Welcome to Netrider ... Connecting Riders!

Interested in talking motorbikes with a terrific community of riders?
Signup (it's quick and free) to join the discussions and access the full suite of tools and information that Netrider has to offer.

VIC Contributory Negligence

Discussion in 'Politics, Laws, Government & Insurance' started by jdkarmch, Sep 9, 2009.

  1. MRA has spent the last week developing a position on this "controversial subject" which was documented in AMCN this week and earlier by Ulysses Club in their mag. The decision to formulate the Media Release below was voted on at the QGM last Friday night.

    TAC were given the opportunity to respond, and to date have not come back on that request. On further investigation "the letter" (that trigged this all) has been sighted and at least one MRA member has been identified who fits into this category and looks like having their final payout reduced by up to 50%.

    So far the media hasn't picked it up. IMHO, we now need to identify how many people are out there who are affected by having their final payout reduced by TAC. MRA can't do that by itself - its up to riders to get that information to us so that we can take it higher - to the TAC Minister etc.

  2. This has actually happened to someone???

    Beyond that rumour letter some solicitor started?

    Surely their compensation claim is going to court, when the victims lawyer's finish mopping up all their drool at such an easy case?

    There's no standard or rating system for protective motorcycle clothing in Australia. Nor is anything beyond a helmet (and closed shoes?) required by law.
    Slam dunk + court costs, thank you.
  3. I saw that in AMCN. It makes me sick - as you say, what about lycra-wearing cyclists or people in cars w/out ABS.

    If there is a demonstration for this, I'll be there. Absolutely discusting taht they do this on a whim.
  4. It really sucks that they decrease a payout for this. But unfortunately it is a part of the Law.

    It can be argued you were traveling to fast for the conditions (not just wet road, but vs traffic speed, parked cars, safe travel distance etc...). For instance, you see someone approach the side of the road and cross in front (jay walking) of you and you hit them, technically they're at fault for jay walking, but you could have slowed when you noticed them, thus being more likely to swerve/stop and avoid them etc... So you can be found partly at fault.

    In essence no accident is 100% anyone persons fault. If you were not their, you would not have been hit, so technically your partly at fault.

    By the way, I am not a lawyer, just know a few who have tried to explain this contributory negligence thing to me. It is mainly used to reduce payouts from corporations who use the laws to screw victims out of compensation (being individual people, groups or corporations).
  5. I don’t think it would be that simple…
    Lawyers being well lawyers, and the law being less than simple they could argue that a reasonable person would consider a given amount of protection to be sensible blah blah blah,..

    boxtwin2 You almost had a point up until this statement.

    If for example you are stationary behind a line of traffic (no where to split) with a car on either side and someone hits you from behind. How could any fault be attributed?
    You would be considered a known object, there were not options available to increase your safety, and if you weren’t there they would have just hit the vehicle in front of you. (So would that make them at fault?)
  6. The Transport Accident Act 1986 was introduced to establish a "No Fault" system that would remove the lawyers from the equation.

    Prior to 1986 and leading up to the introduction of the Act the MRA mounted a series of protests and ran a public information plan opposing the planned change to No Fault.

    Way back then, and I was a spokesman at one protest ride (yep I was active way back then too), we feared that what we are now being made aware of would happen.

    The issue is complex. No argument there.

    But - No Fault means that nobody should be disadvantaged or lose out financially for the rest of their life after an accident. This is the issue that we as riders (on behalf of all other road users?) need to address. If we care then we will make noise. If we don't, then it will continue and some innocent parties will suffer.

    Now - back to you guys. We will monitor the debate as it continues to unfold.
  7. anyone who is seriously hurt should get them a laywer to deal with TAC, we first starting dealing with them ourselves then decided it would be better to have someone act on our behalf, best decision we made IMO
  8. I'm with John on this one, I was around for the protests and debate that came with the introduction of the 'No Fault' system but it now seems like the TAC want to 'have their cake and eat it too' as the saying goes.

    Either a system is 'No Fault' or we as riders should be able to sue for negligence against other parties at fault.
  9. You do NOT want to open that can of worms!
  10. I've now seen the TAC letter that triggered the solicitor's report. (With the personal details removed).

    Next MCC meeting ask Guy about it - he's got some info on it.

    What gets right up my nose is that when the TAC were asked it was denied.
  11. But legally, what would count as "reasonable protection" since there is no definition as to what is motorcycle specific?

    eg, a boot you buy at a motorcycle store may provide equal protection to a leather work boot a construction worker may use.

    Do you distinguish a difference in protection between them, and on what grounds?

    If we went down this path, would all clothing gear need some form of australian certification under the law to classify it as "motorcycle gear" for these legal purposes? Would that slap an extra fee on the cost of the clothing too? I dont think I want to go there......

    pic relevant :LOL:

  12. More problems with current TAC management.

    They now seem to be running under the delusion that they are a legislative body, private corporation, and almighty deity, all at once...

    Well, there ought to be a very winnable case here, but it is crucially important that the very best legal representation is on our side. I'm guessing the precedent set here will either enshrine 'no fault' forever, or forever exclude motorcyclists from the 'no fault' system.

    This is worth fighting for. I'm willing to tip in some cash to a fighting fund if it is necessary. Keep us informed.

    note: don't go calling for defined standards - like RWCs, it'll be all too easy to find a fault somewhere.
  13. And once there's defined standards - it makes compulsion much easier. And we really don't want to go there either! :evil:
  14. Yes, theres simply too many variables with clothing to regulate it effectively. I think I would speak for most riders when I say I DO NOT WANT to be told what to wear. Especially when regulations are less effective than common sense. Educated riders that have an interest in self preservation can take care of themselves.
  15. I'll assist where I can.
    I'd be happy to do the prep work, but it would be necessary to find and brief a good TAC / injuries lawyer.
    You are correct, you do not want "standards".

    The problem is the Act itself is not strictly "no fault". There are and always have been exemptions from cover (eg: driving whilst under the influence) and the application of the Act is and always has been up to the "whim" of TAC case manager involved.
    But, if the TAC are operating "outside" the guidelines in one or more cases, there needs to be a test case.
  16. Count me in.
  17. Tony care to scan / send me the letter?
  18. If it is worth fighting for, then someone better start screaming louder, because the media have shown not one bit of interest today.

    I would suggest that they have called TAC and TAC have given the routine response "to cover their backs" (if you get what I mean).

    MRA will continue to monitor - but unless some riders want to get excited about this, then I'm not confident there is a case to fight..... :( :(
  19. This is EXACTLY the fight you should be fighting.
    If you haven't isolated yourselves from so many riders groups with all your infighting and petty point scoring then you would have received more support.
    This is EXACTLY what your cow towing to the governments and bureaucrats have resulted in.
    You reap what you sow and when you lie in bed with the wrong crowd don't expect a cuddle in the morning.
  20. The wearing of protective clothing should not have any impact on a persons no-fault entitlements, including a lump sum impairment payout or income.

    If you are about talking about Common Law (where you sue someone) then contributory negligence can reduce your damages. I do not know whether TAC is using the non-wearing of proper gear as a legal defence, but the courts reduce damages for car occupants who were not wearing their seatbelts at the time of their accidents. This applies especially when the injuries would have been prevented by wearing a seatbelt, eg. facial fractures.

    The question is whether there is a lot of a difference between a cage occupant suffering greater injuries for failing to wear a seatbelt, and a motorcyclist suffering greater injuries because they weren't wearing proper protective clothing........