A lot at stake

[Gob]

WTF? Are we living in the US now?

A cyclist has been ordered to pay his friend nearly $1.7 million in damages after the man was knocked off his bike and hit by a car when the pair collided on their way home from work.

Court documents said David Blick was riding slightly ahead of Michael Anthony Franklin on the off-ramp from Capital Circle onto Canberra Avenue during the evening peak hour on June 17, 2009.

Mr Blick hit a large wooden tree stake that was lying in the bike lane and veered into his friend, causing him to fall off his bike and into the path of an oncoming car.

Mr Franklin, who was 43 at the time of the incident, remembered his friend's body slammed into him before he was thrown on to the road, court documents said.

"I don't have a strong memory of what happened next, other than the fact that a car ran over my back and seemed to spin me around to face the oncoming traffic," he said.

He tried to crawl off the road, but he could not move his legs.

Mr Franklin remembered Mr Blick tried to stop oncoming traffic as another cyclist rushed to help, holding his head in place and telling him not to move.

He recalled he began to experience "incredible, intense pain" as paramedics tried to move him.

The victim suffered serious fractures to his pelvis and spine, internal bleeding, grazes and bruising.

He required pins and screws to be inserted into his pelvis and the base of his spine.

Mr Franklin spent 28 days in hospital and continued to suffer chronic pain, as well as burst of acute pain, which required ongoing treatment in the months after his release.

Court documents showed Mr Blick, who went to the same school as Mr Franklin, often visited him in hospital.

He told him the wooden stake, which he described as 1.5 to 2 metres long had "turned his wheel" towards his friend's bike.

Mr Franklin later returned to work part-time as an IT consultant but continued to experience serious flare-ups of back pain and disrupted sleep, which required medication and meditation courses.

He also underwent physiotherapy, hydrotherapy, massage therapy, and saw a psychologist.

The pain worsened every time Mr Franklin, a contractor, tried to increase his workload over the next couple of years, and he was forced to work fewer hours.

Mr Franklin said he had been fit, healthy and took part in running groups, triathlons and decathlons before the collision.

The accident caused him to "feel down" a lot of the time due to his chronic pain and the medication he was on.

Mr Franklin assumed he would be covered for personal injury because the accident involved a car, court documents said.

But a solicitor advised him the the driver's third party insurance would only cover him if it could be proven the driver was negligent.

He instead sued Mr Blick for negligence, claiming he failed to keep a proper lookout for dangers on the road and was not riding safely.

But Mr Blick denied he was liable and said his only duty was to take "reasonable care" in the circumstances.

He said the fact he lost control of the bike because he hit the wooden stake did not mean he breached that duty.

During legal proceedings, Mr Franklin's occupational physician said his client's physical condition had "plateaued" two years after the incident and his ability to return to full-time work in the future had been affected.

Another physician noted Mr Franklin's ongoing disabilities were "quite significant" and "interfered with all aspects of domestic, social and recreational activities".

But a neurologist who was called as a defence witness was "quite hopeful" Mr Franklin should be able to return to full-time work if he was able to use a standing work station.

In a judgement published on Friday, Justice John Burns found Mr Blick had acted negligently and not exercised reasonable care to observe the piece of wood before the collision.

"The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff.

"The need to exercise reasonable care to avoid colliding with objects likely to cause the defendant to lose control of his bicycle was even more apparent because the cycleway on which the plaintiff and defendant were riding was immediately adjacent to a busy road."

Mr Burns was satisfied the defendant breached his duty of care to Mr Franklin and that the man's injuries were a result of Mr Blick's negligence.

"Bearing in mind the size of the piece of wood and the lighting in the area, I am satisfied that if the defendant had exercised reasonable care he would have seen and avoided the piece of wood."

He ordered Mr Blick pay Mr Franklin $1,659,392.75 in damages, plus legal costs.

Mr Burns said that amount factored in Mr Franklin's loss of future earning capacity and superannuation.

Read more: http://www.canberratimes.com.au/act-new ... z3Hm1jYnq0

[Sue U]

The court found Blick was negligent in causing the accident, and therefore responsible for the consequences. What is the problem? Do you think people shouldn't have to bear responsibility for the consequences of their actions? Are you some sort of sociopath? WTF indeed.

[Gob]

$1.7 million in damages from an uninsured cyclist for an accident?

[Sue U]

The value of damages is what it is and is completely independent of whether the defendant has insurance or any other assets. Similarly, whether the judgment is collectible has nothing to do with valuing the injuries. Personally, I think 1.7 is a little light given the severity of the injuries and age of the claimant; I would have put full value at around $5 million.

