Australian Cycling Forums - Bicycles Network Australia

Bit of an eye opener if you thought that injury in the case of driver negligence of road rules translates into harsher penalties. John Rainbow gets a traffic infringement (not even a criminal charge) and Andrew Dicks gets permanent brain damage with zero compensation.


John Rainbow, 41, of Croydon, pleaded guilty at Ringwood Magistrates' Court on Monday and was convicted of failing to give way at an intersection when turning right.

Andrew Dick, 49, was crossing Burwood Highway near his home in Vermont South to access a bike track at 6.50am on August 7 when he was struck by a silver Ford stationwagon driven by Rainbow.

Police who attended the scene said Mr Dick came off his bike and on to the car's windscreen, which caused it to crack.

Rainbow, who was not represented in court, received the maximum penalty possible from the magistrate.

Mr Dick, who spent five months in hospital, also suffered a collarbone fracture and sternal fracture, and couldn't move for a month.

He has slowly learned to walk and do things for himself again.

Law change urged after cyclist suffers brain injury in Vermont South incident

Simply put unless you are speeding or drunk then there are little penalties for driving incompetence. If you kill somebody then the penalties might be hirer, though if you maim somebody then who cares.

How much do we think the 5 month stay in hospital and life long rehab will cost the taxpayer? More than $400? Maybe if we invest the $400 into a managed fund the victim can live off the returns???

Attitudes to driving need to change.

JM

What we need to do is give the driver a bike and . . .

cheers
Glenn

From the article:

Glen Waverley Acting Sergeant Ryan Burns, who attended the accident, said police decided to pursue the matter in court, rather than giving Rainbow an on-the-spot fine, because of Mr Dick's serious injuries.

The article does not mention why he wasn't charged with dangerous driving. I gather this occurred in Victoria, so I gather the relevant law is s64(1) of the Road Safety Act 1986(Vic):

64. Dangerous driving

(1) A person must not drive a motor vehicle at a speed or in a manner which is
dangerous to the public, having regard to all the circumstances of the case.

Seems arguable to me, so why didn't they go with that? Disclaimer: I know nothing about Victorian traffic law, so there may be some compelling reason. The article sure doesn't mention one...

high_tea wrote:Seems arguable to me, so why didn't they go with that? Disclaimer: I know nothing about Victorian traffic law, so there may be some compelling reason. The article sure doesn't mention one...

Because the police don't care. There is a notion that driving accidents are normal and it is the cyclists fault they are not protected. It sadly is quite true that if there isn't speed or alcohol involved then it isn't considered a serious offence.

Cheesewheel wrote:Bit of an eye opener if you thought that injury in the case of driver negligence of road rules translates into harsher penalties. John Rainbow gets a traffic infringement (not even a criminal charge) and Andrew Dicks gets permanent brain damage with zero compensation.

That is not strictly true. Thus far his medical bills will have been covered by the TAC and when its clear what his permanent injuries are, he will be able to make a claim for that, or raise a lawsuit to get it.

I've said before that I believe that after the compensation and medical bills are sorted (so that victims are covered), the insurance system should seek to recover (capped) amounts from at fault drivers. That would reduce premiums for drivers that do not cause accidents, and act as a far more genuine deterrent for those that do. The full 100% indemnity system absolutely encourages complancency regarding accident risk.

I live right next to the intersection and bike path crossing involved. I have decided that I will no longer use the bike crossing there but rather stick to the road, where the buggers are going to be more likely to notice me.

high_tea wrote:

64. Dangerous driving

(1) A person must not drive a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case.

Seems arguable to me, so why didn't they go with that? Disclaimer: I know nothing about Victorian traffic law, so there may be some compelling reason. The article sure doesn't mention one...

i would guess - it's harder work for the prosecutor to prove. offences with higher penalties, such as dangerous driving compared with failing to yield, have higher burdens of proof. to me, the act of not bothering to look before turning right across other road users is appallingly dangerous.

in victoria, i think there are 3 general duties offences - careless, dangerous and culpable driving - in order of increasing seriousness. at a minimum, i would have thought the driver could be pinged for careless driving.

the other problem is that, and this is personal opinion, police often gravitate towards clear-cut rules and interpretations, and are uncomfortable with more 'abstract' offences like those mentioned above. in other words - turning right across someone is failure to yield - job done. "we don't set the penalties, don't complain to us if you think they're too lenient".

