Cyclist vs Motorist: Court find Both At Fault

[K.A. Moylan]

Summary of a court report that appeared in the Canberra
Times, 9/6/2004: A cyclist ran into a left hand passenger
door of a stationary car, as a 15 year old passenger was
getting out (at a high school). The cyclist sued the driver
(the only adult in the car) for about $60,000 damages. The
insurance company claimed the cyclist was at fault because
she 'should have been using the nearby footpath, rather
than a busy and dangerous suburban road.' [The report's
words, not mine.] The court (ACT Supreme Court) 'said that
if the cyclist was held to be partly to blame because of
this, all cyclists who used the road instead of the
footpath would be guilty of contributory negligence if
involved in an accident.' ... 'while the cyclist could have
used the footpath ... she was equally entitled to use the
road.' The cyclist's damages were halved because she was
'50 per cent to blame' ... 'for overtaking the car on the
left and, therefore, failing to take reasonable care for
her own safety.'

My comments: What cheek by the insurance company! I'm glad
the judge dismissed that nonsense. Imagine if cyclists *had*
to use footpaths.

Allocating half the blame on the cyclist for overtaking to
the left of a stationary car is a worry. Weren't we debating
recently about the legality of overtaking stationary cars on
the left? IIRC, the Australian road rules said it was legal
to do such a thing. (Correct me if I remember wrongly.) This
court ruling seems to make that new road rule somewhat
worthless.

What do you think?

--
K.A. Moylan Canberra, Australia Ski Club:
http://www.cccsc.asn.au kamoylan at ozemail dot
com dot au

 

[Resound]

Originally posted by K.A. Moylan
Summary of a court report that appeared in the Canberra
Times, 9/6/2004: A cyclist ran into a left hand passenger
door of a stationary car, as a 15 year old passenger was
getting out (at a high school). The cyclist sued the driver
(the only adult in the car) for about $60,000 damages. The
insurance company claimed the cyclist was at fault because
she 'should have been using the nearby footpath, rather
than a busy and dangerous suburban road.' [The report's
words, not mine.] The court (ACT Supreme Court) 'said that
if the cyclist was held to be partly to blame because of
this, all cyclists who used the road instead of the
footpath would be guilty of contributory negligence if
involved in an accident.' ... 'while the cyclist could have
used the footpath ... she was equally entitled to use the
road.' The cyclist's damages were halved because she was
'50 per cent to blame' ... 'for overtaking the car on the
left and, therefore, failing to take reasonable care for
her own safety.'

My comments: What cheek by the insurance company! I'm glad
the judge dismissed that nonsense. Imagine if cyclists *had*
to use footpaths.

Allocating half the blame on the cyclist for overtaking to
the left of a stationary car is a worry. Weren't we debating
recently about the legality of overtaking stationary cars on
the left? IIRC, the Australian road rules said it was legal
to do such a thing. (Correct me if I remember wrongly.) This
court ruling seems to make that new road rule somewhat
worthless.

What do you think?

--
K.A. Moylan Canberra, Australia Ski Club:
http://www.cccsc.asn.au kamoylan at ozemail dot
com dot au

Hmm. Suggesting that cyclists use the footpath is ludicrous, especially past a school when it's obviously the time of day when there are going to be a large number of children using the footpath. Having said that, to run into an opening door on the LEFT suggests that they were passing between a stationary car and a footpath. Outside a school. While kids were being dropped off. That's pretty dumb, and I'd call that negligent. In the face of all that, I'd say 50/50 is fair, if not generous to the cyclist. Now if they'd been doored on the RIGHT hand side, then that's something completely different.

