For those who see things in black and white

[ColinOldnCranky]

For all those who strongly state that the fact of an accident between a car and a cyclist is, by definition, undeniably due to drivers fault - whether 100% or just somewhat culpable - I'll describe my close shave this morning.

I was driving at a slow (approx 20kph) south east along Marine Tce in Freo. A jogger on the path to the left running in the same direction as me at almost a right angle straight out and onto the road immediately in front. I am talking sudden decision with no warning to cross the road without interrupting stride or pace at a shart right angle. It was fortunate that he realised before i could take any action and did a further hard right so that he was able to fit between me and the curb and continued to my rear. I had zero time to stop. If I had been a foot or so further to the curb I have no doubt that I would now be talking to the police and he would be receiving treatment or worse.

I did glimpse his face as he came back into view over my right hand shoulder where he was the looking at me. He looked like a rabbit caught in headlights and somewhat shaken. I think he would have been better off not continuing in that state as, had a car been coming the other way, he would have again been at risk.

Anyone who thinks a driver (or a cyclist for that matter) can reduce all risk just be being perfect is a fool. Occasionally an accident or tragedy involving a car can happen without any blame legitimately attaching to the driver. As I am clear would have been the case this morning if I had collected this guy.

Yes, I could ensure that I am never in that. Situation, But only by by not ever driving.

btw I doubt that any witness to the event would have been able to bear witness to anything except that a car ran over a pedestrian. Keep those GoPros running.

[citywomble]

Colin,

I second that.

My most embarrassing experience driving a car was in the UK. Picture the scene:

Me getting out of the car, elderly blind man, with white stick, lying in the road groaning in front of the car. Right in the middle of the main shopping centre and, boy, was everyone looking!

What had happened? I stopped to allow a mum and child to cross at an intersection. The blind man then decided from further back he could now cross. Straight into the side of the stationary car, fell forward onto bonnet, rolled down in front and actually hurt himself. For 5 minutes while I helped him to recover I felt the whole world was judging me. All I did was stop and give way. I can't blame the blind man for not looking.

Those closest heard him apologising to me, everyone else thought I had taken out a blind man with a white stick.

[ColinOldnCranky]

Those closest heard him apologising to me, everyone else thought I had taken out a blind man with a white stick.

Awkward

[The zob]

29 years ago I had a bloke cross an intersection in front of me....against the lights. I was approaching 3 lanes to the right of the bloke. I started slowing, but he must have suddenly realised what was going on, panicked and ran straight into me (I was on a motorcycle). He died, I went through multiple coronial inquests. To this day I despise pedestrians that try to assert their God given right to do anything they want (that bloke didn't...he was actually on meds and missing from a nursing home. Go figure), and I'm hyper sensitive to anything smaller than me that enters my comfort zone. So I like to think I'm a responsible driver. I deal with CBD traffic everyday in an assortment of ways....in a 4wd one day, a 16t truck another, on the bike these days (great way to get about during the day....leave the 4wd on one job and ride the bike about checking others)...and almost every day a pedestrian or cyclist attempts to commit suicide using me....even when I'm on the bike the walkers try . The cyclists use me as a test track witch's hat on Southbank, the cars try to squash me at Collins and Spring, trucks think I'm armco...

What ya gonna do? Gotta co-exist, and not sweat the small stuff. Pedestrians are always going to start crossing just as the red man starts flashing Cars are always gonna chop cycles off turning left, cyclists are always gonna ride 3 abreast next to a bike lane. I don't need to be in Europe to live side by side, I can do it here.

[jules21]

For all those who strongly state that the fact of an accident between a car and a cyclist is, by definition, undeniably due to drivers fault - whether 100% or just somewhat culpable - I'll describe my close shave this morning.

but it is the law for cyclists on shared paths.

you are correct in explaining how it is not always practicable to avoid a collision, when the other party is highly negligent. however, all you've proved is that there are drawbacks to such a rule. it is a logical fallacy to belief this disproves its merit. the fact is, current laws protecting cyclists against motorists also have (significant) drawbacks.

the choice should be to choose the best (least worst) option. you haven't shown how it is that.

