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Case Law, Principles, Precedents & Other

Discussion in 'The Pub' started by Justus, Mar 4, 2011.

  1. Yesterday morning I watched a rider come to grief.

    Blue Gixxer was filtering up towards the intersection. He reaches the lights and a few moments later they turn green. I watch him open the throttle right up and follow him under hard acceleration. I then hear an almighty bang and see a rag doll flying through the air. Both his white converse boots came off.

    Car was doing a U-turn further up the highway and would ordinarily have had plenty of time. But not this time because the rider was speeding.

    Sometimes more than one driver may be at fault. When a Magistrate decides that both drivers are at fault they will then decide how the fault is shared between the drivers. This is called contributory negligence.

    Contributory Negligence cases from Magistrates Courts right up to the High Court of Australia dictates that both the rider and driver will share blame. This will be case whether the driver simply didn't look twice before proceeding across the lanes or was 3 times over the allowed blood alcohol concentration.

    What we can discuss is what percentage of contributory negligence do you give to each person eg. rider 70% at fault, driver 30% at fault.

    Joel and Wendy’s cars collide at an intersection. Wendy failed to give way and Joel was speeding. Joel makes a claim against Wendy for damages to his car worth $5000. Wendy makes a claim (cross claim) against Joel for damages to her car worth $2000.

    At the hearing, the Magistrate first decides that Joel is 60% responsible for the accident and Wendy is 40% responsible. The Magistrate then decides the amounts that each of them are claiming for repairs to their cars are fair and reasonable. Finally, the Magistrate awards Wendy $1200, which is 60% of what she was claiming, and awards Joel $2000, which is 40% of what he was claiming.

    Even though the Magistrate decided Joel is more to blame for the accident, the cost of repairing Joel’s car is higher. As a result, Wendy has to pay Joel $800 (which is $2000 - $1200). She also has to pay for the costs of the repairs to her own car, while Joel has to pay a further $4,200 to repair his car.

    When I have time, I'll post some interesting court cases revolving around contributory negligence and other related legal principles.


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  2. From what I understand contributory negligence is a civil concept and doesn't apply to traffic law.

    So as far as fines and/or points go it will still be up to the cop on the scene as to who gets the ticket and then the party to dispute that in court.
  3. Contributory Negligence - A common law defense to a claim based on negligence, an action in tort. A defendant to an accident lawsuit by a plaintiff may claim that the absolute defense that the plaintiff's own negligent conduct contributed to and may have been the primary cause of the accident, and thus absolving the defendant of liability.

    Dictionary answer, doesn't mention anything about which courts it applies to but being a common law defense I would hazard a guess that it would be accepted in all of Australia's courts????????? Purely a guess though.
  4. Yep. I can think of at least one example where a bike exceeding the speed limit has been used as a defense by a driver that hit them:
  5. i'd be argueing along the case of "so you're saying that speeding is more dangerous than not giving way?"
  6. Was the U turn legal? There's few places where they are. How over the limit do you think the rider was? Did the rider open the taps to make a yellow light? If it was an illegal U turn I would place blame mostly on the driver. Not giving way and performing an illegal manoeuvre causing an accident. With out any more info I would put 80% on the driver.
  7. The Judge would apportion blame based on the specific circumstances of the specific incident, mind you.

    A bike would have little contribution if the car began its U-turn as the bike was (more or less) just alongside.

    On the other hand, if the car driver had opportunity to observe that traffic was 200 metres away in a 60 zone (that's about 11-12 seconds of driving time), began their U-turn rightly thinking that they would complete the maneuver in time, only to have a motorcycle doing 120kph enter through the driver's side door about 6 seconds too soon.... That's where the apportioning of blame comes in.
  8. If you read the article again you will see the magistrate didn't apportion blame and in fact found him guilty and imposed the maximum penalty.

    Seems like the cops were slack with the charges
  9. There has also been the reverse - a Victorian rider successfully argued that he was forced to speed to avoid a collision, due to a driver's negligence.
    But that's a side-track.
  10. The motorcyclists speed was used as a defence though. And in the subsequent appeal the suspension period was reduced significantly.

  11. This exact scenario occurred to me, Was at a Cross Intersection, i was facing a give way, the road that i was about to cross curved, I could only see a short distance to my left, I head checked both directions and proceeded into the intersection, only to drive into a car that was speeding from the left. Luckily neither of us were injured, however my car was a right off and Police found me at fault for not giving way.