[Gob]

Jesus, remind me to hire you next time I'm knocked off me motorbike!!

[MajGenl.Meade]

You can just about see it - two mates riding along close to each other, chatting away. I'd say it should all be total bollocks. Clearly the injured cyclist was riding far too close to his friend to take necessary action to avoid a foreseeable accident. A cyclist swerving on a cycle path - how unusual!

It's about the same as a rear-end car collision - driving too close, no matter what the jerk in front did.

Still I have the perfect answer to "(t)he pain worsened every time Mr Franklin, a contractor, tried to increase his workload over the next couple of years, and he was forced to work fewer hours". All that pain can easily be avoided - if not cured.

He should become a social worker and move to Australia

[No Greater Fool]

[quote="Gob"]WTF? Are we living in the US now?
/quote]
If you were living in the US, the lawyers would have sued the person or persons (probably government 'workers') who placed/left the stake which was the proximate cause of the accident. They probably would also have sued the bike and tire manufacturers.

[rubato]

The accident was caused by a tree stake carelessly left in the road not by the actions of the cyclist.

And you must have fucked up and let some American lawyers in, now they're breeding. You're screwed.

yrs,
rubato

[Econoline]

And you must have fucked up and let some American lawyers in, now they're breeding. You're screwed.

Heh heh. Where 's that "evil grin" smiley?

Oh, here.

[Lord Jim]

You can count me with the normal people who recognize this for the absurdity that it is...

[rubato]

"...

And you must have fucked up and let some American lawyers in, now they're breeding. You're screwed.

It isn't all lost. Maybe you can breed a race of super cane toads that eat lawyers? The toads can pick 'em out by smelling their briefs.


yrs,
rubato

[Lord Jim]

I would have put full value at around $5 million.

heh~ heh...No doubt...

Especially if you were the attorney working on a 40% contingency on the case....

This whole thing could have been avoided if that stake had been painted a bright safety yellow...

[Sue U]

You can just about see it - two mates riding along close to each other, chatting away. I'd say it should all be total bollocks. Clearly the injured cyclist was riding far too close to his friend to take necessary action to avoid a foreseeable accident. A cyclist swerving on a cycle path - how unusual!

Rubbish. Two cars are traveling next to each other; the driver of one, failing to observe debris ahead of him in the roadway, strikes the debris, loses control and swerves into the car next to him. If Mr. Franklin had been riding too lose to Mr. Blick for his own safety, the defense in the case could have claimed contributory negligence or comparative fault. In some jurisdictions, even the slightest contributory negligence would bar the claim in its entirety; in others, comparative fault requires an assessment of percentage of fault as between the parties, resulting in a similar reduction of any damages award. In my sate, if the injured party were any more than 50% at fault, all recovery would be barred.

If you were living in the US, the lawyers would have sued the person or persons (probably government 'workers') who placed/left the stake which was the proximate cause of the accident. They probably would also have sued the bike and tire manufacturers.

If it were my case, I'd definitely want to know where the stake came from and how it got into the pathway. If it had been negligently installed or maintained, that would be another potential source of recovery. But nothing prevented Mr. Blick from going after whoever was responsible for the stake in his path so as to obtain contribution toward any damages owed to Mr. Franklin. From the facts here, it's not likely that anyone would sue the bike or tire manufacturers, since there doesn't seem to have been any defect that was contributory to the accident.

I would have put full value at around $5 million.

heh~ heh...No doubt...

Especially if you were the attorney working on a 40% contingency on the case....

In my state, our contingent fees are on a sliding scale: 1/3 for the first $500k recovered, 30% for the next $500k, 25% for the next, and 20% for the next. Any recovery over $2 million, I'd have to go to court and make a motion for the judge to set the fee. (Typically, it's around 20% on amounts over $2 million, depending on the difficulty of the case and the results achieved.)

I'll adress value in my next post; battery on my laptop is running low right now.

[MajGenl.Meade]

Rubbish. Two cars are traveling next to each other; the driver of one, failing to observe debris ahead of him in the roadway, strikes the debris, loses control and swerves into the car next to him.

Double rubbish. No swerving - the debris threw the vehicle (or bicycle) off course. Plus double bullshit. I've been driving and seen debris (a car muffler) lying in the road and had to decide instantly to drive into it rather than brake suddenly or swerve. But it threw my car off course with (fortunately) no other car near by. If the cyclists were riding a safe distance apart, nbr 2 doesn't get bumped. And if they were riding at my bike speed and distance behind, nbr 2 collapses on the bike path of exhaustion long before reaching the wobbler. There are stupid lawyers as well as smart ones - maybe #1 couldn't afford the top drawer

[Sue U]

Double rubbish. No swerving - the debris threw the vehicle (or bicycle) off course.

