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

 

[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.

 

[Resound]

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.



--

 

[Zebee Johnstone]

In aus.bicycle on Thu, 10 Jun 2004 23:37:32 +1000
K.A. Moylan <[email protected]> wrote:
>
> 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 you'd need to see the whole judgement to be sure.

However... IT's a matter of expectations. Yes, a driver (and
passenger) should expect
a cyclist to nick up the inside, it's what cyclists do.

But a cyclist should take note of where the stoped car is, and what
might happen.

If, for example, the cars are stopped at lights on a normal subuerban
road (ie not near a shopping strip or other high ped traffic area),
then it isn't that likely a passenger will step out, but it is likely
a pushbike will be lanesplitting. A passenger has to realise that.

On the other hand, if the car is stopped outside a school at
start-of-school time, then there's a much higher chance that someone
will want to get out. The cyclist has to realise that.

So both were at fault, the cyclist because they should have realised
that kids (and therefore less experienced in the ways of traffic) get
out of stopped cars near schools, the passenger because lanesplitting is
what cyclists do, and getting out of a car that's not in a parking lane
but part of the traffic stream (even if it's not streaming right then)
should be done only after looking for bikes.

Zebee

--
Zebee Johnstone ([email protected]), proud holder of
aus.motorcycles Poser Permit #1.
"Motorcycles are like peanuts... who can stop at just one?"

 

[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.

 

[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

 

[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



--

 

[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]

K.A. Moylan wrote:
> 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/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]

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



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



--