Accident with a Truck (Uninsured)

Lausmansan on 21/06/2019 - 17:47
Last edited 22/06/2019 - 11:10 by 1 other user

I live in QLD and I had an accident in NSW region last year. The weather was terrible, it was hailing and raining at the same time. I was in a car and was hit by a truck. My car was written off and there were very little damages to the truck. I was uninsured at the time of the accident (my blunder).

Insurance company of the truck slapped me with a bill of nearly $42000 accusing me fully at fault. They forwarded the case to the lawyer. I offered them $10000 for their damages to pay them in instalments. They refused my offer. They want to take me to court. It can be seen from the video footage that the truck driver was not speeding according to the weather conditions. I have uploaded the dashcam footage that they given me as an evidence of my fault.

I want to know if I am at fault? If yes, to what extent? What are my chances if the matter goes to court.

Truck driver was definitely over speeding as per the weather conditions. Any comments on that?

Tried to calculate his speed by the dashcam footage.

He crossed 25 white lines in 10 seconds. Each white line is 10 feet itself and the distance between the lanes are 30 feet, in total 40 feet.

25 x 40 = 1000 feet
1000 feet = .308 meters in 10 seconds
.308 meters x 6 = 1.848
1.848 x 60 = 110 KMPH

Max speed for these kind of trucks in NSW is 100 KMPH

Automotive

Comments

Hardlyworkin on 23/06/2019 - 08:20

+6

You could try claiming that driving like an idiot is part of your religious freedoms and start a GoFundMe page.
TomGum on 23/06/2019 - 09:36

OP broke the law by not checking his blind spot. The OP also broke the law by making another vehicle use his brakes during a lane change. I want to know if OP got a fine or a warning from the police?
- [Deactivated] on 24/06/2019 - 14:28
  
  The OP also broke the law by making another vehicle use his brakes during a lane change.
  
  Is that an actual law?😲
  - Typical16-bitEnjoyer on 24/06/2019 - 15:40
    
    +1
    
    I think they are referring to the road rule that you must give way / not impede another driver.
cashie on 23/06/2019 - 09:46

+1

Be very glad you’re still alive, you could easily have died with that ridiculous manoeuvre.
Your best bet is to ask for a detailed itemised statement of the $42k claim and beg for mercy.
j0hnd0e on 23/06/2019 - 09:53

+6

You should be banned from driving! Plus pay the 42k fine!
schlager on 23/06/2019 - 10:59

+3

i got 42000 problems but insurance ain't one
- [Deactivated] on 23/06/2019 - 11:27
  
  +1
  
  42,000? That doesn't make cents…
ribze1 on 23/06/2019 - 11:21

Deadset how can people not have extended third party insurance, it cost me $600 a year even when i was on my Ps (albeit 10 years ago).

Should be mandatory like a greenslip.
- Pantagonist on 23/06/2019 - 11:52
  
  cost me $600 a year
  
  That sounds excessive even if you were on your P plates, especially considering that it was 10 years ago.
  
  My most recent third party insurance renewal (without theft and fire) cost $160 for 12 months.
  
  For those interested, that's 0.4% of $42,000 or 263 annual renewals.
  - AMLagonda on 23/06/2019 - 12:08
    
    +1
    
    $237.42 annually for my daughter on P Plates…..
    - Pantagonist on 23/06/2019 - 12:10
      
      That sounds reasonable.
      
      I can only see a third party premium being $600 if theft and fire is included and/or you choose to pay more to reduce the excess payable if an accident happens.
    - ribze1 on 23/06/2019 - 19:24
      
      Nice, was definitely no where near that for me, even if i'm off the mark.
    - Banana on 25/06/2019 - 11:32
      
      That's really cheap!
  - ribze1 on 23/06/2019 - 19:23
    
    Just checked my old emails, online renewals so nothing i can refer to. This was for a 1990 Mazda 323.
    From memory, green slip was $600, rego $300 and $600 for insurance, i remember rego-ing the car costing me about $1500.
Marcsie on 23/06/2019 - 11:34

+1

No insurance so no sympathy for me.
Take out a loan, pay for it.
Learn a hard lesson,
Get insurance and move on.
thepigs on 23/06/2019 - 11:49