 

[Unkey Munkey]

K.A. Moylan wrote: *snip*
> My comments: What cheek by the insurance company! I'm glad
> the judge dismissed that nonsense. Imagine if cyclists
> *had* to use footpaths.
>
> Allocating half the blame on the cyclist for overtaking to
> the left of a stationary car is a worry. Weren't we
> debating recently about the legality of overtaking
> stationary cars on the left? IIRC, the Australian road
> rules said it was legal to do such a thing. (Correct me if
> I remember wrongly.) This court ruling seems to make that
> new road rule somewhat worthless.
>
> What do you think?
>

I think overtaking a stationary car on the left is extremely
hazardous, and yes, the cyclist is partly to blame. but
then, I'm not sure of the full circumstances (ie. did the
passenger open the door as soon as the car stopped etc).
Anyway .. I thought it was illegal to ride on the footpath -
I know I've been fined twice for doing it.

 

[Peter Cremasco]

On Thu, 10 Jun 2004 23:37:32 +1000, "K.A. Moylan"
<[email protected]> wrote:

[snip]
>The cyclist's damages were halved because she was '50 per
>cent to blame' ... 'for overtaking the car on the left
>and, therefore, failing to take reasonable care for her
>own safety.'
>
>My comments: What cheek by the insurance company! I'm glad
>the judge dismissed that nonsense. Imagine if cyclists
>*had* to use footpaths.
>
>Allocating half the blame on the cyclist for overtaking to
>the left of a stationary car is a worry. Weren't we
>debating recently about the legality of overtaking
>stationary cars on the left? IIRC, the Australian

When someone sues someone else, it is a CIVIL action rather
than a criminal prosecution. As such, the road rules do not
hold complete sway over the debate.

As an example: you are going through an intersection, with a
green light. Halfway over, you are T-boned by someone coming
through their red light.

LEGALLY, the other person is wrong and will lose money and
points. You probably won't. In a CIVIL action seeking
damages, you will be apportioned SOME of the blame for not
ensuring that it was indeed safe to inter that intersection
at the time. IE: by virtue of BEING there, you automatically
assume SOME of the responsibility and hence blame.

At least that is my interpretation of how it all works.

---
Cheers

PeterC

[Rushing headlong: out of control - and there ain't no
stopping]
[and there's nothing you can do about it at all]

 

[Ray Peace]

Greetings, Complete ********. I had the same response from
the moron involved in my last bingle. `Were you riding on
the footpath?' On a racing tandem doing 32 k/mh when she
cleaned us up in the middle of the road? Get real. As
noted previously, I still exercise my legal and moral
right to use the roads as a legally defined road vehicle
under the traffic laws, and I'm bloody well staying there.
Regards, Ray.

K.A. Moylan wrote:

>Summary of a court report that appeared in the Canberra
>Times, 9/6/2004: A cyclist ran into a left hand passenger
>door of a stationary car, as a 15 year old passenger was
>getting out (at a high school). The cyclist sued the driver
>(the only adult in the car) for about $60,000 damages. The
>insurance company claimed the cyclist was at fault because
>she 'should have been using the nearby footpath, rather
>than a busy and dangerous suburban road.' [The report's
>words, not mine.] The court (ACT Supreme Court) 'said that
>if the cyclist was held to be partly to blame because of
>this, all cyclists who used the road instead of the
>footpath would be guilty of contributory negligence if
>involved in an accident.' ... 'while the cyclist could have
>used the footpath ... she was equally entitled to use the
>road.' The cyclist's damages were halved because she was
>'50 per cent to blame' .... 'for overtaking the car on the
>left and, therefore, failing to take reasonable care for
>her own safety.'
>
>My comments: What cheek by the insurance company! I'm glad
>the judge dismissed that nonsense. Imagine if cyclists
>*had* to use footpaths.
>
>Allocating half the blame on the cyclist for overtaking to
>the left of a stationary car is a worry. Weren't we
>debating recently about the legality of overtaking
>stationary cars on the left? IIRC, the Australian road
>rules said it was legal to do such a thing. (Correct me if
>I remember wrongly.) This court ruling seems to make that
>new road rule somewhat worthless.
>
>What do you think?

