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[QLD] Had an accident, who's at fault?

Discussion in 'Politics, Laws, Government & Insurance' at netrider.net.au started by Potato, Nov 13, 2008.

  1. Hi all,



    A few days ago I had a nasty accident where I T-boned into a ute. The bike was totaled & towed and the ute was hit pretty badly too. Now I don't remember much about the accident as my memory is pretty blank. But from what I've gathered from the driver and other witnesses this is what I've pieced together.

    I was going straight through a T junction in a double lane road, there was a huge traffic jam and all the cars were stationary. I dodged left and went straight and hit the ute cutting in front of me while making a right turn into the side street (street on my left) from the opposing traffic. There were no traffic lights at the intersection.

    From what I've gathered in this forum filtering is somewhat legal in QLD but I understand that its a very shady area. The worst thing is that I don't have 3rd party insurance so this probably won't turn out good for me either way. Haven't reported to the cops yet and still waiting for the other party to call me.

    I know that I'm responsible for filtering but the towing guys tell me that the ute shouldn't have made that turn. So who is at fault here and what are my options? This is the first time I've had something like this happen and I'm completely lost. Help is greatly appreciated. Thanks.
     
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  2. i dont know the legalities regarding filtering in QLD, you need to go to your local copshop or speak to a lawyer about that.

    assume u were in the right hand lane, with traffic banked up in the left, and the guy is turning out from his side street. even if the cars in the left lane made a gap and waved him through, he DOES NOT have right of way, and is not allowed to pass unless its safe. with you still travelling up the right lane, its NOT safe, obviously. in these circumstances, he is at fault. the fact that you are filtering, i do not know how this will change your situation.

    dont ask us to guess, coz we will jsut guess. go see a traffic police officer, or a traffic lawyer. the $100 u spend on a lawyer may jsut save you a few $1000+ in damages.....
     
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  3. I would think the first thing to do is contact either a solicitor or RACQ legal service (if you are with them).
    Secondly, forget about the filtering side of things at this time. A vehicle has turned right in front of you (not giving way) and caused this accident. This means the vehicle would be legally responsible for the accident. Cops should have been called at the time of accident.
    I don't think your filtering would be of major concern, possibly a drop in value of insurance costs. But think of it this way: what if it was a person on a pushbike riding along and got hit by the same car.
     
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  4. If you were filtering at the time of the smash, the car you were passing would have hit him too.

    Don't mention it..........

    Get legal advice now...the cops should have been called at the time.

    do you have any names and addresses of people for witnesses?
    give these to your lawyer.

    If the ute turned and you t-boned him, with good legal rep. it'll be his fault.

    (insert usual disclaimer here)
     
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  5. Hi all,

    Just posting an update on the situation and it's not looking good... :(

    The other party's insurance company contacted me last week and told me I'm at fault and they've already repaired their ute which cost $5000.

    They've asked me to write down and draw a diagram of the accident which I have done and I just called them up. They told me that they have 1 independent witness who saw me filtering and making my own lane. The tow truck driver who took care of my bike was taking my side but he is not a valid witness as he did not actually see the accident.

    It would appear that the deal is sealed and there's no way out for me...Is there anything else I can do? The thought of losing my bike and forking over 5k is really stressing me out...But i guess it's a lesson well learnt, the importance of insurance and protective gear cannot be overstated. And filtering is evil...

    Thank you guys for your support and I'm still open to suggestions if there are any left.
     
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  6. Contest it. The ute driver failed to give way IMO.

    As mentioned earlier by others, seek legal advice.
     
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  7. just coz an insurance company has gone balls in and done this quickly, it does not mean that the matter is over by a long shot. they are in the business of not giving out money, and by pulling a stunt like that, they probably have a pretty high sucess rate of people thinking that its sealed, giving up, and paying out, thus saving themselves money.

    get a lawyer!!!!!

    Lobby
     
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  8. for the 4th time today, im with stupid ^^^ :grin:
     
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  9. Insurance companies are bastards, dude.

    Even if the ute ran up the back of you, they'd be asking you to prove you had a working brake-light before it was all smashed up.


    Get legal advice.