The lawyers will be taking 50% hence the big markup.
lonewolf on 23/06/2019 - 12:27

-5

That truck did look like it was going very fast compared to all the other vehicles it passed with ease.
- j0hnd0e on 23/06/2019 - 12:37
  
  +6
  
  The truck only passed A SINGLE VAN, the other cars are stationary on the road shoulder! You need a pair of glasses.
  - Zarlia on 24/06/2019 - 20:35
    
    +2
    
    Van probably slowed down because of op up ahead, and the van wasn't changing lane for no reason
    - lonewolf on 25/06/2019 - 12:04
      
      Or the van slowed down due to the wet conditions and also the incident.
  - lonewolf on 25/06/2019 - 12:04
    
    wow what a nice and friendly response. I presume a van will be considered a vehicle? I didnt say the truck was in the wrog, but i still say the truck did seem to be going really fast. But anyway no point talking to people like you who can only insult on the net as you will be too cowardly to say that in person.
Whomastadon on 23/06/2019 - 17:43

+2

The trucking insurance company won't accept your 10k offer because they know they will be able to take you to the cleaners.

Justice will be served
Marcsie on 23/06/2019 - 18:46

+1

No brain, no gain !
freakatronic on 23/06/2019 - 19:51

+4

OP, you're a danger to everyone on the road.
CMH on 23/06/2019 - 21:19

+1

Op hasn't been back… Hit by another truck?
- Ace Ventura on 24/06/2019 - 21:00
  
  +8
  
  Hit by another truck?
coolsteps on 23/06/2019 - 22:05

+2

first rule of thumb never admit you are at fault went it comes to car accidents. Op i cant understand what made you signal and change lane at the last minute? It was a very dangerous and careless move im sure you didn't do a shoulder check. There's no way a Heavy Vehicle would have been able to stop in time you are lucky no one was killed and should consider getting some professional driving lessons or surrender your drivers license.
- Vote for Pedro on 23/06/2019 - 22:24
  
  +4
  
  I can guess what op was doing.
  
  Uninsured
  
  Hail
  
  Bridge
  
  Poop, left side under bridge full
  
  I’ve got an idea….
ssjwill on 24/06/2019 - 09:29

+5

relevant
majord on 24/06/2019 - 10:22

+3

Both OP and truck get a fail from me.
OP for obvious reasons, Truck driver for not backing off earlier, Given the congestion in that left lane.
- bobwokeup on 24/06/2019 - 23:23
  
  -6
  
  Agreed both were to blame but most of the fault is with the truck driver. He was driving like he owned the road and ignored the accident in the emergency lane.
  - pegaxs on 24/06/2019 - 23:27
    
    +5
    
    Most of the fault lays with the truck driver? Lol.
    
    Let’s just say, with your lack of road rules, if you think the truck driver is at fault, all upi can say is, I am grateful that you live on drive on the opposite side of the country.
    
    Please, for the sake of my amusement, just name one actual road rule the truck is breaking. Just one.
Jackkkkkk on 24/06/2019 - 10:26

+2

poor guy.. makes a new ozb account only to check his luck, and gets flamed hahaha

Good luck with the 42k Debt. Sell the land
- sghetti on 24/06/2019 - 11:01
  
  Large assumptions but they've only just settled on the land and paying interest only. I'll hazard a guess at them not really putting down much of a deposit and selling it won't get them in a much better position, given taxes and fees involved etc.
  - Homr on 24/06/2019 - 11:41
    
    Where does it say he bought land??
    - sghetti on 24/06/2019 - 12:02
      
      Further up in another comment on the first page. Someone asked if he had assets like a house he could sell. He mentioned he settled on land recently.
  - monkeyfood on 24/06/2019 - 12:32
    
    +2
    
    the land already lost value the moment they bought it in today's market
  - Typical16-bitEnjoyer on 24/06/2019 - 15:44
    
    OP is better off selling the land if he can't settle quick smart. Insurers will 100% undertake asset searches before hitting him with Court documents.
tkdbboy on 24/06/2019 - 13:28

+8

You're all wrong. OP had their indicator on therefore had right of way. Truck should've broken the law of physics and slowed down. 420k should be awarded to OP.

