action of Mr Sizeland’s caused his death.

Judgment

The Court’s judgment is available here.

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In re death of Sidebottom (2013) H&FLR 2015-20

Inquest into the death of David Andrew Sidebottom (2013) H&FLR 2015-20

Coroners’ Court of Victoria

18 October 2013

Coram: Coroner Saines

Appearing for Ms Connor: Mr Brendan James (solicitor)

Catchwords: Victoria – Coroner – cyclist – distracted driver – death – funding

Facts: The deceased was aged 53 years and an experienced cyclist.  On 2 January 2011 he was riding west on Murradoc Road at Drysdale.  He was approached from behind by a Honda CRV driven by a Ms Connor.  The front left corner of the Honda struck the bicycle and caused the deceased to be thrown off and suffer fatal injuries.

Both at the time of the accident and subsequently the driver was not able to say how the accident occurred (the Court was satisfied that this was not intentional or evasive).  No charges were laid against her.  The driver was not affected by alcohol, speeding or using a mobile phone.  There was some evidence that she may have been distracted.  There was also evidence that the deceased may have deviated suddenly into the path of Connor’s vehicle.

Held: 1. It was likely that the deceased had deviated into the path of Ms Connor’s car in circumstances where she may have neither anticipated nor seen the deviation.

2. Decisions as to the spending of public money was not generally appropriate for a recommendation under §67 of the Coroners Act.  That said, a significant increase in cyclist numbers could support a special case for priority funding in order to enhance community health and safety and reduce the risk of death or injury to cyclists.

Judgment

The Court’s judgment is available here.

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In re death of Lynch (2014) H&FLR 2015-18

Inquest into the death of Brendan Paul Lynch (2014) H&FLR 2015-18

Coroners’ Court of Victoria

2 July 2014

Coram: Coroner Carlin

No appearances (finding without inquest)

Catchwords: Victoria – Coroner – cyclist – highway – hit by bus – fail to give way – signage

Facts: The deceased was aged 52 years and a keen recreational cyclist.  On 31 March 2013 he was cycling from Benalla to Melbourne.  At around 1:55pm he was cycling in the emergency lane of the Hume Freeway at the point where the Freeway merges with the Northern Highway.  He turned his bicycle to the left, bringing him across the path of a bus which was merging onto the Hume Freeway.  Mr Lynch sustained fatal injuries in the collision.

Witnesses said that the deceased had extended his left arm to signal a left turn, but did not agree on whether he looked back for traffic.  The witnesses agreed that the bus driver could not have avoided the collision.  The bus’ speed was estimated at between 80-90 kph (50-56 mph).  A sign on the on-ramp warned of cyclists crossing within the next 150 metres.

Held: 1. That the deceased had failed to give way to the bus pursuant to the Road Safety Road Rules 2009, r.74 and that there was nothing the driver could have done to avoid the collision.

2. Effective signage may have prevented the deceased crossing the on-ramp in the manner which he did.  Signs are particularly desirable in circumstances where the road rules are likely to be disobeyed.  In the present case, Mr Lynch’s non-compliance may have been due to fatigue and a failure to think clearly.

3. It was recommended that a sign reading “cross here with care” should be erected at the point of collision, and that “cross here with care” signs in general should also indicate that a cyclist must give way to merging traffic and cross the on-ramp at a right angle at a particular point.

Judgment

The Court’s judgment is available here.

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In re death of Bailey (2014) H&FLR 2015-16

Inquest into the death of Keiran Bailey (2014) H&FLR 2015-16

Coroners’ Court of Victoria

25 August 2014

Coram: Coroner Spanos

No appearances.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – mental illness – fitness to drive – duty to report

Facts: The deceased was aged 44 years.  On 8 March 2011 at around 1:45pm he cycled from his home to a shopping centre.  He was cycling in a designated bike lane of a road.  The car lanes of the road at the relevant point narrowed from three lanes to two. A car driven by a Mr Veerman, travelling at least 10 kph (6 mph) above the speed limit failed to merge, drove into the bike lane and struck the deceased, causing fatal injuries.  Mr Veerman fled the scene and was subsequently convicted of a range of offences relating to the collision: R v Veerman (2011), Herald Sun, 23 December 2011*.

In the years before the collision Mr Veerman had suffered from marked mental illness and had received some level of psychiatric care.  He held a drivers licence at the time of the collision.

Held: It was recommended that medical professionals be educated to ensure patients’ fitness to drive would be at the front of doctors’ minds when assessing patients with conditions likely to affect their capacity to drive safely.

Judgment

The Court’s judgment is available here.

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* A partially successful appeal by Veerman was subsequently brought: Veerman v R (Vic. Ct App., Weinberg and Harper JJA, T Forrest AJA, 24 August 2012, unreported).

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In re death of Peoples (2010) H&FLR 2015-14

Inquest into the death of Scott David Peoples (2010) H&FLR 2015-14

Coroners’ Court of Victoria

11 October 2010

Coram: Coroner Bryant

Counsel assisting the Coroner: Mr John Goetz
Appearing for the family of the deceased: Mesdames Jane Dixon SC and Esther James (instructed by Riordan Legal).
Appearing for the Blay family*: Mr Barrett (Instructed by Barretts Lawyers)
Appearing for VicRoads: Mr Trevor Wraight (instructed by DLA Phillips Fox)
Appearing for the Chief Commissioner of Police: Ms Julia Greenham (instructed by the Victorian Government Solicitor’s Office)
Appearing for the Cycling Victoria: Mr K. Mueller.