    Even if it comes out less than favourably, counter offer to the insurance company. Say you only agree to pay for half of the repair due to "Contributory negligence from the driver of the utility" etc.

    If they reject that and it comes to court, you say "Fine. I'll pay... in $10 per week installments for as long as it takes to clear the debt. I can't afford to pay more or sooner than that."

    They'll tell you to borrow the money and all this kind of crap, but you just say "No. I've told you I'll pay, and the circumstances under which I can pay. That is what will happen."

    They'll periodically send you letters saying "Oh, you can settle the matter up completely if you pay $xxxx right now."
    Those numbers will get smaller and smaller each letter :)

    Best of luck!
    Stick to your guns! Don't make the mistake of thinking a farking insurance company is the law or anything. They're just a business trying to shaft you.
     
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  10. I would say that the driver of the ute is at fault for failing to give way to oncoming traffic. The fall-back position is as above, but with contributory negligence from yourself for overtaking on the left. See a traffic lawyer, you have too much money at stake to do otherwise.

    +1.

    Potato, I had a friend who was traffic filtering in Melbourne between two lanes when a cager entered from a side road and collided with him. The driver of the cage claimed he was not at fault, because the cars were stationary. My friend wrote a 3 page submission to the insurance company outlining the situation, and all the relevant law, couching it in terms of a failure to give way, regardless of that fact he was traffic filtering. The insurance company yielded and has agreed to pay for the repairs to the motorcycle (looks like a write-off), replace the damaged gear and reimburse the towing expenses.

    Don't back down mate. The truth of the matter is, this will probably be the first of multiple traffic incidents you are a party to over your 30-50 years on the road. You need to learn how to fight these bastards.

    Alex
     
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  11. maybe I'm misreading this, but the ute was coming the other way and turned right, cutting in front of you yes? In any other circumstance I would agree he is 100% at fault but in this case if the traffic in your direction was stationary then someone (two people) must have made a space to let him through. From the ute's point of view he was performing a legitimate, safe manoevre, when you appeared from out of nowhere and ran into him.

    this is EXACTLY why splitting is considered dangerous and has been made illegal.

    and this is ALSO exactly why, when we do choose to split we must have 110% situational awareness.

    If I've misread your description, then I apologise and side with the others. deny everything and countersue his arse off
     
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  12. I agree that people need to take personal responsibility when lane splitting, but legal responsibility is different. The cager's manoeuvre was obviously not safe and legitimate if a collision occurred. It is insufficient to say SMIDSY (sorry mate I didn't see you) when cars or other objects were obstructing your view, because the law says you must give way to oncoming traffic, period.

    Road Rules (Victoria) s73(6): "If the driver is turning right from the continuing road into the terminating road, the driver must give way to (a) any oncoming vehicle that is travelling through the intersection on the continuing road."

    Note there is no "if subjectively determined as safe to do so" proviso.

    If our motorcyclist friend was overtaking on the left, or travelling at a speed inappropriate or unsafe for the circumstances, this may mitigate the cager's liability, but it won't negate the cager's liability. Prima facie, the cager failed to give way and is at fault.

    The sad fact of the matter is that cagers simply don't bother looking for motorbikes. You don't need to be riding on the road long to know this fundamental truth from experience.
     
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  14. The ute has failed to give way at a T intersection. I think his insurance company is taking advantage of you not having any insurance. Also, if the damage to the ute is $5000, it would have HAD TO BE REPORTED TO POLICE.

    You have to call the Police and report the accident if damage exceeds $2500. They may not attend the scene, but will take a statement. Then the decision as to who is at fault is up to the Police.

    Lane Splitting is a bit of a strange one up here, as it is up to the Police Officer who catches you to decide what you were doing - were you riding on the shoulder, overtaking on the left, not riding in a designated lane? There are many interpretations of the "No Lane Splitting/Filtering" rule.

    Call RACQ legal advisory on 3845 4102 and ask what can be done.

    And join www.qmrf.com for some local riders who may just be able to give you better advice than I have.
     
