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NSW First crash

Discussion in 'Politics, Laws, Government & Insurance' started by Enrgkid, Nov 7, 2013.

  1. So I just had a crash and am seeking advice, I was riding home from kenthurst down a windy little road, obeying all laws.(i legitimately was) and I cam round a blind right hander, and I have this towering ute coming towards me, I believe it was a ford f250 or something, he was taking up both lanes, and I was forced to go round, there was not enough time to stop, and when I attempted to go around him, there was not enough space and I hit a Cliff face side on and scratched up my new bike, as well as snapping indicator stalk.

    My foot is sore as f*** and I have a broken finger, but other than that I'm fine.

    Should I call the police and make them aware, or should I call my insurance company and make a claim?

    Sorry mods if this is wrong section but I wanted to post it

  2. If he failed to stop very much call the police (hope you got his rego)

    even if he did stop the police need to be called as you sustained injuries.

    As for how to avoid this in the future, hug the shoulder for a better view through the corner, ride at a speed that you can stop in the distance you can see.
    • Agree Agree x 2
  3. From the sound of it stopping would have got you run over. Still not a reason to ride faster than you can stop.
    Remember in wide out tight gives you the best vision.
    Get your police report, your insurance company will want it.
  4. If u can't identify him and got his rego I wouldn't call the cops. Good chance u might get a fine. If u do I would get a not so close friend to act as a witness who saw it all and can back up your story.
    • Disagree Disagree x 1
  5. Is there any way the NSW plod could level a "fail to maintain control" infringement for this accident?

  6. Exactly Rob. No witness, no F150 and just you tying yourself up in knots at the cop shop trying to explain.

    Is it a road you travel often? Can you afford to sit discretely for a while there and see if the F150 goes past again? May be his way home.

    If you don't have his reg, leave the cops out of it. If you do get his reg go hell for leather.

    'Failing to maintain control' and being 'forced off the road' are two very different statements with evidence.
    • Agree Agree x 1
  7. Glad to hear you are relatively ok.
    I agree with reporting it. Injuries might seem minor for now but there can always be complications. Get yourself into "the system" and hope it actually can do good for you.
    Insurance I'd contact but if you can't prove who it is you might get stuck with an excess or the choice to pay for the repairs yourself.
    I assume you were thoroughly checked out (by knowing you have a broken finger)? If you weren't then make sure you do get thoroughly checked out.
  8. Alright so I.have been to the cop shop. He asked for more.detailed photos. Admittedly he didn't seem to take me serious but nonetheless I reported it for the sake of insurance claim. It's not a road I travel often. I was just taking an alternative route home.

    I daresay the kind of car in the area would be his route home.

    Thanks for the feedback my foot is as they call severely strained. And finger is broken. Which is a pain as my bike is my main mode of transport.
  9. Insurance companies wont give 2 sh!#s about a police report unless you can ID at fault driver. They will still sting you for your excess
  10. Excess is cheaper than the 1500 repair bill the bike shop.gave me. Mind you the parts and stuff I could replace my self. But it's still.about 1000 by the time you add it all up. Cowl, left side fairing, indicator, mirror, bar ends and levers. I'm out for 6 weeks. :/ so upset
  11. Honestly - there is little point in seeing if you can find the other vehicle NOW.

    There is this concept of "reasoable doubt". All they would need to do is introduce "reasonable doubt" that they were in fact there at all, and you are done. For example - is there ANOTHER vehicle of that type description that could possibly have been there?

    Unfortunately, without being able to determine the rego etc at the time, you are now on a hiding to nothing with regards to proving their presence. They will always be able to throw it open to doubt.
  12. If you had a witness then finding the car would be worth your time. However without one, you won't get too far.

    I believe in matters relating to road accidents, it's more on the balance of probabilities than proving something beyond reasonable doubt. reasonable doubt is saved for criminal cases
  13. Yes, slowrider "reasonable doubt" is technically applied generally at a criminal level. However the concept still applies. And since most people are familiar with the term, thats why I used it.

    WRT to the accident, what is actually at issue here is a civil matter - whether or not there is another party at fault who shoud bear the burden of cost - through the insurance company. In civil matters the burden of proof is vastly different in most cases. But even so "resonanable doubt" still applies.

    Note that I did not say "proven BEYOND resonable doubt".
  14. GoPro probably would have been ultra handy in such a circumstance.
  15. There's no way i'd splash out a grand on repairing that. There's a distinct possibility it may well happen again - so leave the gravel rash and make sure you get the next at fault drivers rego, repaired for free ;)
  16. @Darrenwilliam79 that's what I said. Worst thing is I'm getting one for.Christmas. I am out of.riding until after christmas
  17. do insurance companies even consider the other party at fault if there is no collision? police might have written the guy an infringement if you could ID him, but at the end of the day you lost control and crashed, yes the other guy was on the wrong side of the road but he didn't hit you.

    i have heard of instances where drivers have swerved to avoid a collision and crash and as a result been found to be at fault by the insurance company.
  18. Glad you are ok.
    Did the right thing in my opinion.
    Go Pro sounds the way to go
  19. In this instance, there is no other party to consider. It's a non-recoverable claim so the claim is processed like an at-fault claim.