If the victim had been a child pedestrian in a school zone the police probably would have done more. However there is genuine discrimination against cyclists by the police.


When it comes to burdens of proof it is unarguable that this driver was driving carelessly, dangerously and is culpably for the accident.

human909 wrote:When it comes to burdens of proof it is unarguable that this driver was driving carelessly, dangerously and is culpably for the accident.

culpable driving requires proof of intent. but certainly careless driving would seem to be more practicably demonstrated with these cases.

Culpable driving requires a dead body

the other thing is that there is almost no consideration of the severity of outcome, i.e. to vulnerable road users. the infringement for failing to yield while turning right across another road user is based on the most common outcome, i.e. a few dents in a car's bodywork. the risk of placing yourself in a vulnerable situation (riding a bike in traffic) is borne solely by the rider - there is no attempt or intent to try and make other road users any more responsible for protecting them, than the trivial infringement penalties on offer for hitting another car.

Another case in point to push harder for vulnerable road users legislation.

I don't think $400 is right - but what would be? Sticking this guy in jail?


this driver may be remorsely sorry and might have never driven a car again for all we know. he may be deeply affected and in all honesly might' not've "seen him". what is adequate??? I don't know. Is it now up to the injured party to sue him civilly or something for compensation?

cp123 wrote:I don't think $400 is right - but what would be? Sticking this guy in jail?


this driver may be remorsely sorry and might have never driven a car again for all we know. he may be deeply affected and in all honesly might' not've "seen him". what is adequate??? I don't know. Is it now up to the injured party to sue him civilly or something for compensation?

all these probabilities could surround anything up to a manslaughter charge and we could probably go on a tangent of what constitutes an effective justice system yada yada.

I think the main point is, given the current standard of justice proceedings (IOW what an individual is liable to face on account of grievously causing harm as a consequence of their fault) , a mere traffic infringement (not even a criminal charge) doesn't cut the mustard.

Cheesewheel wrote:

cp123 wrote:I don't think $400 is right - but what would be? Sticking this guy in jail?


this driver may be remorsely sorry and might have never driven a car again for all we know. he may be deeply affected and in all honesly might' not've "seen him". what is adequate??? I don't know. Is it now up to the injured party to sue him civilly or something for compensation?

all these probabilities could surround anything up to a manslaughter charge and we could probably go on a tangent of what constitutes an effective justice system yada yada.

I think the main point is, given the current standard of justice proceedings (IOW what an individual is liable to face on account of grievously causing harm as a consequence of their fault) , a mere traffic infringement (not even a criminal charge) doesn't cut the mustard.

Small correction - the driver was charged with a criminal offence, just a really minor one. Also, it's not that he couldn't have been charged with something more serious, but that he wasn't.

PS my suggestion for law reform is to make causing bodily harm a circumstance of aggravation to breaches of the Road Rules.

high_tea wrote:

Cheesewheel wrote:

cp123 wrote:I don't think $400 is right - but what would be? Sticking this guy in jail?


this driver may be remorsely sorry and might have never driven a car again for all we know. he may be deeply affected and in all honesly might' not've "seen him". what is adequate??? I don't know. Is it now up to the injured party to sue him civilly or something for compensation?

all these probabilities could surround anything up to a manslaughter charge and we could probably go on a tangent of what constitutes an effective justice system yada yada.

I think the main point is, given the current standard of justice proceedings (IOW what an individual is liable to face on account of grievously causing harm as a consequence of their fault) , a mere traffic infringement (not even a criminal charge) doesn't cut the mustard.

Small correction - the driver was charged with a criminal offence, just a really minor one. Also, it's not that he couldn't have been charged with something more serious, but that he wasn't.

PS my suggestion for law reform is to make causing bodily harm a circumstance of aggravation to breaches of the Road Rules.

As far as I am aware, failing to give way is a traffic offence, not a criminal one.