Please explain to me how "threw the vehicle (or bicycle) off course" somehow equals "no swerving." Because in my understanding of the English language as used here in the US and A, being suddenly thrown off course is pretty much exactly the definition of swerving. But maybe in Old Blighty "swerving" means "traveling straight on as though nothing had interfered with the vehicle's (or bicycle's) course."

Plus double bullshit. I've been driving and seen debris (a car muffler) lying in the road and had to decide instantly to drive into it rather than brake suddenly or swerve. But it threw my car off course with (fortunately) no other car near by.

And thus solely by the grace of God -- and an otherwise empty roadway -- your negligent failure to observe the hazards right in front of you did not result injury. Your auto insurer is greatly relieved, but your ophthalmologist is due an immediate visit.

If the cyclists were riding a safe distance apart, nbr 2 doesn't get bumped.

And I had specifically said, "If Mr. Franklin had been riding too [c]lose to Mr. Blick for his own safety, the defense in the case could have claimed contributory negligence or comparative fault." Apparently, the defense could produce no such evidence.

Similarly, the defense might have attempted to make the case that whoever was responsible for the stake being in the bike path should also bear some amount of responsibility for the accident, and might have brought that person or entity into the action as a third-party defendant. But for whatever reason they didn't, and whether that was a result of strategy or mistake, they can't complain about it now. (Either way, Mr. Blick might now have a viable malpractice claim against his attorneys that might help defray the cost of the judgment.)

As to the value of the case:

Damages are broadly divided into two categories: economic loss and non-economic loss. Economic loss is lost wages, lost opportunity for future income, medical expenses, costs for any home modification and transport expense necessitated by disability, and other out-of-pocket costs resulting from the injury. Non-economic losses include the physical damage done to the body, the resulting limitation or disability in bodily function, the physical pain occasioned by the injury, the mental suffering and emotional distress resulting form the injury, and loss of the enjoyment of life's pleasures resulting from the injury.

Here, Mr. Franklin was a 43-year old IT professional who cannot return to full-time work as a result of the accident. Let's say he was making a modest $75k a year, and because of his injury he can now only make 2/3 of that. Over the next 22 years of anticipated work life, that amounts to $550,000 in lost wages alone. When you add in the missed opportunities for advancement generally available to full-time workers -- especially someone just reaching his prime earning years -- you're now talking about $625,000 to $650,000 in lost wages. To the extent retirement income is based on current earnings -- whether through savings or pension -- you can add that to the loss column, too, let's say a very modest $50,000 spread out over 20 years of retirement.

At 43, Mr. Franklin would have a life expectancy of about 40 years. Even though he lives in a socialist workers paradise, he could still be expected to incur some disability-related costs that are not paid for by his nanny-state, whether for durable medical equipment, over-the-counter or prescription drugs, bath/shower handles, handicap-accessible features, etc. (the story is unclear about the extent and nature of his permanent disabilities). But even if these costs were as little as $500-$1,000 a year, that's another $30,000 over his life expectancy, so add that into the pot.

I cannot tell from the story if he will need more extensive home modifications or specialized transportation, or what other costs he might have to bear personally, but since conservatively we're already up to somewhere around $725k, let's just round up all economic loss to total $750,000.

Now, on to non-economic loss, colloquially referred to with the catch-all "pain and suffering." According to the story, Mr. Franklin's most severe injuries appear to be pelvic and spinal fractures that had to be fixed surgically with implanted hardware. Such injuries and treatment are excruciatingly painful. Moreover, they will most likely continue to generate some level of pain and discomfort for the rest of his life, and almost invariably will result in a pretty rapid onset of arthritis. Range of motion and ability to lift will be significantly impaired, at a minimum. If the hardware is still in place, there will likely come a time that surgical revision will be required due to erosion and loosening. Retained hardware also poses a serious risk of bacterial infection; it is notoriously hospitable to MRSA.

The spinal damage has apparently impinged on the thecal sac and spinal nerve roots, resulting in both the chronic and acute pains he experiences. Medication might help somewhat, but will not provide lasting relief. Narcotics would be the most effective, but the side effects and addiction potential make them inappropriate for long-term use.

As a result of his injuries, Mr. Franklin will no longer be able to engage in many of the physical activities that had been a regular part of his life, and those things he still can do he will be able to do only with pain and in a limited fashion. Even the simplest things he will have to think twice about before doing them, so as not to aggravate his injuries. He certainly won't be competing in decathlons or running events anymore. He'll never be able to go swimming in the ocean again -- or likely anywhere else. He's not going to get any better -- his doctors say he's plateaued. On top of the pain and suffering from the injuries themselves, imagine the frustration and even anger he will experience at having those pieces of his life taken away.