 

[Rickster]

Unkey Munkey <[email protected]> wrote in message news:<[email protected]>...
> K.A. Moylan wrote: *snip*
> > My comments: What cheek by the insurance company! I'm
> > glad the judge dismissed that nonsense. Imagine if
> > cyclists *had* to use footpaths.
> >
> > Allocating half the blame on the cyclist for overtaking
> > to the left of a stationary car is a worry. Weren't we
> > debating recently about the legality of overtaking
> > stationary cars on the left? IIRC, the Australian road
> > rules said it was legal to do such a thing. (Correct me
> > if I remember wrongly.) This court ruling seems to make
> > that new road rule somewhat worthless.
> >
> > What do you think?
> >
>
> I think overtaking a stationary car on the left is
> extremely hazardous, and yes, the cyclist is partly to
> blame. but then, I'm not sure of the full circumstances
> (ie. did the passenger open the door as soon as the car
> stopped etc).

As you said, you don't know the full circumstances, so HTF
can you say "the cyclist is partly to blame". I pass about
1000 stationary cars on the left every day, every time they
are not moving in peak hour traffic. The only time, by law,
you can't pass on the left is when the car has an indicator
to turn left on.

If a door flies open, the passenger is 100% at fault as they
must ensure safe disembarkment from the vehicle. I know,
'cos I've had them charged and pay for repairs.

> Anyway .. I thought it was illegal to ride on the footpath
> - I know I've been fined twice for doing it.

 

[flyingdutch]

My understanding was that you can pass on the left
(otherwise we'd be as banked up as the rest of the traffic!)
UNLESS the car is indicating to turn left or obviously parked.

If there is an obvious gap (ie not parked) it would seem absurd that you cant pass

This is a real issue on my commute when I go the mainly road way as I pass many tram stops and people quickly jump out of cars to catch the tram and do it at a whim rather than a parked/planned transfer

 

[Rickster]

Resound <[email protected]> wrote in message news:<[email protected]>...
> K.A. Moylan wrote:
> > Summary of a court report that appeared in the
> > Canberra Times, 9/6/2004: A cyclist ran into a left
> > hand passenger door of a stationary car, as a 15 year
> > old passenger was getting out (at a high school). The
> > cyclist sued the driver (the only adult in the car)
> > for about $60,000 damages. The insurance company
> > claimed the cyclist was at fault because she 'should
> > have been using the nearby footpath, rather than a
> > busy and dangerous suburban road.' [The report's
> > words, not mine.] The court (ACT Supreme Court) 'said
> > that if the cyclist was held to be partly to blame
> > because of this, all cyclists who used the road
> > instead of the footpath would be guilty of
> > contributory negligence if involved in an accident.'
> > ... 'while the cyclist could have used the footpath
> > ... she was equally entitled to use the road.' The
> > cyclist's damages were halved because she was '50 per
> > cent to blame' ... 'for overtaking the car on the left
> > and, therefore, failing to take reasonable care for
> > her own safety.' My comments: What cheek by the
> > insurance company! I'm glad the judge dismissed that
> > nonsense. Imagine if cyclists *had* to use footpaths.
> > Allocating half the blame on the cyclist for
> > overtaking to the left of a stationary car is a worry.
> > Weren't we debating recently about the legality of
> > overtaking stationary cars on the left? IIRC, the
> > Australian road rules said it was legal to do such a
> > thing. (Correct me if I remember wrongly.) This court
> > ruling seems to make that new road rule somewhat
> > worthless. What do you think?
> > --
> > K.A. Moylan Canberra, Australia Ski Club:
> > http://www.cccsc.asn.au/http://www.cccsc.asn.au
> > kamoylan at ozemail dot com dot au
>
>
>
> Hmm. Suggesting that cyclists use the footpath is
> ludicrous, especially past a school when it's obviously
> the time of day when there are going to be a large number
> of children using the footpath. Having said that, to run
> into an opening door on the LEFT suggests that they were
> passing between a stationary car and a footpath. Outside a
> school. While kids were being dropped off. That's pretty
> dumb, and I'd call that negligent. In the face of all
> that, I'd say 50/50 is fair, if not generous to the
> cyclist. Now if they'd been doored on the RIGHT hand side,
> then that's something completely different.
>

******** it's completely different. A person in a car must
ensure safe disembarkment, does not matter which side they
are getting out of.