    Correct, and this is no different to what happens in Court.

    It's simply not a matter of whether what you did was legal or not (as OP contends), but also what part you played in the incident. For example, would the accident have been avoided if the rider was travelling in the centre of their lane? If the answer is yes, the rider is to be held partly at fault.



    Judgment of His Honour Judge Herriman

    Plaintiff: DAVID WARDLE
    Counsel: MR F DI FAZIO - Solicitors: MOLONEY & PARTNERS

    Defendant: TIMOTHY FOWLER
    Counsel: MR P DAY - Solicitors: FINLAYSONS


    1. The plaintiff sues for damages for personal injuries suffered by him in a motor vehicle accident on 20 January 1996 on Main Road No. 96 at Cudlee Creek.

    2. In the afternoon of that day, the plaintiff was riding his motorcycle in a southerly direction along Main Road No. 96 and was negotiating a crest coupled with a bend in the roadway, when he collided with the defendant's truck, which was travelling in the opposite direction along that road.

    3. On all accounts, the collision was a glancing blow and the plaintiff did not fall from his motorcycle, but it is not disputed that he suffered personal injury in consequence of it.

    4. For the purposes of the trial and these reasons, it should be assumed that Main Road No. 96 travels in a north-south direction, but, having said that, it was common ground that the impact was at some distance south of a crest on the roadway and that, for a driver travelling southwards, the roadway curved to the left, or east, as it descended from that crest.

    5. The matter came on before me for a determination as to liability only, and the real issue was as to the location of the point of impact: how far was it south of the crest and was it on, or to the east, or the west, of the centre lines of the roadway?

    6. For his part, the plaintiff contended that that point was approximately eight metres south of the crest and on his correct side, albeit near the centre lines of the roadway. The defendant denied this and said it was some 20 metres south of the crest and approximately two metres into his, or the western, carriageway.

    7. The fixing of that point was critical in my determination of liability and I will now discuss the evidence relating to it.

    THE PLAINTIFF'S CASE (David Wardle)

    8. The plaintiff gave evidence. He is a truck driver and is now 37 years of age. At the time of the accident, he was riding a Ducati 900 sports motorcycle. He had owned it for some three to four years and it was used for both work and recreation. He generally rode it, recreationally, in the Hills and on weekends, and sometimes he would travel considerable distances. Sometimes he would ride by himself and sometimes with others. He was familiar with Main Road No. 96 and had ridden on it many times before, as often as once per fortnight, and in both directions.

    9. He was particularly aware of the bend and crest on which the accident occurred and described it as a "marked point" (p.23). He remembered it well, because of an accident involving a riding companion of his, Paul Jackson, which had occurred there within 12 months before the subject accident. On that occasion, he had been riding with Jackson in a northerly direction along Main Road No. 96, and had passed the bend, but had then looked back to check his friend was with him. He had seen him literally flying through the air, having come off his bike on the bend. He had gone back and spent an hour at the scene, examining the bend and noticing how dangerous it was. Jackson had not been seriously injured.

    10. He had met Jackson at a motorcycle shop, which they both patronised and which ran fundraising activities related to motorcycle riding. He said that that particular stretch of roadway was frequently spoken about by members of the club.

    11. The accident occurred at 3 or 4 p.m. on 20 January 1996. The plaintiff was then living at Parafield Gardens and had set off from there with another friend, Andrew Fidock, who was on his own motorcycle. They were intending to ride for a few hours in the Hills. He said that at the time of the accident, they were both travelling in a southerly direction along Main Road No. 96 and Fidock was ahead of him. He identified the scene from various photographs which were contained in Exhibit P3 and described how, as he approached the crest from the north, his speed was about 80 kilometres per hour and he was positioned in the centre of the southbound carriageway. As he got closer to the crest, he moved his cycle towards the right of his lane and the centre of the roadway, to give him more room to negotiate the crest and the left-hand bend which followed it. He said that was a standard practice. He also decelerated to a speed he estimated at 35 to 40 kilometres per hour. He said that just prior to the crest, there is a speed advisory sign suggesting a speed of 35 kilometres per hour.