Catchwords: Victoria – Coroner – cyclist – hit by car – death – fitness to drive – duty to report

Facts**: The deceased was a 20 year old cyclist.  At the time of his death he was on the verge of cycling professionally.  While on a training ride on the Maroondah Highway near Merton he was struck from behind by a Nissan patrol driven by a Mr Kenneth Blay.  Mr Peoples died as a result of his injuries.

At the point of collision the road was paved, with a two metre paved shoulder.  The road runs straight and slightly uphill.  Mr Blay stated that he did not see the deceased prior to the collision and was only made aware of the collision by the noise of impact.  He subsequently pleaded guilty to a charge of careless driving: Police v Blay (Mansfield Magistrates court, 1 August 2007, unreported).

Blay’s speed at the time of the collision was estimated at 73 kph (45 mph).  Police considered that he would have had 500-600 metres of unimpeded vision.  The collision was considered to have occurred on the paved shoulder of the road.  Blay had a significant left-side blind spot as a result of a stroke.  In 2004 he had also been involved in a collision with a cyclist on the same road.

Held: 1. The Court strongly recommended mandatory reporting by doctors to licensing authorities of patients considered unfit to drive on medical grounds.  It was not sufficient merely to recommend the patient not drive.

2. Cyclists and motorists share an obligation to use the roads in a safe manner.  However, the particular vulnerability of cyclists imposes an obligation on motorists to drive in a manner that does not put cyclists’ lives at risk

Judgment

The Court’s judgment is available here.

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* Blay had died by the time of the inquest.
** In assessing the facts, note that the Coroner was scathingly critical of the police investigation.

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Le Moullac v Daylight Foods Inc (2014) H&FLR 2015-8

Denis Le Moullac and Jessie Jewitt v Daylight Foods Inc and Gilberto Alcantar (2014) H&FLR 2015-8

San Francisco Superior Court

15 January 2015

Coram: Lam J.

Appearing for the Plaintiff: William Veen and Anthony Label (of The Veen Firm) and Micha Star Liberty  (of Liberty Law)
Appearing for the Defendant: Brent Anderson, Ronald Lenert and Kevin Taylor (of Taylor Anderson); Keith Bremer and Tyler Offenhauser (of Bremer Whyte Brown & O’Meara)

Catchwords: California – road accident – cyclist – wrongful death – damages.

Facts: At around 7am on 24 August 2013 24-year-old Amelie Le Moullac (“the deceased”) was cycling to work in a bicycle lane on Folsom Street in the South-of-Market district of San Francisco. As she approached the intersection of Folsom Street and Sixth Street she was struck and killed by a right-turning* semi-trailer belonging to Daylight Foods and driven by its employee Gilberto Alcantar. The evidence indicated that the bike lane was ‘dashed’ at the relevant point, so that the truck could cross it to enter Sixth Street, but that Alcantar failed to give way to the deceased.

The deceased was wearing a helmet. The evidence was unclear as to whether she was wearing earbuds while riding. It appears Alcantar gave a history of seeing the deceased, passing her, and then losing sight of her shortly before turning. It was unclear what speed either party was travelling.

The San Francisco District Attorney’s office elected not to charge the driver with vehicular manslaughter and the police elected not to issue a traffic infringement to the driver**. The deceased’s parents sought compensation for wrongful death from the driver and his employer.

Held: A jury of the San Francisco Superior Court found that Alcantar had driven negligently and that his employer was vicariously liable for his actions. It found no negligence on the part of the deceased. Damages of $4,000,000.00 were awarded.

Judgment

The matter was finalised by a jury verdict and no written reasons were issued.  The report is prepared based on the Court’s case record, on reports KQED News on 15 January 2015, 18 December 2014, 13 May 2014 and 27 August 2013, and on a memorial website prepared by the deceased’s co-workers.

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* British and Australian readers should remember that American drivers use the right-hand side of the road, and so Mr Alcantar was turning towards the side of the intersection closest to his truck.

** The decision not to prosecute for vehicular manslaughter is perhaps understandable, if conservative: the California Penal Code §192(c) requires at least negligence on the part of a driver; however, the various gradations of negligence in law are tending to become conceptually blurry and there may have been genuine doubt as to how a criminal jury would assess the driver’s conduct: see Stephen Tuck, ‘A recent decision of the Fourth Florida District Court of Appeal’ [Winter 2014] Comm’l Transp. Litig. Cmte Newsl. 10.  The decision not to issue an infringement notice is less explicable. While the California Vehicle Code §21717 required Mr Alcantar to enter the deceased’s lane, safe driving required him to give way to any vehicle already in the lane. An almost identical Victorian case involving a collision between a truck and a pedestrian resulted in a plea of guilty for failing to give way while turning under the predecessor section to Road Safety Road Rules 2009 §72(5)(c): Police v Biagio Favala (Melbourne Magistrates Court, unknown magistrate, 23 September 2008, unreported)

Note: Grateful thanks to Lenore Shefman of Shefman Law Group (Cyclistlaw), Austin, Texas, for alerting me to this case.

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State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

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(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

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Leddin v R (2014) H&FLR 2014-42

Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.

Judgment

The Court’s judgment is available here.