If there was room to pass on the left then the car could
have been illegaly parked, i.e too far from the curb. Unless
the cyclist was foolish enough to attempt to ride through a
10 cm gap. Which one was it ? We should all hold judgement
until we know the full facts. Is

 

[Allan]

>>Anyway .. I thought it was illegal to ride on the footpath
>>- I know I've been fined twice for doing it.

Not in the ACT

 

[Unkey Munkey]

rickster wrote: *snip*
> As you said, you don't know the full circumstances, so HTF

why the bad language?

can you say
> "the cyclist is partly to blame". I pass about 1000
> stationary cars on the left every day, every time they are
> not moving in peak hour traffic. The only time, by law,
> you can't pass on the left is when the car has an
> indicator to turn left on.

I didn't say it was illegal, just hazardous, and therefore
the cyclist has a responsibility to themself to keep a
lookout ie. not ride faster than you can stop.

>
> If a door flies open, the passenger is 100% at fault as
> they must ensure safe disembarkment from the vehicle. I
> know, 'cos I've had them charged and pay for repairs.
>

As you said Rickster, we don't know the full circumstances,
so why are you assuming the door flew open? As the ads say,
"the road is there to share", and whilst you may have
certain legal rights regarding overtaking cars on the left,
it doesn't absolve you from taking precautions.

- UM

 

[K.A. Moylan]

In article <>, [email protected] (rickster) wrote:

> Resound <> wrote in message
> > K.A. Moylan wrote:
> > > Summary of a court report that appeared in the
> > > Canberra Times,
> > > 9/6/2004: A cyclist ran into a left hand passenger
> > > door of a stationary car, as a 15 year old
> > > passenger was getting out (at a high school).
> > > The cyclist sued ... for about $60,000 damages.
> > > The court (ACT Supreme Court) ... The cyclist's
> > > damages were halved because she was '50 per cent
> > > to blame' ... 'for overtaking the car on the
> > > left and, therefore, failing to take reasonable
> > > care for her own safety.' My comments: ...
> > > Allocating half the blame on the cyclist for
> > > overtaking to the left of a stationary car is a
> > > worry. Weren't we debating recently about the
> > > legality of overtaking stationary cars on the
> > > left? ...
> > > --
> > > K.A. Moylan
> >
> > ... Having said that, to run into an opening door on the
> > LEFT suggests that they were passing between a
> > stationary car and a footpath. Outside a school. While
> > kids were being dropped off. That's pretty dumb, and I'd
> > call that negligent. In the face of all that, I'd say
> > 50/50 is fair, if not generous to the cyclist. Now if
> > they'd been doored on the RIGHT hand side, then that's
> > something completely different.
> >
>
> ******** it's completely different. A person in a car must
> ensure safe disembarkment, does not matter which side they
> are getting out of.
>
> If there was room to pass on the left then the car could
> have been illegaly parked, i.e too far from the curb.
> Unless the cyclist was foolish enough to attempt to ride
> through a 10 cm gap. Which one was it ? We should all hold
> judgement until we know the full facts.

One part of the report had I left out (for brevity): 'The
cyclist's version was that the car pulled up in a line of
traffic at a traffic light, 1.5m or more from the kerb, and
the door suddenly opened as she was passing. the driver said
she had pulled over to the left, after using her indicator
and checking her mirrors. She said she pulled up 30-40cm
from the kerb.' ... [The judge] 'accepted that all involved
were truthful witnesses, but did not accept their estimates
of the distance between the car and kerb. He thought 80cm
was more probable.'