    12. As he began to turn through the left-hand bend at the crest, he saw the defendant's truck approaching him on its incorrect side of the roadway. Accordingly, he tried to make his left-hand turn a tighter one, but he was unable to do that. He remembered feeling some impact with the truck and being surprised that he was still upright on his motorcycle afterwards. He felt pain in his right hand, which was gripping the right handlebar of the motorcycle. He looked down to see that the glove he had been wearing on it was shredded and pinkish flesh was exposed. At about that time, he felt pain in his right leg and he looked down to see a lump of flesh hanging from just below his knee and outside his riding boot. It was flapping and dripping blood. He then said he tried to slow down by applying the right-sided handbrake, but he then realised that the brake lever had snapped off. He tried to push his right toe onto the foot brake pedal, but seemed to be unable to exert any pressure on it. Accordingly, he raised his whole right leg from the rest pedal and moved it forward so as to place his right heel on the brake pedal. He was then able to use that heel pressure to bring his motorcycle to a halt. He could not say whether that heel braking caused the rear wheel to lock at any stage, but he recalled that he slowed down gently and, as he did so, guided his motorcycle over to the left-hand side of the road, stopping it beside a steep earth embankment which descended to the roadside verge. He identified that embankment in photograph 24 of P4. About four to five feet up it, was a fence.

    13. He said that after he stopped, he had a screaming fit for a few seconds, because he then saw the damage to his right leg, which he thought was life-threatening, due to blood loss. His riding boots came up to about three inches below his knee, yet the impact had somehow torn away flesh from part of his lower leg extending well below the top of the boot, and it was hanging outside the boot.

    14. He thought that he had to do something urgently to staunch the blood flow. He threw his helmet off and swung his left leg over his bike so that he was sitting side-saddle on it. He said that people then approached. A belt was put tightly around his leg and a T-shirt was used in an attempt to stem the blood flow, but it was ineffective. He thought it would help stop the bleeding if he were to raise his right leg, so he turned, placed his shoulders on the bike and hooked both feet on the fence above him. The tourniquet was half-way up his thigh. By this time, there were several people around him and some were consoling him.

    15. An ambulance then came and he was taken to the Royal Adelaide Hospital.

    16. He identified some photographs of his motorcycle (P2) and said the horizontal gouges on its right-hand fairing had been caused by the accident. There was also a cavity in its upper front and that had previously contained the right-hand turn indicator, which was missing after the accident. He said his bike had been new in late 1994 and had done about 20,000 kilometres at the time of the accident. It was in excellent condition. He identified, in photographs, certain areas where blood had congealed on the motorcycle frame.

    17. He was asked to describe the circumstances of his view of the truck immediately prior to the accident and he said that as he came over the crest, he saw that the double white lines in the centre of the roadway were disappearing under the front of the truck as it came towards him.

    18. In cross-examination, he acknowledged that he had previously owned two motorcycles, 500cc and 250cc models. He agreed that fundraising undertaken by the motorcycle shop was to support bike racing at Mallala. He had himself tried that once, but had no wish to do it again and he simply enjoyed watching it. He said that on the day of the accident, he and Fidock were going nowhere in particular; they were just driving in the Hills. They had had nothing to drink. Fidock was not a particular friend and this was the first time they had ridden together. When he had last seen Fidock, the latter was about 200 metres in front of him. He did not see Fidock go through the bend, however, and could not say at what speed he passed through it. He agreed that as one got to the crest travelling in a southerly direction, the roadway turned sharply to the left. He agreed that the north and southbound lanes were fairly narrow, but he did not know whether there was any difference in their width. The weather was fine and visibility was good.

    19. He was first aware of the truck just before he reached the crest and, at that stage, from his position on the motorbike, he could see where its wheels were. The body of the trunk was straddling the barrier lines and extended to his side of the roadway by some two to three feet, but he could not estimate the truck's speed. It was not slow and it was not excessive. He could not say whether it was travelling at 25 to 30 kilometres per hour, because he had a very limited opportunity to see it before the collision. He said he had not attempted to evade it by pulling the handlebars to the left. He said the preferred method of doing this was, rather, to lean one's body the other way, that is, to the right, but he was not sure whether he had been able to do that, because of the limited time he had had.

    20. He agreed that a motorcyclist entering a bend as he did would generally line up his bike and intended passage before the bend. He agreed that that was harder to do when one could not see the roadway ahead, even if one knew the roadway. He agreed it was possible to miscalculate in doing that, but that was why he had reduced his speed. He was unable to say whether the truck took any evasive action, but he did not see anything happen. When he first saw it, it was a distance away he estimated as the width of the courtroom. He said he thought that his hand had made contact with the rear of the tray on the truck. It was forceful, but it did not throw him off. It was enough, however, to have fractured two fingers, cut others and fractured the handbrake lever.