The number of drivers that think "Indicator on = All rights of way belong to me now" is getting concerningly high
Seraphin7 on 24/06/2019 - 13:43

+4

The (apparent) fact that this didn't result in a fatality, possibly multiple, is perhaps the most noteworthy thing about this video.

@OP … if you in anyway think you were not 100% at fault in this accident, please hand in your licence immediately. I don't want you driving anywhere near me or my family.
Trying2SaveABuck on 24/06/2019 - 15:28

-6

I reckon OP jetted overseas wait till the insurance company gives up chasing the idiot - honestly people like OP are why i cant stand socialism they are the same idiots that milk welfare never work and complain they cant afford a house.

If you dont have 3rd party insurance dont f***n drive
- Typical16-bitEnjoyer on 24/06/2019 - 15:47
  
  +5
  
  Bit of a stretch linking OP's obvious poor driving with Socialism, don't cha think?
  - Trying2SaveABuck on 25/06/2019 - 06:30
    
    -6
    
    Mate thanks to socialist/Political correctness it isnt compulsory to have insurance i know so many drugys refugees short term visa driving around without insurance its not funny.
    
    But if you say anything for a racist thanks to your socialist mates. They have fukd this country
    - ThithLord on 25/06/2019 - 07:45
      
      +4
      
      Wwwooooowwww.
      - Typical16-bitEnjoyer on 25/06/2019 - 11:16
        
        +1
        
        @ThithLord: Wow indeed…
        
        Guess how I know Onthedshred is Caucasian…
- Vote for Pedro on 24/06/2019 - 21:40
  
  +2
  
  More like a capitalist. Goes about his business contributing nothing to society (no insurance) and then when it goes to sh*t tries to get away without reconciling debts.
- CMH on 24/06/2019 - 21:46
  
  +2
  
  OP bought land. He can jet off overseas if he likes, he will still face significant losses.
  
  Might still be cheaper to jet off though, he'd lose deposit on the land (minimum 5% to get an IO loan) + loss of the car, and possibly loss of PR/Visa/studies done + start over in another country…
  
  All for $40.
  - Trying2SaveABuck on 25/06/2019 - 06:27
    
    -1
    
    Doesnt even have to be o/s his car is a write off so thats already gone
    
    Change you number rent a different house for 6-12months eventually insurance will stop chasing you. But you would at least need to go interstate change ur number, find a job keep paying off the land it would be way cheaper then paying 42k.
    
    The shit thing about Australia is you essentially dont have to pay anyone unless it is the government. Even if it goes to court. - that is thanks to socialist who have softened the law to be weak as piss
    
    Just look at the Belle bi*ch that has been ordered to pay that 400k back for faking cancer whilst taking holidays.
    - Typical16-bitEnjoyer on 25/06/2019 - 11:20
      
      +3
      
      Change you number rent a different house for 6-12months eventually insurance will stop chasing you.
      
      Lol. No they won't. Debt is over 10k and OP has land. Finding anyone in Australia with either an income, bank account or rental is easy. They're like the terminator. They don't stop.
      
      The shit thing about Australia is you essentially dont have to pay anyone
      
      Insurer will obtain Judgment.
      They'll serve a bankruptcy notice to the last known address.
      They'll serve a creditor's petition via order to the last known address.
      Trustee will take the land, take control of OP's bank account, liaise with OP's employer.
      The whole 9 yards.
      
      Please don't share bad tips like this. These are steps that some people take that ruins their financial lives.
      - Trying2SaveABuck on 25/06/2019 - 11:33
        
        @Typical16-bitEnjoyer: It will cost them more then 42k in wages to chase that up
        
        they will sell the debt to credit corp or someone like that and OP will have the option of repaying the debt at a much lower cost
        
        Typical16-bitEnjoyer on 25/06/2019 - 11:37
        
        +1
        
        @Trying2SaveABuck:
        
        It will cost them more then 42k in wages to chase that up
        
        Legal costs are recoverable in bankruptcy. It won't even add up to a quarter of that anyways.
        
        they will sell the debt to credit corp or someone like that and OP will have the option of repaying the debt at a much lower cost
        
        This isn't a credit card etc. that OP has stopped paying. OP has no contract with the insurers. This will go to Court and go through the steps above.
        
