NSW - Minor Collision on Commute to Work 4 October 2012

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NSW - Minor Collision on Commute to Work 4 October 2012

Postby Sydguy » Thu Oct 04, 2012 12:37 pm

Hi Team

Posting this as it may assist others in avoiding similar scenarios. Firstly I am OK, sore elbow, missing skin and developing a pain in my lower ribs that I may need to get checked out. Importantly the bike is fine too :twisted:

Fault is probably running close to 50/50 with both myself and the motorist breaking 'golden' rules.

I cycled across a zebra crossing on a two way street, this crossing connects a 'bike highway' and technically/legally I should of dismounted. I rarely dismount as the traffic tends to be light. Bikes cycle across all the time, that is no excuse though.

A father and 2 kids were almost across the crossing and a car was stopped at the crossing, I entered the crossing slowly, no traffic coming from my right, I looked at the driver in the stationary car (my left) to make eye contact/nod/wave etc... BUT the sunlight hit the window such that I did not see the drivers face/head.

My front wheel was now in front of his right front wheel and he was looking to his left and took off. Skittled me and bike at low speed. I jumped up pretty fast and was shaking but OK.

I got his business card, this is the first time I have been hit by a car, I've only had close calls before. Anyway he was not rude but not sorry, and kept saying I was on a foot path, I said it was a crossing and I know I probably should dismount. He said he was looking at the kids to confirm they had cleared the crossing directly to his left as he took off forwards.

Anyway always make eye contact and never assume a driver is looking in the direction they are driving in - if you can't see that they have seen you don't go in front of them!

Lesson reinforce for me now. Felt a bit angry at the time, but now more silly that I allowed this to happen.

JM
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by BNA » Thu Oct 04, 2012 2:06 pm

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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby find_bruce » Thu Oct 04, 2012 2:06 pm

JM I am glad to hear you and the bike are ok. Yes you were probably breaking a road rule (248). I am curious though as to how this idiot failed to see you right in front of him and how he thinks that would have been different if you were walking beside the bike.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Thu Oct 04, 2012 2:55 pm

I agree, not the best to be riding across the ped xing, but what if you were "walking fast". no excuse for the driver, but you have to give yourself an uppercut.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby r2160 » Thu Oct 04, 2012 2:57 pm

Not much of an excuse from the driver. If you had been walking, he would probably still have hit you.

Glad your OK

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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby human909 » Thu Oct 04, 2012 4:00 pm

Sydguy wrote:Fault is probably running close to 50/50 with both myself and the motorist breaking 'golden' rules.


If your bike was damaged you should follow it up. From a liability perspective the driver is at fault here.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby m@ » Thu Oct 04, 2012 4:33 pm

human909 wrote:
Sydguy wrote:Fault is probably running close to 50/50 with both myself and the motorist breaking 'golden' rules.


If your bike was damaged you should follow it up. From a liability perspective the driver is at fault here.

Agree, provided you were riding at walking pace, the fact that you were breaking a road rule in no way excuses him failing to give way.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Sydguy » Thu Oct 04, 2012 5:52 pm

Been beating myself up all day over it, and will not use the bike highway in future.

The alternative route is longer, an arterial road that is also lined with parked cars!

I completed the Safe Cycling Study run by UNSW and it piqued my interest in cycling safety issues.

To whom should I report this from a data collection point of view?

Do the local council or police record this type of data? Does it feed into anything?

JM
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Thu Oct 04, 2012 7:41 pm

m@ wrote:
human909 wrote:
Sydguy wrote:Fault is probably running close to 50/50 with both myself and the motorist breaking 'golden' rules.


If your bike was damaged you should follow it up. From a liability perspective the driver is at fault here.

Agree, provided you were riding at walking pace, the fact that you were breaking a road rule in no way excuses him failing to give way.

Actually Sydguy breaking the law does excuse the driver from 100% liability, if the driver went through insurance, I can assure you that the insurance company will not accept 100% of the damages and would more likely settle for 50% damages. I wouldn't bother claiming as if the driver wants to get nasty he can file a complaint with the police and have Sydguy issued with a TIN, he might also cop one as well. Take it on the chin with that uppercut I mentioned earlier and move on.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby human909 » Thu Oct 04, 2012 8:25 pm

Oxford wrote:Actually Sydguy breaking the law does excuse the driver from 100% liability,

Where do you get this notion? While insurance companies may look for any excuse to try to avoid liability they are not the ones who get to decide.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby bychosis » Thu Oct 04, 2012 8:34 pm

human909 wrote:
Oxford wrote:Actually Sydguy breaking the law does excuse the driver from 100% liability,

Where do you get this notion? While insurance companies may look for any excuse to try to avoid liability they are not the ones who get to decide.


what they are likely to do is make it really hard for you in the hope you'll give up.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby human909 » Thu Oct 04, 2012 8:42 pm

bychosis wrote:what they are likely to do is make it really hard for you in the hope you'll give up.