Nevertheless, his statistical life expectancy is another 40 years -- which is 14,600 days, or 350,400 hours. What is his pain, suffering and disability over that time worth? What would it be worth to him, in terms of money, to be paid to experience all of these these injuries for the rest of his life, with no vacation and no ability to opt out? Would you think $100 a day was too little? Because that would be $1,460,000 in non-economic loss alone. Would you think $100 an hour would be fair compensation for these losses? Because that would mean an award of more than $35 million.

When you think of it in these terms, my settlement figure of $5 million is positively stingy.

[MajGenl.Meade]

Well I certainly wouldn't dispute points of law with yez, m'lady. But language...

"Swerve" is a volitional and/or human act. The point here is that biker #1 DIDN"T swerve (to avoid an obstacle). He hit the obstacle which caused his sickle to deflect from its intended path. You may argue the transitive case "to cause to turn aside" as referring to this stick/stake but the sense of the word demands a non-inanimate cause. If I bounce my car off a tree it has not "swerved" from its path - it has been deflected. I may have swerved into the tree by losing control of the wheel. Or by trying to avoid a squirrel (I don't - I ride over them) or an exhaust pipe.

swerve verb \ˈswərv\
: to change direction suddenly especially to avoid hitting someone or something
swervedswerv·ing
Full Definition of SWERVE
intransitive verb
: to turn aside abruptly from a straight line or course : deviate
transitive verb
: to cause to turn aside or deviate
Examples of SWERVE

He lost control of the car and swerved toward a tree.
<the car swerved sharply to avoid the squirrel in the road

[Lord Jim]

All of the lengthy verbiage about Franklin's injuries, losses , blah, blah, blah, yada, yada, yada, of course misses the fundamental point...

The utter absurdity of his riding companion being found liable in the first place...

[Sue U]

Meade:Potayto potahto. It is ridiculous to try to limit the definition of "swerve" to "a volitional act" when your own source definition does no such thing. But in any event, and notwithstanding the attempted deflection, the point here is that Blick failed to maintain an adequate lookout so as to observe a hazard in his path and take appropriate precautions under the circumstances. His only defense was his claim that running into the stake satisfied his duty of reasonable care. The court thought otherwise. I'll go along with the judge on this one.

Jim: For someone who claims to be of the party of personal responsibility, you sure have a funny way of showing it.

[Big RR]

coming in at this late time, I have to agree with Sue; we don't know everything here, but what we do know is:

1, Under the law, the owner of the car would be liable only if it was the driver's negligence that cause d the accident. Here, it appears that the injured party was pushed into the path of the oncoming car by the other cyclist, and I would surmise that is why the driver was not liable. I would bet if there were any way to recover even partial damages from the car company's insurance company the plaintiff's attorney would have raised it (as would the defendant's to get a sharing of damages if possible). I would far rather recover something from an insurer than from an individual who might have little to satisfy a judgment.

2. The first cyclist hit a stake lying in the bike lane; why it was there is not stated but there is not any evidence that it was their because of a road crew's (or other persons) negligence, hence no other suits are reported.

3. Under the law, any driver (including a cyclist) is required to remain in control of his/her vehicle and take appropriate actions if there are problems ahead; this apparently is the rule in Australia as well, and the court found (based on the evidence) that the first cyclist did not do so, causing him hit his friend's bike and knock him into the path of an oncoming car. That failure to exercise due care was the cause of his injuries. Now without knowing the specifics of the accident we cannot say exactly what this negligence was, but the judge had the evidence before him and found that Mr. Blik acted negligently.

4. there is no evidence that Mr. Franklin was contributorily negligent in any way; as Sue said, if this did exist it would have been a defense raised in the court.

5. Mr. Franklin suffered serious, painful, and debilitating injuries for which he deserves to be compensated by the person(s) causing them.

Now, we can quibble with the amount of the award, but anything else is mere conjecture. There are a thousand ways this accident could have happened in which Mr. Blik would not be at fault; unfortunately, for him, it did not happen that way.


ETA: Re legal fees, the award includes legal costs (which I assume is fees). My guess is that in Australia, as in other parts of the UK, the loser pays the legal fees of the winner, so Mr. Franklin was assuming a risk here as well if he lost. I'm not sure what the attorneys made here or what happens if Mr. Blik cannot pay

[oldr_n_wsr]

Mr Franklin should not have be riding so close to Mr Blik.