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  15. As has been said we don't have a no splitting / filtering law, in fact if you split through stationary traffic ie. through the cars can be concidered perfectly legal, your aloud to pass traffic in the same lane if they are stationary (check out the qld lane splitting topic thats stickied up the top), Personally I would fight this as i see it you were doing nothing illegal and the ute driver was, In fact i would counter issue the insurance agency for more money then there asking for, with a strongly worded letter stating all the relevent legislation, which would back you up (leave out the stuff that would stuff you up) If your lucky often they will just say that you pay for your damage and that they will pay for their damage, or maybe even pay for your damage. If all else fails do what Ktulu said tell them that in your current financial situation that you can only pay $10 a fortnight ($260 a year) for whatever length of time, and they will keep revising the total until its almost nothing ( I did this with a rearender and got $3800 down to abit over $1000 all paid (took about 3years for this all told)
     
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  16. Hi guys,

    I went to 2 cop stations today and asked about all this stuff. Both officers told me that it is the insurance company that decides who's at fault. The police only takes care of offenses and my situation is venturing into civil law territory. They said that once the case has been handed to the insurance companies it is all up to them to decide who to screw over. It appears that the next level up would be courtroom which is going to get expensive.

    The officers were not aware of the lane splitting laws until i showed them the stickied legislation which stated the following:

    141 No overtaking etc. to the left of a vehicle
    (1) A driver (except the rider of a bicycle) must not overtake a
    vehicle to the left of the vehicle unless—
    (a) the driver is driving on a multi-lane road and the vehicle
    can be safely overtaken in a marked lane to the left of
    the vehicle; or
    (b) the vehicle is turning right, or making a U–turn from the
    centre of the road, and is giving a right change of
    direction signal; or
    (c) the vehicle is stationary and can be safely overtaken to
    the left of the vehicle.
    Maximum penalty—20 penalty units.

    He read it and told me that it's not solid enough for me to stand on as the word "safely" can mean a lot of different things.

    I also went to talk to my Qride instructor, he said I'm at fault, period. And that any solicitor will hang me out to dry.

    The police also told me that the insurance company is supposed to work out some kind of "at fault percentage" to decide how to divide the money. So something like I'm 30% at fault and he is 70% at fault and charge me based on that. However right now it would seem that they're pinning the 100% on me and wanting the full 5k for their ute.

    Many of you have suggested me to seek legal advice which I have been considering. However I talked to my old man about it and he reckons that, since we now have a fairly good understanding of the procedures, there's not much point talking to a lawyer as I would just be told the same thing for $250 or so. The lawyers are not responsible for passing the final judgment on who is at fault, and since we know we're not on solid ground here it's unwise to risk losing more money over a fight that may turn out less than favorable.

    I sort of see his point but I can see it's a pretty biased opinion because dad just hates lawyers and cops in general. :?

    So my only option left is to beg sympathy and convince the insurance company to soften the blow? Even after I told them about that legislation they still state that I made my own lane which makes me completely at fault. Am I at the end of the line here or is there another way out which I'm not aware of? With the way things are looking right now I would probably be pretty happy with a settlement where both parties pay their own bills and just move on...

    On a side note, I had another accident 4 days after in a car :( . I was in bed for a few days and after my injuries recovered a fair bit I decided to take the car out for a drive and get back on the road. A guy next to me on the freeway suddenly decides to change lanes without looking and squashed me onto the side barriers. Luckily that one was a no brainer and the guy was a polite gentleman who admitted that it was his fault entirely. It has not been a good week and I can't express enough how much I wanna get this over with.
     
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  17. you do have my sympathy, but I'm afraid I side with the ute on this one. Regardless of the legality of not of splitting your point c above is the telling one. Clearly it wasn't 'safe' to split in this instance.

    tbh if I was the one turning right and cars had stopped to let me through, and then someone splitting hit me, I'm afraid you'd have got off with a lot worse than a $5000 bill.

    the fact that you had an accident in the same week tells me that your situational awareness skills need developing.

    sorry mate, but take this one for the team and be more aware in the future
     
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  18. I just thought I would add my 2c worth here, but when it comes down to it, you will take the advice who you trust most, and I am guessing that will be your old man...

    The insurance company WILL do whatever they can to not pay a claim... from rushing it through repairs... to misrepresenting your options... to legal bullying... their word isn't to be taken at all...