Tell me about it! :evil: :evil: :evil: :evil:

I spent 6 months chasing money for a bike of mine that was involved in an accident. (I wasn't ride, a close female friend was.) Liability wasn't in question but they wanted to pay me $100 for my destroyed roadie.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Sydguy » Thu Oct 04, 2012 9:14 pm

I moved on this morning just after I jumped up off the road - only posted to share the experience.

It is a shame that data is not recorded on collisions, it may assist in planning cycling routes in future.

There is no need to always be us/them or bring up liability, I think my original 50/50 is about right.

I am so glad it was my front wheel and not my 3 year olds head.

JM
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Thu Oct 04, 2012 9:24 pm

human909 wrote:
Oxford wrote:Actually Sydguy breaking the law does excuse the driver from 100% liability,

Where do you get this notion? While insurance companies may look for any excuse to try to avoid liability they are not the ones who get to decide.

Personal experience and having worked for an insurance company. Any damages claim on one party by another will be assessed on the contribution each party made to the overall situation. In this case it is very clear that Sydguy contributed to the situation by breaking the law first, so he will be attributed as partly to blame and responsible for some of the damages. Don't get confused about breaking the law as opposed to liability, the driver still did break the law, but if Sydguy didn't first then maybe the driver would not be in a position where he did also and the damages may not have even occurred.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Howzat » Thu Oct 04, 2012 9:33 pm

That's cool of you to move on quickly, and thanks for sharing 8)

But you're not at fault in my book. The motorist had stopped and then proceeded into a crossing that was not clear. That means they didn't take appropriate care. It sounds to me like he would have hit you if you'd been walking your bike - or hit another pedestrian there at the wrong time.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby human909 » Thu Oct 04, 2012 9:45 pm

Howzat wrote:That's cool of you to move on quickly, and thanks for sharing 8)

But you're not at fault in my book. The motorist had stopped and then proceeded into a crossing that was not clear. That means they didn't take appropriate care. It sounds to me like he would have hit you if you'd been walking your bike - or hit another pedestrian there at the wrong time.

That is my read on the situation.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby gistane » Thu Oct 04, 2012 10:16 pm

Oxford wrote:
human909 wrote:
Oxford wrote:Actually Sydguy breaking the law does excuse the driver from 100% liability,

Where do you get this notion? While insurance companies may look for any excuse to try to avoid liability they are not the ones who get to decide.

Personal experience and having worked for an insurance company. Any damages claim on one party by another will be assessed on the contribution each party made to the overall situation. In this case it is very clear that Sydguy contributed to the situation by breaking the law first, so he will be attributed as partly to blame and responsible for some of the damages. Don't get confused about breaking the law as opposed to liability, the driver still did break the law, but if Sydguy didn't first then maybe the driver would not be in a position where he did also and the damages may not have even occurred.


Oxford are you the same type of person who would say that if someone parked their car illegally and someone reversed in to it that the illegally parked car should also be held responsible for an accident?
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Mulger bill » Thu Oct 04, 2012 10:33 pm

human909 wrote:
Howzat wrote:That's cool of you to move on quickly, and thanks for sharing 8)

But you're not at fault in my book. The motorist had stopped and then proceeded into a crossing that was not clear. That means they didn't take appropriate care. It sounds to me like he would have hit you if you'd been walking your bike - or hit another pedestrian there at the wrong time.

That is my read on the situation.


While I'd like to agree with this, methinks the assumption likely from Plod via insurance co lawyers, right up to the beak would be that he was on a bike, on a crossing ergo, his fault. None of them would be likely to give a moments thought that OP may well have been travelling at walking pace.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Fri Oct 05, 2012 5:43 am

gistane wrote:...

Oxford are you the same type of person who would say that if someone parked their car illegally and someone reversed in to it that the illegally parked car should also be held responsible for an accident?

Why do you all assume this is my personal belief? Where have I said that? In fact my first post in this thread says no excuse for the driver. My personal belief is the driver was wrong, purely from a legal point of view. However from a liability point of view, Sydguy is partially responsible, because he was also wrong. I really cannot make it any easier for you to understand than that. If you perform an illegal act, you take on some responsibility for the consequences of that illegal act. Particularly if there is a causal link between the two.

Flipping your argument, are you saying you can do whatever you please no matter how illegal and if you come to harm through anothers actions as a result of your own actions that they bear sole responsibility for your loss?
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby human909 » Fri Oct 05, 2012 7:19 am

Oxford wrote:purely from a legal point of view. However from a liability point of view, Sydguy is partially responsible, because he was also wrong.

You have had experience at and insurance company. They do not decide things directly a legal point of view only a court does. From a legal point of view it comes down to a negligence suit.

Oxford wrote:If you perform an illegal act, you take on some responsibility for the consequences of that illegal act.

I fail to see how riding a bicycle in front of a stopped car makes you responsible for its failure to give way. The car is obliged to give way.

Oxford wrote:Particularly if there is a causal link between the two.

I cannot see the casual link between the two. From the description if Sydguy was dismounted and walking in front then the same would have occurred.


My 2 cents anyway. Lets not get too heated about this. :D
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Fri Oct 05, 2012 8:26 am

human909 wrote:
Oxford wrote:purely from a legal point of view. However from a liability point of view, Sydguy is partially responsible, because he was also wrong.