More of my comments: 30-40cm from the kerb! It's a pretty
desperate or skilled cyclist who can ride that gap. My
shoulders are almost 60cm wide, so I'd be scraping something
if I tried that trick.
1.5m is pretty far from the kerb - almost the normal width I
like around my self when riding on the roads (2m space
feels good for me). The judge might be right with his
estimate of 80cm. I wonder if the court visited the site
to see for themselves?
---

--
K.A. Moylan Canberra, Australia Ski Club:
http://www.cccsc.asn.au kamoylan at ozemail dot
com dot au

 

[Peter Signorini]

"K.A. Moylan" <[email protected]> wrote in message
news:[email protected]...

> One part of the report had I left out (for brevity): 'The
> cyclist's version was that the car pulled up in a line of
> traffic at a traffic light, 1.5m or more from the kerb,
> and the door suddenly opened as she was passing. the
> driver said she had pulled over to the left, after using
> her indicator and checking her mirrors. She said she
> pulled up 30-40cm from the kerb.' ... [The judge]
> 'accepted that all involved were truthful witnesses, but
> did not accept their estimates of the distance between the
> car and kerb. He thought 80cm was more probable.'

In that case the finding should have clearly been in the
cyclist's favour. In order to set down passengers you are
required to park the car as close as possible to the kerb.
Try parking your car 80cms from the kerb in the city and
leave it to do your shopping. You'll come back to find a
nice ticket on
it.

From Victorian Road Rules Part 12
http://www.vicroads.vic.gov.au/vrpdf/randl/part_12.pdf

"the driver must position the vehicle parallel and as near
as practical, to the far left or far right side of the
road..." and "The driver must position the vehicle so that
the vehicle does not unreasonably obstruct the path of other
vehicles or pedestrians"

This driver loses on both counts! Well away from the left
side of the road and obstructing the cyclist (with her
door) and probably other motor vehicles on the roadway.
Meanwhile the cyclist was taking a quite reasonable action
in passing to the left of a car stopped in traffic with an
80cm (close to a metre) gap between car and kerb. I
wouldn't ride it too quickly, but 15 kmh would be quite OK.
Experienced cyclists will watch out for doors, but not
everyone has that experience. That's why there is a
requirenment for the driver to PARK the car. The judgement
of this civil case shows up that the judge has probably no
experience of city cycling.

Cheers Peter

>
> More of my comments: 30-40cm from the kerb! It's a pretty
> desperate or skilled cyclist who can ride that gap. My
> shoulders are almost 60cm wide, so I'd be scraping
> something if I tried that trick.
> 1.5m is pretty far from the kerb - almost the normal width
> I like around my self when riding on the roads (2m space
> feels good for me). The judge might be right with his
> estimate of 80cm. I wonder if the court visited the site
> to see for themselves?
> ---
>
> --
> K.A. Moylan Canberra, Australia Ski Club:
> http://www.cccsc.asn.au kamoylan at ozemail dot com
> dot au

 

[Resound]

Originally posted by K.A. Moylan
In article <>, [email protected] (rickster) wrote:

> Resound <> wrote in message
> > K.A. Moylan wrote:
<snip>

One part of the report had I left out (for brevity): 'The
cyclist's version was that the car pulled up in a line of
traffic at a traffic light, 1.5m or more from the kerb, and
the door suddenly opened as she was passing. the driver said
she had pulled over to the left, after using her indicator
and checking her mirrors. She said she pulled up 30-40cm
from the kerb.' ... [The judge] 'accepted that all involved
were truthful witnesses, but did not accept their estimates
of the distance between the car and kerb. He thought 80cm
was more probable.'