        Trying2SaveABuck on 25/06/2019 - 12:16
        
        @Typical16-bitEnjoyer: fair enough - i concede to your point
JoJoker on 24/06/2019 - 16:45

+2

My guy - you royally screwed up here. Chasing the trucking company for 25% is a roll of a dice. Work out a payment plan with them and cop this one on the chin – it will only set you back a year or two in life and no one got hurt. I'm sorry that people aren't being kinder to you here, I know I've made some mistakes in life that I look back on and think "I'm not sure why I did that".
- j0hnd0e on 24/06/2019 - 21:28
  
  +1
  
  Read his comments on page 1. He doesn't deserve anyone's kindness.
  - Vote for Pedro on 24/06/2019 - 21:41
    
    Everyone deserves kindness
    - Typical16-bitEnjoyer on 25/06/2019 - 11:22
      
      +2
      
      OP deserves kindness agreed, but only when his attitude adjusts to the reality of the situation.
      - ankor on 25/06/2019 - 20:21
        
        @Typical16-bitEnjoyer: Well it's also difficult to accept that a f_up can cost so much. But that's why people buy insurance, to avoid exactly the situation that the OP now finds himself in.
        
        apsilon on 25/06/2019 - 20:29
        
        +1
        
        @ankor: Could've been 10 times that amount if they'd pulled out on the right car. There's plenty of common cars that cost more than $42k on the road. No one would be happy having to pay for it but you've got to take responsibility for your choices and actions. It's become all to common in society to seek to place the blame on others.
        
        Typical16-bitEnjoyer on 26/06/2019 - 16:20
        
        @ankor: OP's f_up could have cost more. Merged 3 seconds earlier and one of the drivers may have lost their life.
neosin on 24/06/2019 - 23:03

-3

OP has a chance to argue that the truck driver contributed to the accident as he/she was not driving within a reasonable standard given the severe weather conditions.

The footage clearly shows 6 vehicles at a complete stop on the side of the road due to severe conditions. OP can argue that it was not unreasonable for him to have slowed down.

In addition, at 18 sec of the video, it is evident that truck driver did not have his headlights on (0 light reflection on OP's black car) which would have made it harder for the OP to see him in the severe conditions.

Although I couldn't find a specific road rule or regulation which state you must slow down in very bad weather conditions, there are however guidelines on transport for NSW Gov website which states that;

"Drivers need to adjust their behaviour in bad weather. To avoid the increased risk of crashes in wet and icy weather, drive to the conditions and slow down. Drivers should use headlights on low beam to help other road users see them in overcast and wet conditions. For safe braking, allow extra distance to the vehicle in front."

https://roadsafety.transport.nsw.gov.au/stayingsafe/drivers/…
- pegaxs on 24/06/2019 - 23:37
  
  +10
  
  These are “recommendations” not legislation. The truck driver was doing everything legally. In the correct lane, going the correct speed.
  
  OP merged into the truck. The onus is on OP to make the lane change safely, this is law. The truck having its lights on or not is irrelevant. Unless it was night time, there is no requirement under legislation that says a truck has to turn its lights on in bad weather…
  
  If the truck was going 10~20km/h slower and had lights on, this accident would still have happened.OP was the one breaking actual road rules here, not the truck driver.
  - neosin on 25/06/2019 - 16:10
    
    -8
    
    If there is no clear legislation or precedent regarding driving safely im severe weather conditions then guidelines and recommendations by a government authority is relevant.
    
    The OP was doing what a reasonable person would do i.e slow down and was following government recommendations. The truck driver was not driving reasonably under severe conditions.
    
    Would you still argue the truck driver was doing everything right had this been a snow storm and visibility was 0?
    
    The onus is on the OP to check his rear mirrow, however, do you still think OP was fully at fault if he couldn’t see the truck because his lights were off?
    
    From a legal perspective the OP did nothing wrong.
    
    He slowed down under severe weather conditions which is what any reasonable person would have done. 8/9 vehicles applied the same logic. 1/9 being the truck driver.
    
    OP indicated for a good 5 sec before he turned into lane.
    