[high_tea]

For all those who strongly state that the fact of an accident between a car and a cyclist is, by definition, undeniably due to drivers fault - whether 100% or just somewhat culpable - I'll describe my close shave this morning.

but it is the law for cyclists on shared paths.

you are correct in explaining how it is not always practicable to avoid a collision, when the other party is highly negligent. however, all you've proved is that there are drawbacks to such a rule. it is a logical fallacy to belief this disproves its merit. the fact is, current laws protecting cyclists against motorists also have (significant) drawbacks.

the choice should be to choose the best (least worst) option. you haven't shown how it is that.

It should also be pointed out that the situations described in these threads are situations where you'd expect the criminal defence of accident (or "unwilled act") to apply, either under the current law or under some hypothetical new law.

[Ken Ho]

It's true that you cannot reduce risk to zero.
It's also true that we are driving our whole country batshiver by trying to do that.

[diggler]

The law should be

Car v cyclist or pedestrian, car is at fault unless proven otherwise.

Cyclist v pedestrian, cyclist is at fault unless proven otherwise.

Cameras are so cheap nowadays that every car and bicycle should have one fitted to exculpate themselves.

If you can't be bothered to fit one, then expect the full force of the presumption against you.

[VRE]

The law should be

Car v cyclist or pedestrian, car is at fault unless proven otherwise.

Cyclist v pedestrian, cyclist is at fault unless proven otherwise.

Cameras are so cheap nowadays that every car and bicycle should have one fitted to exculpate themselves.

If you can't be bothered to fit one, then expect the full force of the presumption against you.

Speaking of seeing things in black & white .

Yes, some cameras are cheap, although for some people have problems justifying buying even the cheaper ones, due to their low income. The problem is that these cheaper cameras have significant drawbacks, generally being substandard in any one of: low-light performance, video quality, battery running time, physical construction (e.g. bad mounting hardware), etc.

So diggler, are you going to propose that the Government subsides those people on lower incomes who can't afford a decent video camera? The alternative is for those people to be disadvantaged in any road/path incident to which a strict-liability law is applied. There would be 2 classes of road users: those with the money to use video cameras, and those without.

[human909]

So diggler, are you going to propose that the Government subsides those people on lower incomes who can't afford a decent video camera? The alternative is for those people to be disadvantaged in any road/path incident to which a strict-liability law is applied. There would be 2 classes of road users: those with the money to use video cameras, and those without.

Oh dear. What an absurd comment.

"Strict liability" of various forms exists all through Europe without such absurd notions being a problem.

[VRE]

So diggler, are you going to propose that the Government subsides those people on lower incomes who can't afford a decent video camera? The alternative is for those people to be disadvantaged in any road/path incident to which a strict-liability law is applied. There would be 2 classes of road users: those with the money to use video cameras, and those without.

Oh dear. What an absurd comment.

"Strict liability" of various forms exists all through Europe without such absurd notions being a problem.

I was responding to diggler's comment regarding availability of cameras, so your insult wasn't necessary, human909. I'll well aware of the history of strict liability, so please don't confuse my small number of posts in this forum with me having little knowledge. Responding to others' posts in this manner doesn't exactly endear you to others.

[human909]

I was responding to diggler's comment regarding availability of cameras, so your insult wasn't necessary, human909. I'll well aware of the history of strict liability, so please don't confuse my small number of posts in this forum with me having little knowledge. Responding to others' posts in this manner doesn't exactly endear you to others.

I believed you comment was a little absurd so I said so. I certainly didn't feel too restrained in bluntly expressing my opinion due to your more aggressive response to diggler.

I still believe the notion of government subsidised cameras for motorists and cyclists to be absurd. I'm sorry if you find that insulting.

[VRE]

I was responding to diggler's comment regarding availability of cameras, so your insult wasn't necessary, human909. I'll well aware of the history of strict liability, so please don't confuse my small number of posts in this forum with me having little knowledge. Responding to others' posts in this manner doesn't exactly endear you to others.

I believed you comment was a little absurd so I said so. I certainly didn't feel too restrained in bluntly expressing my opinion due to your more aggressive response to diggler.

I still believe the notion of government subsidised cameras for motorists and cyclists to be absurd. I'm sorry if you find that insulting.

I'm done here, then. It's pointless replying to any of your posts as long as you continue to misquote and insult me.

[diggler]

http://www.ebay.com.au/itm/MD80-Mini-DV ... a98&_uhb=1" onclick="window.open(this.href);return false;

You can get an MD80 camera for less than $10. It is good enough to show who is at fault in an accident.