More of my comments: 30-40cm from the kerb! It's a pretty
desperate or skilled cyclist who can ride that gap. My
shoulders are almost 60cm wide, so I'd be scraping something
if I tried that trick.
1.5m is pretty far from the kerb - almost the normal width I
like around my self when riding on the roads (2m space
feels good for me). The judge might be right with his
estimate of 80cm. I wonder if the court visited the site
to see for themselves?
---

--
K.A. Moylan Canberra, Australia Ski Club:
http://www.cccsc.asn.au kamoylan at ozemail dot
com dot au

This is the tricky part, and I must admit that I assumed that someone dropping their kids off at school would do so quite close to the footpath. If it was a narrow gap, then the cyclist shouldn't have gone by on the left, as it would most likely have been pretty obvious that kids were being dropped off in the area. If, on the other hand, the car was 1½ metres, or so from the gutter, then the person opening the door is at fault for not looking (or their legal guardian in the case of a minor). Again, with an 80cm gap, I'd be inclined to split blame to some extent (depends on the speed the cyclist was riding at, how quickly and carelessly the door was opened, the phase of the moon, bubblegum prices in Algeria, etc). Personally, I wouldn't shoot an 80cm gap in a schoolzone at that time of day for that very reason. Not on the left, anyway (driver's side is another matter). Granted, the passenger of the car should have checked, but who expects someone to come howling in between a car and the footpath? This, I think, falls under the heading of Things that have No Clear Cut Answer. Similarly, this response is largely off the top of my head, and I'm prepared to be shown the error of my thinking. Just remember that while we have a perfect right to use the road and be treated as equals and with courtesy, doesn't mean that we're always in the right. I'm just glad I'm not a judge...damn hard job if you're doing it right.

 

[Ian Wright]

Originally posted by K.A. Moylan
Summary of a court report that appeared in the Canberra
Times, 9/6/2004: A cyclist ran into a left hand passenger
door of a stationary car, as a 15 year old passenger was
getting out (at a high school). The cyclist sued the driver
(the only adult in the car) for about $60,000 damages. The
insurance company claimed the cyclist was at fault because
she 'should have been using the nearby footpath, rather
than a busy and dangerous suburban road.' [The report's
words, not mine.] The court (ACT Supreme Court) 'said that
if the cyclist was held to be partly to blame because of
this, all cyclists who used the road instead of the
footpath would be guilty of contributory negligence if
involved in an accident.' ... 'while the cyclist could have
used the footpath ... she was equally entitled to use the
road.' The cyclist's damages were halved because she was
'50 per cent to blame' ... 'for overtaking the car on the
left and, therefore, failing to take reasonable care for
her own safety.'

My comments: What cheek by the insurance company! I'm glad
the judge dismissed that nonsense. Imagine if cyclists *had*
to use footpaths.

Allocating half the blame on the cyclist for overtaking to
the left of a stationary car is a worry. Weren't we debating
recently about the legality of overtaking stationary cars on
the left? IIRC, the Australian road rules said it was legal
to do such a thing. (Correct me if I remember wrongly.) This
court ruling seems to make that new road rule somewhat
worthless.

What do you think?

--
K.A. Moylan Canberra, Australia Ski Club:
http://www.cccsc.asn.au kamoylan at ozemail dot
com dot au

By the sound of this I suspect the vehicle was stationary sort of parked probably near a school to. So the cyclist appeared to show a complete lack of any ability in indentifying a hazard from the description of what she did.

The relevant sections of the Australian Road Rules Act in this matter are:


"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.
Offence provision.

Note Bicycle, centre of the road, marked lane, multi-lane road, overtake, right change of direction signal and U–turn are defined in the dictionary.

(2) The rider of a bicycle must not ride past, or overtake, to the left
of a vehicle that is turning left and is giving a left change of
direction signal.
Offence provision.

140 No overtaking unless safe to do so
A driver must not overtake a vehicle unless:
(a) the driver has a clear view of any approaching traffic; and
(b) the driver can safely overtake the vehicle.
Offence provision."

Looks like a bicycle can pass on the left as in the above senario but at their own peril (see section 140). Looks like the judge brought section 140 into play, in particular 140(b), hence apportionment.

Tend to agree with the judiciary on this.

Cheers,
Ian