    Even though the car on my right was traveling 70-80km an hour in a 50km zone.
  12. That's the way I first read it, but on re-read I noted the magistrate didn't buy into the argument and imposed the maximum penalty
  13. We're talking about damages ibast.

    The motorcyclist was hurt and was not moving. Now the damages recoverable in respect of the motor accident shall be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

    Refer to s 74 Motor Accidents Act 1988.

    1. The U-turn was legal ie. their is a barrier between opposing flows of traffic with an opening specifically there for U-turns.

    2. 80km/h speed limit. From the lights to the point of impact would have been 4-5 seconds so he would've been way over the limit; at least 20km/h over by my estimate.

    3. No. Lights were red. He was filtering to the front. As he got the stop line, the lights turned green & he opened the throttle

    The driver failed to give way. The motorcyclist failed to drive in a safe manner ie. was speeding & drove at a speed that was too fast for the conditions because he could not swerve or move to the centre or far left lanes to avoid the collision.

    Motorcyclist: 70% blame.
    Motorist: 30% blame.

    Spot on Spots (pardon the pun) :p

    So based on that, what % would you apportion to each person?

  14. I had a friend in a situation where she failed to give way to a speeding driver. They couldn't prove the driver was speeding. She ended up 100% at fault. I'm no lawyer but it seems failure to give way is easy to prove but the motorcycle speeding is not.
    Also the speed the bike was over the limit probably wasn't as big a cause of the crash as was his excessive acceleration which is not illegal. If the bike didn't break the speed limit but excessively accelerated, leading to an accident, where would the fault lie?
  15. Cant have been a serious accident, because the forensic cops are pretty good at determining speed at the site of an accident.
  16. My understanding that in Vic excessive acceleration even below the speed limit can fall under the hoon legislation and is illegal.

    I am more than happy to be corrected if I am wrong.
  17. Also to be fair it's hard to rely on what one person says I'm this situ. If I got cleaned up in a similar situation I'm sure my belief would have been that I looked and the other driver was speeding even if I didn't look. The human mind has trouble accepting it's made a mistake.

    On the otherhand, Speed at impact if the driver broke without leaving skids can also be a lot less then the speed the driver was actually going. I'm not sure how good forensics are to determine the speed the driver was going before they took evasive action.
  18. I am no forensic cop, but I am guessing if there was no skids on the road then they would probably measure the skids in your jocks for an accurate speed measurement.

    Seriously though, the physics are pretty standard, i reckon they could figure it out. The cops see this stuff pretty regularly, and they have lots of tools.
  19. I would say there would be a fairly large margin of error. I'm no forensic cop, but I would take a guess that speed of impact could be worked out quite accurately but speed a vehicle was traveling before breaking would be much harder. There are so many variables involved. I would love to hear from someone whose had experience with crash speed estimates to hear how accurate they can be.
  20. Now there is a bit of context. And with that I have a few points and questions.

    2. 80km/h speed limit. From the lights to the point of impact would have been 4-5 seconds so he would've been way over the limit; at least 20km/h over by my estimate.

    Where the riders excuse comes in is that he was accelerating rather than doing a constant speed - that is what spots failed to account for. Consider:

    lets say he was donig 110-120 at the time of impact, I think that is a reasonable estimate. I doubt he would have been doing a perfect quarter mile start. Now the difference in distance travelled between accelerating at WOT to 80 and sitting or accelerating until 120 at wot is 4/5 of a bees dick. It really is not much at all. A quick rough calculation suggests that if he sat at 80 after accelerating, he would have been 10 metres behind crash point at the time of the crash. That would have given him a grand total 0.5 seconds more. Not much really.

    Can that extra 10 metres be reasonably considered as giving way? Would the rider still be going over the bonnet half a second later?

    The motorcyclist failed to drive in a safe manner ie. drove at a speed that was too fast for the conditions because he could not swerve or move to the centre or far left lanes to avoid the collision.

    Notwithstanding the speeding (because it really doesn't make difference and it's not my focus here) is the last bit acceptable. Sure in nsw if you crash cops also hit you for crashing. But is it reasonable to assume that if you are involved in an accident you were going to fast? If someone jumps out at you inappropriately they are considered at fault for not giving way, you are not at fault just becaus you could not swerve around them or avoid the accident. I dont see how that is judged as riding "at a speed that was too fast for the conditions". The motorcyclist in vic that hit the off duty officer who was doing a u-turn in fog died, and the officer was charged and convicted. Why is this scenario different? Not because of the fog, that is part of the conditions, the rider should have been going slower. (Following quote from similar but different situation).