The camera cost is not really the issue. You will have old people who are not tech savvy enough to charge the camera or save the files to computer.

I'm merely proposing a presumption which is rebuttable. If they don't have a camera they will just have to rely on witness testimony to rebut the presumption, which has been the basis of the court system for hundreds of years. They just won't have the advantage of video evidence.

[high_tea]

http://www.ebay.com.au/itm/MD80-Mini-DV ... a98&_uhb=1

You can get an MD80 camera for less than $10. It is good enough to show who is at fault in an accident.

The camera cost is not really the issue. You will have old people who are not tech savvy enough to charge the camera or save the files to computer.

I'm merely proposing a presumption which is rebuttable. If they don't have a camera they will just have to rely on witness testimony to rebut the presumption, which has been the basis of the court system for hundreds of years. They just won't have the advantage of video evidence.

Is this a civil or criminal presumption? And what has to be shown to enliven it?

[diggler]

http://www.ebay.com.au/itm/MD80-Mini-DV ... a98&_uhb=1

You can get an MD80 camera for less than $10. It is good enough to show who is at fault in an accident.

The camera cost is not really the issue. You will have old people who are not tech savvy enough to charge the camera or save the files to computer.

I'm merely proposing a presumption which is rebuttable. If they don't have a camera they will just have to rely on witness testimony to rebut the presumption, which has been the basis of the court system for hundreds of years. They just won't have the advantage of video evidence.

Is this a civil or criminal presumption? And what has to be shown to enliven it?

I haven't really thought about it. Oops. It seems NSW has a no fault vehicle insurance so the issue doesn't arise in civil as there will be compensation for injury without need to prove fault. I guess I am referring to criminal then. Are traffic offences usually classified as criminal?

[high_tea]

Breaches of the Road Rules are criminal offences, yes. There are some not-particularly-interesting caveats to this (like the way that most breaches either get ignored or dealt with by paying a fixed penalty), but they're certainly treated as criminal, rather than civil offences. Coincidentally, they are offences of strict liability in that they do not have a fault element.

It's interesting to not that the RBT laws - I mention this because it gets thrown around a prime example an effective law, one that significantly reduced fatalities - didn't just create strict liability. That, I believe, predated RBT. The big changes were, as I understand it

- deeming provisions that made it very very hard to challenge BAC readings
- making it lawful to test randomly, plus making it an offence to refuse
- a big, big enforcement push
- a heap of publicity (my impression is that this hasn't really let up for the last 25-30 years)
- a willingness to change the law in response to legal challenges.

So it wasn't just a case of making an offence harder to fight it court, although that was certainly part of it. It was also about making it more likely (and less socially acceptable) to get caught.

I take two things away from this. One, legislative change can work. Two, there's more to it that strict liability, or just changing the legislation for that matter.

Usual disclaimers.

[diggler]

I don't think I am advocating strict liability. I think I am advocating reversing the onus of proof.

Strict liability means there is pretty much no defence. Reversing the onus means there is a defence, but it falls on the driver or cyclist to raise it to overcome the presumption of guilt.

[high_tea]

Defences such as unwilled act and mistake of fact are most certainly available for strict liability (criminal) offences. I can accept that there's a difference between an offence with no fault element ("strict liability") and a rebuttable presumption of fault, but I don't see why the presumption is somehow preferable. As I said earlier, making an offence harder to fight in court is only part of it.

[casual_cyclist]

I think when the OP stated:

For all those who strongly state that the fact of an accident between a car and a cyclist is, by definition, undeniably due to drivers fault - whether 100% or just somewhat culpable

he was highlighting the people who automatically 100% blame the car driver as being at fault or partlty for any accident between a car and cyclist. I agree with the OP that is not always the case. There are times when a cyclist is at fault for an accident between a car and a cyclist and there was nothing the driver could do to prevent the accident.

[im_no_pro]

I think when the OP stated:

For all those who strongly state that the fact of an accident between a car and a cyclist is, by definition, undeniably due to drivers fault - whether 100% or just somewhat culpable

he was highlighting the people who automatically 100% blame the car driver as being at fault or partlty for any accident between a car and cyclist. I agree with the OP that is not always the case. There are times when a cyclist is at fault for an accident between a car and a cyclist and there was nothing the driver could do to prevent the accident.

That was how I took it as well. It was always going to go off into strict liability though...