You have had experience at and insurance company. They do not decide things directly a legal point of view only a court does. From a legal point of view it comes down to a negligence suit.

Oxford wrote:If you perform an illegal act, you take on some responsibility for the consequences of that illegal act.

I fail to see how riding a bicycle in front of a stopped car makes you responsible for its failure to give way. The car is obliged to give way.

Oxford wrote:Particularly if there is a causal link between the two.

I cannot see the casual link between the two. From the description if Sydguy was dismounted and walking in front then the same would have occurred.


My 2 cents anyway. Lets not get too heated about this. :D

Okay, well Sydguy is required to dismount and walk a ped' Xing, so by not doing so he contributed to the situation. Had Sydguy walked, maybe he would not have been where he was at the time, in front of the car (all what ifs that are considered in a claim), he may have still been commencing his crossing and no where near the car (though a vehicle is not allowed to cross the zebra crossing until it is completely clear in reality). All the factors will be considered and their potential contribution to the outcome. Some may be dismissed altogether, some given more weight, some less weight.

Insurance companies (or should I say parties to a damages/liability discussion) do decide things from a liability (and as a result legal and binding) point of view all the time. Its only when the two parties cannot agree that a court may be chosen to arbitrate the matter. I know this, as I am currently within this process for my claim. If we all agree (at a lawyer level), we part ways with a legally binding agreement that specifies the % responsibility of each party and the $$$ as a result. If we cannot, it can go to arbitration where barristers may argue the matter, if they cannot agree, then a court/judge may get to decide on the matter. Happens every day and at each level the matter can be made binding on all parties in terms of % and $$$. In my case the CTP insurance company is trying to have me partially responsible for being hit from behind. Despite the driver being issued a TIN and me nothing at all (I did nothing illegal or wrong). Go figure that.

I think Sydguy is doing the right thing, learned from the experience and moving on. Pushing it further could have untold consequences.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Ross » Fri Oct 05, 2012 9:11 am

human909 wrote:
Oxford wrote:If you perform an illegal act, you take on some responsibility for the consequences of that illegal act.

I fail to see how riding a bicycle in front of a stopped car makes you responsible for its failure to give way. The car is obliged to give way.

Oxford wrote:Particularly if there is a causal link between the two.

I cannot see the casual link between the two. From the description if Sydguy was dismounted and walking in front then the same would have occurred.


My 2 cents anyway. Lets not get too heated about this. :D


Yes the car driver should of given way to the cyclist but the cyclist probably wouldn't of been in that exact spot and wouldn't of been hit if he had been walking his bike across the crossing.

A mate of mine years ago worked at a bar. After his shift finished (late at night/early morning) he had a couple of "staffies" after work. Problem is he had too many. He was driving home, minding his own business and (according to him) not speeding, just driving along when this old granny went through a red light and and hit him. Cops came and investigated and put my mate on th breathalyser and he blew over (can't recall exact reading, I think it was low range). Anyway, my mate was deemed to be at fault because he was DUI theoretically he shouldn't of been driving at all, even though granny went through the red light. Not sure what the final outcome was in the end. I don't think my mate had to pay for other car but he did get a fine and licence suspension. Don't know what charges, if any, were laid against the other driver. But this is sorta similar to Sydguy's situation. Sorta.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby find_bruce » Fri Oct 05, 2012 10:15 am

Negligence is a very difficult area - it turns on what a reasonable person would have done in the circumstances. Whilst different opinions are expressed here, there is also divisions in judicial opinion about it.

A good example is Manley v Alexander [2005] HCA 79 where a truck driver was being careful of a drunk pedestrian on the side of the road and ran over another drunk pedestrian who was lying in the middle of the road. The High Court split 3-2 with 3 judges upholding adecision that the truck driver was negligent but that the drunk lying on the road was also negligent and so only recovered 30% of his damages. The other 2 judges held that the truck driver was entitled to give attention to a particular and potentially dangerous emergency situation (the drunk walking along side the road & likely to veer into the road) in priority to an apparently benign one - the apparently clear road ahead.

Bringing it back to Sydguy's matter

(1) this is not going to be decided by anyone, let alone a court - as he said from the outset, he is ok, his bike is ok.

(2) the mere fact that one person is in breach of the road rules does not entitle someone to run them down - Sydguy quite properly accepts that he at least contributed to the situation.
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Sydguy » Fri Oct 05, 2012 2:18 pm

PS. I was rattled for most of the day playing it over in my head. Getting changed/ready to ride home I left my mobile in changeroom and it vanished :(

Do you think I can get the driver to pay for a replacement phone? (<---- this is a joke please don't argue and quote case law)

Thanks for all the analysis!

JM
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby Oxford » Fri Oct 05, 2012 3:21 pm

Ouch. What sort of phone?
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Re: NSW - Minor Collision on Commute to Work 4 October 2012

Postby gururug » Fri Oct 05, 2012 3:27 pm

Thanks for sharing sydguy. Glad your ok.
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