QLD: Power walker hit by cyclist loses court battle

AAP General News (Australia)
12-16-1998
QLD: Power walker hit by cyclist loses court battle

BRISBANE, Dec 16 AAP - A member of a Sunshine Coast power walking group has lost his court
battle against a fitness centre after being run down by a cyclist.

Leslie John Heil, now 63, had sued the Suncoast Fitness Centre, at Maroochydore, after he
was injured during one of their organised power walks.

He was walking in a group of four led by fitness centre employee referred to only as Gay
on January 6, 1995, on a path at a park at Alexandra Headlands, frequented by walkers,
joggers, bike riders and rollerbladers, when he was run down by a cyclist coming over a crest
of a hill.

It was alleged Gay should have told Mr Heil to remove himself from the path as they
approached the crest or to fall back and walk in single file.

Mr Heil was appealing a personal injuries action he had lost in the District Court, which
if he had won would have seen him awarded $35,791.

The Court of Appeal dismissed the appeal saying neither the fitness centre nor its employee
was responsible for preventing the accident.

"It was not suggested Gay had any greater skill, expertise or experience than Heil when it
came to assessing a situation of possible danger," Justice Glen Williams wrote.

"It could not be said that Gay was a person of authority as far as Heil was concerned."

He said Mr Heil was in just as good a position to appreciate the risks of the undertaking.

"I have difficultly in comprehending how an employer in the position of the respondent here
could be said to be exposing those participating in one of its organised walks to a risk
arising from the conduct of the undertaking.

"The only exposure was to the ordinary risks to which every user of a park is exposed, and
with respect to which every user is capable of taking avoidance measures."

AAP smk/sd/bjm

KEYWORD: HEIL

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