    The cops don't care... they will see that filtering is a legal grey area, you are young and easily dissuaded... and they just don't want the work... if they had have fined someone at the scene, that is what the insurance companies would have used to decide fault... so saying that it is all up to the insurance company is BS... their word on this isn't gospel, but slightly more valid than the insurance company...

    A court would look at who was making the major change in direction, and that is who is at fault, in this case the ute... if the traffic left this guy a gap to go through, and he turned in front of you, he didn't make his turn with due care... a pushbike could have been going through that gap 100% legally and been hit...

    I would seek out a lawyer, most will do the first consultation free... then if they say you have a case, either pursue it with them or a 'no win no fee' lawyer...

    You won't get out of it free... it probably won't go to court either... your lawyer will end up settling with the insurance company at some fee... either in your favour, (i.e. you will get all or most of the money towards your repairs) or at worst no cost to you (IMHO)...

    $5,000 for his repairs, plus the repairs to your bike is too much to pay on the say so of an insurance company, some disinterested cop, the bunch of misfits on here, or even your old man...

    Better get a lawyer son...

    Then get Third Party Insurance as a minimum,

    Then learn your lesson well, and don't let another driver decide how much filtering will cost you...

    Cheers,
    Daewoo
     
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  19. Both officers misunderstood your situation.

    If you had full comp, you insurance co and the ute's insurance co would decide between themselves.

    Since you don't have an insurance co to represent your interests, it's up to you to work it out with the ute's insurance co.

    Insurance companies are interested in profits so it's not in their best interests to pay out if they think you won't argue with them. However, they are also very unlikely to go to court over a dispute if they think they're likely to lose.

    You need get quotes to replace any damaged gear and add this to the market value of your bike to determine the amount of your claim. Send a letter to the insurance company stating....
    1. that you dispute their position and claim that the collision occured due to the ute's failure to give way.
    2. that you demand payment of $****** in damages within ** days.

    Don't let them rattle you. Disbelieve threats of legal action unless it actually gets to the point where court becomes necessary (in which case you may choose to give in). They will prefer to settle with you before heading in that direction so persevere with it. At the worst, I think you can expect to pay for your bike and not worry about paying for damage to the ute. At best, they may send you a cheque to cover all of your costs.

    You have nothing to lose by sending the first letter and waiting for their reply. :)
     
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  20. Number 1: Splitting is NOT illegal per se.

    Number 2. The ute was NOT performing a legitimate safe procedure by the very fact that he hit you. No matter what the circumstances he was 100% in the wrong.

    If you had been on a bicycle there would of course been no doubt that he was in the wrong. Given that you were on something that is bigger, louder and more visible (I presume your light was on) and travelling at the same speed as a bicycle then he has no excuse whatsoever.

    Even if you were doing something illegal - and given the peculiarities of Qld Law you may well have been legal - that doesn't preclude him from being the cause of the crash.

    Get a lawyer - the insurance company is bluffing you. Try for your damage as well - you never know, you might get it. Worst case is that you each pay for your own damages.

    I was a witness to a similar crash a few years back where a motorcycle was hit - the motorcycle was in the bicycle lane and a car turned across in front of it. They both got charged - the rider was charged with riding in the bicycle lane (the cop was very apologetic about it) and the car driver was charged with a more serious offence - can't remember what but it was something about due care and attention. When he complained the cop's response was exactly what I said above - if you can't see a motorcycle then you'd never have seen a bicycle. They were both insured but the motorcyclist did not have to pay any excess. The mere fact that your manouvre was not legal does not stop him from having to exercise due care.


    Again - get a good legal opinion. Unless your old man has legal training - ignore him. The law society should be able to refer you to an appropriate specialist. If it costs you $500 - you're still way ahead if you don't have to pay his damages. The fact that you weren't charged will be a serious point in your favour.

    ps. The fact that the repairs were rushed through without giving you the opportunity to verify the costs or get a second opinion won't hurt your csae either if it does come to court. Get a description of the damage and get a quote from a couple of cheapie panel beaters. Preferably not one that his insurance company deals with.
     
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