    The fact that the truck driver didn’t have his lights on would have caused OP not to have seen him im his rear mirror under these severe conditions.
    
    In court, OP would argue he did everything a reasonable person would have done. The truck driver would argue he did everything legally.
    
    The judge would likely rule neither parties not at fault and each to cover own damages.
    - Ughhh on 25/06/2019 - 16:29
      
      +4
      
      What OP did, was not reasonable at all.
      
      OP indicated for a good 5 sec before he turned into lane.
      
      And that gives OP the right to not give way?
      If you have poor visibility, the worst thing you could do is to change your position suddenly and make yourself unpredictable to other drivers. Very unreasonable.
      - neosin on 25/06/2019 - 16:47
        
        -1
        
        @Ughhh: Everyone is failing to see the issue!
        
        OP could not see the truck in the rear mirrors because the truck had no light on in addition to the severe weather conditions!
        
        If OP had waiting another 20 sec to merge, would it have made a difference if he couldn’t see the truck???
        
        If the truck had lights on, OP would have seen the truck before merging.
        
        The fact that OP indicated for a good 5 sec would suggest he took care before he tried to change lanes.
        
        Ughhh on 25/06/2019 - 16:53
        
        @neosin: Try using that excuse when you hit a pedestrian crossing at night.
        
        "I couldn't' see you, its your fault, you should walk based on weather and road conditions, wear a hi vis next time!"
        
        If you change lanes, you make sure the other lane is clear. If OP couldn't see, as you suggested,stay in your lane or pull aside, you don't change lanes for no reason, while travelling at walking speeds on a 100km/hr road.
        
        Typical16-bitEnjoyer on 25/06/2019 - 17:14
        
        +4
        
        @neosin: Merging lanes at half the speed limit in poor visibility is not taking "care"
    - j0hnd0e on 25/06/2019 - 23:36
      
      +3
      
      Are you serious? The car veered into the truck's lane for no good reason at all. His lane was COMPLETELY CLEAR.
  - neosin on 25/06/2019 - 16:41
    
    99% of people here are forgetting that the speed sign is a speed LIMIT! It is not a speed target!
    
    If a truck driving 100/100kph plowed into heavy traffic on the freeway because he couldn’t stop in time, would the people stationary be at fault or the truck driver?
    
    A driver is responsible at adjusting speed based on road conditions, if the speed limit says 100, it doesn’t mean drive at 100 under all circumstances! It is a LIMIT not a TARGET!
    - pegaxs on 25/06/2019 - 17:34
      
      +1
      
      If a truck… plowed into heavy traffic…
      
      This comparison is irrelevant. OP moved lanes and pulled in front of a moving truck. The truck didn't hit OP's stationary car in OP's lane. That is covered by a whole different set of rules. Your example is in no way even remotely comparable to OP's circumstance. I'm sure there is a name for this logical fallacy.
      
      The point is, it is a limit. And the sheer fact that it is a limit means that so long as the truck was beneath this limit, the truck is legally entitled to drive at that speed. There is no law that says "if rain, reduce speed by 40%". I am not denying that the truck driver could have slowed down, but it is a limit and providing the truck driver isn't breaking that limit, they are quite within their rights to travel at a speed they were.
  - nith265 on 25/06/2019 - 17:15
    
    +2
    
    Not breaking a law does not make you immune from negligence. There is no specific regulation saying you need to slow down in the rain but failing to drive to the conditions and to anticipate the errors of others can definitely make you negligent.
    
    The fact that other cars have decided to pull over is indeed a fair indication of what a reasonable action might be in the circumstances. The truck driver had clear sight of all the cars under the bridge but seemingly didn’t adjust his speed even then. I reckon OP would have a reasonable chance of pursuing this line of argument.
    
    However, the problem for OP’s is their own actions are so erratic and negligent it’s hard to see it making too much of a percentage dent into the $42k. Plus they’ll need to pay a lawyer to find out.
    - Typical16-bitEnjoyer on 25/06/2019 - 17:16
      
      and to anticipate the errors of others
      
      No.
      - nith265 on 25/06/2019 - 17:27
        
        @Typical16-bitEnjoyer:
        
        No
        
        Yes
        
        pegaxs on 25/06/2019 - 17:46
        
        +1
        
        @nith265:
        
        Not breaking a law does not make you immune from negligence.
        