    21. He did not know whether the force of the impact threw him to the left or not, but he did have to steer the motorcycle to regain control. He was unable to recall whether the blows to his hand and his leg were simultaneous or successive, nor could he say precisely how he was able to regain control after the collision. His reaction after realising he was injured was to attempt to get over to the left-hand side of the roadway and stop, but not too quickly. He described the impact as more of a glancing blow, but not enough to throw him off. He said that the skin which came away from his right leg extended down to his ankle. His jeans were ripped, but his boots were not. He recalled trying to poke the flesh back in. He described his action in applying the brake with his heel as involving lifting his whole leg and standing on the brake with his heel, but he could not say whether that caused the bike to skid. When he came to rest, he could not see the truck. He was upset, thinking that the truck driver had left the scene, but he was more worried about his own condition.

    22. He then spoke of the two witnesses Mr and Mrs Clyma. He had not known them before the accident, but had met them a couple of times since. They had taken photographs of the scene and given them to him. He did not get details from them at the scene, but they came to see him in hospital some time later.

    23. He was tested on the position of the defendant's vehicle on the roadway, but adhered to the view that it was two to three feet over to his own side. He rejected the suggestion that as he entered the left-hand bend, his motorcycle crossed the centre lines and was on the northbound carriageway. When he saw the truck, he said, it was about three-quarters of the way around its right-hand turn and just about to reach the crest. The impact was just south of the crest. It was put to him that the impact was not there at all, but at a point where he exited the bend, some 30 to 35 metres north of Sunning Hill Road. He disagreed with that.

    24. He did not observe any skids or markings on the roadway and did not look at the roadway at all after the accident. It was put to him that as he decelerated in the bend, his speed was greater than 35 to 40 kilometres per hour. He said:

    "It might have been a couple more but that would be it. It wouldn't be either 50, 60, 70 km/h or something like that." (p.57)

    25. He said that immediately after the impact, as he became aware of the loose skin flapping from his lower leg, he was still travelling at about the same speed as before, but said he then applied his brake in the way described and slowed down gradually before pulling off to the side. It was suggested to him that the natural deceleration of his bike would have brought it to a halt at about the distance he stopped, anyway. He said it was possible, he would not be able to say. He thought the piece of flesh flapping from his leg was about a foot long.

    26-118 (Remainder of Plaintiff's case)
    119-228 (Defendant's case)


    229. For the above reasons, I am satisfied, and find, that, at the point of impact, the plaintiff's motorcycle was close to, but on its correct, or eastern, side of the centre lines of the roadway and that the defendant's truck was at that time partially on the incorrect side of the centre lines of the roadway for its direction of travel.

    230. Having so found, it does not follow that the defendant was entirely responsible for the accident and, indeed, I find that the plaintiff contributed to its occurrence. There is ample evidence that he was an experienced bike rider, that the crest and bend were dangerous to negotiate and that the plaintiff well knew that. By any measure, his approach to it was negligent in that, either through speed or carelessness, he failed to keep his motorcycle as close as possible to the left-hand kerb. Instead, he chose to negotiate the bend in a way which meant his motorcycle was very close to the centre lines of the roadway as he passed over and down the crest and turned left, in circumstances where, for most of that passage, he had no adequate view of oncoming traffic. Notwithstanding that the defendant was clearly infringing the law in crossing the centre lines, I am satisfied the plaintiff, well knowing the risks of that crest and bend, should have had some regard to the possibility that oncoming vehicles might, as it were, cut that corner or project in part over the centre lines. In positioning himself as he did, he courted that risk and it materialised.

    231. The defendant's manner of driving was, however, the substantial cause of the accident. He, too, knew the roadway and must have appreciated the high degree of risk he undertook in allowing his vehicle to cross the centre lines at that particular point.

    232. I find that the plaintiff contributed to his loss to the extent of 20 per cent. There will be judgment for the plaintiff for 80 per cent of his damages to be assessed.


    What OP states is the cause of the accident is not going to be relevant if Police form the view a fine should be issued. OP may consider himself fortunate not to have been fined because the option to is available.

    A few of many threads:

    [NSW] Booked for negligent driving

    [NSW] Negligent driving fine

    [NSW] Negligent driving my accident

    [NSW] Negligent driving penalty. Help!


    "obeying all laws" does not necessarily absolve a driver of all fault in what happened. It is possible to still be negligent even if you are driving under the speed limit.

    Regina v Smith [2006] VSCA.

    Whilst adherence to the road speed is relevant, it is by all means not definitive. There is far more factors which has to be taken into account.

    Read #12 again mate.

    Tasman only said "reasonable doubt". I put it to you there is no difference between 'reasonable doubt' and 'balance of probabilities'.

    If on the other hand Tasman had said "beyond reasonable doubt" as you have (incorrectly) responded with, there would be cause to respond.

    Tasman is 100% correct and given his career occupation, you may safely assume the forum member knows what he's talking about in this thread.