Crminal offenses usually accrue when the ante is upped in terms of personal damage/injury etc

cp123 wrote:I don't think $400 is right - but what would be? Sticking this guy in jail?


this driver may be remorsely sorry and might have never driven a car again for all we know. he may be deeply affected and in all honesly might' not've "seen him". what is adequate??? I don't know. Is it now up to the injured party to sue him civilly or something for compensation?

In any case the driver was clearly negligent the result of which was almost killing the cyclist. As such, an appropriate punishment in my opinion would be a gaol term of several years. The "I didn't see him" excuse is the loophole in the legal system which allows drivers to not take care and responsibility for their actions.

biker jk wrote:The "I didn't see him" excuse is the loophole in the legal system which allows drivers to not take care and responsibility for their actions.

+1

SMIDSY should be disallowed as an excuse in any incident where a motorist causes injuries to a cyclist (or pedestrian). It is the driver's responsibility to make sure they DO LOOK.... and SEE... in all circumstances. How can driving about effectively with closed eyes be seen as a reasonable thing to do ??

Such a legal outcome would certainly slow down a lot of our impatient and distracted drivers. It is the sort of thing that has been achieved in many European nations.

il padrone wrote:

biker jk wrote:The "I didn't see him" excuse is the loophole in the legal system which allows drivers to not take care and responsibility for their actions.

+1

SMIDSY should be disallowed as an excuse in any incident where a motorist causes injuries to a cyclist (or pedestrian). It is the driver's responsibility to make sure they DO LOOK.... and SEE... in all circumstances. How can driving about effectively with closed eyes be seen as a reasonable thing to do ??

Such a legal outcome would certainly slow down a lot of our impatient and distracted drivers. It is the sort of thing that has been achieved in many European nations.

When has SMIDSY been a legal excuse, ever?

Cheesewheel wrote:

high_tea wrote:
Small correction - the driver was charged with a criminal offence, just a really minor one. Also, it's not that he couldn't have been charged with something more serious, but that he wasn't.

PS my suggestion for law reform is to make causing bodily harm a circumstance of aggravation to breaches of the Road Rules.

As far as I am aware, failing to give way is a traffic offence, not a criminal one.

Crminal offenses usually accrue when the ante is upped in terms of personal damage/injury etc

What statute creates this distinction? And what does it mean anyway? I infer from the quoted article that you can be tried and convicted of a beach of the Road Rules. Gaol isn't an option, but that's true of quite a few criminal offences.

high_tea wrote:When has SMIDSY been a legal excuse, ever?

Police seem to accept it often enough. Eg. the woman who 'doored' James Cross on Glenferrie Rd a year or so back.

high_tea wrote:

Cheesewheel wrote:

high_tea wrote:
Small correction - the driver was charged with a criminal offence, just a really minor one. Also, it's not that he couldn't have been charged with something more serious, but that he wasn't.

PS my suggestion for law reform is to make causing bodily harm a circumstance of aggravation to breaches of the Road Rules.

As far as I am aware, failing to give way is a traffic offence, not a criminal one.

Crminal offenses usually accrue when the ante is upped in terms of personal damage/injury etc

What statute creates this distinction? And what does it mean anyway? I infer from the quoted article that you can be tried and convicted of a beach of the Road Rules. Gaol isn't an option, but that's true of quite a few criminal offences.

I'm no legal eagle but traffic offenses are summary (?)
IOW all a guilty verdict requires is the proof that you performed the action (and its usually given a standard penalty - like for instance failing to stop at a stop sign = $x fine). There is no capacity for such offenses to bleed through into moral correctiveness (such as in the case of damage to property or individuals ... or even prolonged incidences of traffic offenses for that matter - eg history of speeding, unpaid fines etc).

On account of this distinction, criminal offenses tend to stick while traffic offfenses don't

Thats why many employers generally ask their potential employees about any criminal history they have and also why certain professional fields straight out prohibit persons with a specific criminal history from practicing in certain fields

il padrone wrote:

high_tea wrote:When has SMIDSY been a legal excuse, ever?

Police seem to accept it often enough. Eg. the woman who 'doored' James Cross on Glenferrie Rd a year or so back.

I think having a savvy lawyer is more the issue - from what I recall, the culprit in James Cross's death gave her (lawyer assisted) statement to police 3 months after the incident