The rise of e-bikes
With rising petrol prices and greater congestion on our roads, you may have noticed an increased amount of motorised or electric bicycles (e-bikes) on your daily commute.
Generally, a motorised bicycle is a bicycle with an electric motor attached, capable of generating no more than 200 watts of power. The definition of “bicycle” in the Australian Road Rules excludes any vehicle with an auxiliary motor capable of generating a power output over 200 watts. Motorised bicycles are exempt from registration and compulsory third party insurance in Queensland, and that position is largely consistent throughout Australia. The rider of a motorised bicycle is generally required to adhere to the same road rules, and has the same rights and responsibilities as the rider of a normal bicycle.
The Supreme Court of the ACT considered the issue of liability where a motorised bicycle collided with a reversing motor vehicle on a public footpath in Hendricks v El Dik (No. 4)  ACTSC 160. In that matter, the plaintiff was riding his motorised bicycle home from work in the afternoon along a bicycle path. A portion of that path travelled along a footpath which ran parallel to a road, and a number of driveways crossed the footpath including the driveway of a property owned by the defendant.
The plaintiff collided with the left hand side of the defendant’s 4WD vehicle when he was reversing out of his driveway (the accident). The defendant’s property boundary included a collection of bushes which obscured the view of the footpath from any vehicle exiting the driveway. When he reversed out of the driveway the defendant had the windows of the car up, a CD playing and the air-conditioning on. The defendant had turned to the left with his left arm holding onto the passenger seat looking behind the vehicle and in the direction from which the plaintiff approached. When he saw the plaintiff he immediately applied the brakes. The trial judge found that the defendant was reversing his vehicle at 8.8km per hour. The plaintiff did not brake or swerve before colliding with the defendant’s vehicle. The trial judge found that the plaintiff was riding his motorised bicycle at 18km per hour - more than double the defendant’s speed.
The plaintiff suffered catastrophic injuries as a result of the accident and his damages were agreed at $12 million.
The plaintiff purchased and fitted the electric bicycle kit to his mountain bike about one month prior to the accident. The electric motor was connected to a controller, an accelerator and a series of three 12 volt batteries. The nominal power of the motor was 500 watts and the plaintiff’s motorised bicycle was capable of speeds up to 24km per hour. As the electric motor fitted to the plaintiff’s bicycle was capable of power output over 200 watts, he was prohibited from riding it on the footpath under both the Australian Road Rules and the applicable motor vehicle registration legislation in the ACT.
Prior to the accident the plaintiff was unaware of the capacity of the bicycle kit which he had fitted and he had not attempted to see how fast how the bicycle could go at maximum speed. He was also unaware that in order for it to be lawfully ridden the capacity of the electric motor had to be no greater than 200 watts.
As the defendant was attempting to enter a road from either a “road-related area” or “adjacent land” he was obliged to give way to any bicycle on the footpath which he had to cross to enter the road under the Australian Road Rules. While the determination of what reasonable care requires in any case is not resolved by asking whether the relevant conduct was prohibited by the Australian Road Rules, the fact that particular conduct is prohibited may be a factor pointing to the conclusion that reasonable care was not taken.
The trial judge found that the defendant was primarily liable for the accident but the plaintiff was also guilty of contributory negligence. Liability was apportioned 75% to the defendant and 25% to the plaintiff.
The trial judge found that the defendant was aware that his vision was obscured, he knew that the footpath was used by cyclists and pedestrians, and that reversing out might lead to an accident involving someone coming from that direction. Although the defendant was travelling at only 8.8km per hour and the trial judge noted that this appeared to be low having regard to the kind of speeds at which motor vehicles usually travel, it was still found to be an excessive speed in the circumstances. The trial judge noted that the defendant’s speed was twice the ordinary walking pace and equivalent to a jogging or running place. It was further noted that a speed not greater than half the normal walking pace (approximately 2km per hour) would have meant that the defendant’s vehicle only emerged very slowly from the driveway. In addition, pausing for a brief period such as two seconds at the point where the rear of the vehicle was at the edge of or just protruding onto the footpath would have increased the period of notice given to any bicycle travelling on the footpath.
The trial judge found that while there would be nothing unusual or inappropriate about reversing at the defendant’s speed if there was a clear vision of the surroundings, it was not reasonable for him to have reversed out at that speed in circumstances where his visibility was limited, he was crossing a path which he knew to be used by cyclists on a regular basis and there were reasonably safe alternatives available to him.
As for the plaintiff’s conduct, the trial judge noted that electric bicycles were not yet so common and so regulated that a reasonable person may assume that because it has been used or sold that it will comply with the regulatory requirements in relation to its power output. The trial judge found that the plaintiff failed to take reasonable care for his own safety as a reasonable person would, prior to acquiring or riding a bicycle with an auxiliary electric motor, have identified what motors were permissible and would have made enquiries as to the capacity of the motor on the bicycle. However, the trial judge found that the fact that the bicycle had an electric motor capable of producing 500 watts as opposed to 200 watts was not a sufficient basis for the reduction of the plaintiff’s damages as the different stopping characteristics were not causative of the accident.
In terms of the plaintiff’s speed, the trial judge was not satisfied that a cyclist travelling at 18km per hour and paying proper attention to the potential for a vehicle to emerge from an obscured driveway was failing to take reasonable care for his own safety. However, the trial judge found that the reason that the plaintiff did not apply the brakes was that he was failing to pay sufficient attention to the potential hazards ahead of him. On that basis, the trial judge reduced the plaintiff’s damages for his share in the responsibility for the accident by 25%.