        But it sure helps in court. In this case, I would rather be the truck driver than the car driver…
        
        There is no specific regulation saying you need to slow down in the rain
        
        Well, until there is, any other point you make about slowing down in the rain is moot.
        
        The fact that other cars have decided to pull over is indeed a fair indication
        
        Fair indication of what? Do you know why those cars were pulled over? Or you just making assumptions to suit your narrative? Could have been anything from vomiting kid to flat tyre to electrical issues. You were not in those vehicles, so you don't get to say.
        
        The truck driver had clear sight of all the cars under the bridge
        
        More assumptions. Were you the truck driver? His assumption could have been that they were off the road and that OP wasn't going to just randomly change lanes into his truck.
        
        didn’t adjust his speed even then
        
        Didn't have to. Again, no law to say you must slow down.
        
        and to anticipate the errors of others
        
        I'm with zeggie. No.
        
        It's a long bow to draw to find the truck driver negligent because of the random actions of the car driver. There is a reasonable assumption that people driving on the road will obey the laws. OP broke the road rules and merged into the right lane. In doing so, broke several laws. Fail to give way and not using the overtaking lane to overtake are a few that come to mind. The truck driver was at or under the speed limit, was overtaking in the overtaking lane. The only negligent one in this situation is OP.
        
        I like your optimism, but for the sake of OP, don't become their lawyer.
        
        nith265 on 25/06/2019 - 19:01
        
        @pegaxs: lol not optimistic at all - OP is screwed, we’re just arguing over varying degrees of screwedness. Trying to explore what options they might have.
        
        Well, until there is, any other point you make about slowing down in the rain is moot.
        
        Civil liability is not strictly linked to road laws so not moot at all. It’s dangerous (negligent even) driving a truck at speed in the rain, especially when there are cars stopped on the side of the road.
        
        Do you know why those cars were pulled over?
        
        What's your explanation? It's obvious and is a fair assumption. Unbecoming of your OzB stature to make out like it’s even in question here.
        
        The truck driver had clear sight of all the cars under the bridge
        
        Well we can (could earlier!) see it, so should have they. If he couldn’t see ahead he should have slowed down
        
        to anticipate the errors of others
        
        OK that’s not literally true – the legal term is “foreseeability”. If it’s reasonably foreseeable that something might happen then you have a duty of care to act accordingly. The truck driver could see something was up and it’s reasonable to expect them to have slowed – that might suffice to make him partially at fault.
        
        The thing is maybe OP’s suicide merge negates a lot of the truck driver’s negligence. That the truck driver tried to swerve would also work in the truck’s favour as it at least shows they saw OP.
        
        … don't become their lawyer.
        
        Hey I’m in here fighting for OP – zeggie wants to throw him under a truck (again!). If OP had insurance this is the angle their lawyers would be taking in negotiations.
        
        ankor on 25/06/2019 - 20:29
        
        @nith265: All of this costs real money to the OP if he wants to challenge it and find that out.
      - Vote for Pedro on 25/06/2019 - 18:20
        
        +4
        
        @Typical16-bitEnjoyer: One thing I’ve learnt from riding a motorcycle is to always ride like the other vehicles are going to do something stupid.
        
        Typical16-bitEnjoyer on 25/06/2019 - 18:47
        
        +1
        
        @Vote for Pedro: Of course. I ride as well.
        
        Anticipating the actions of others is for self preservation.
        
        Nith265 thinks not doing so makes you somehow negligent. This I disagree with.
        
        nith265 on 25/06/2019 - 19:07
        
        @Typical16-bitEnjoyer:
        
        Nith265 thinks not doing so makes you somehow negligent. This I disagree with.
        
        The fictitious “reasonable person” of civil law is expected to act and drive with caution. We all know there are “idiots on the road” so it’s unreasonable to drive with the assumption that no one will ever break a road law or do something unpredictable.
        
        If an event was reasonably foreseeable then you could be found to be negligent.
        
        Typical16-bitEnjoyer on 25/06/2019 - 19:19
        
        +1
        
        @nith265: I challenge you to find one solid example of an event that was reasonably foreseeable that someone was found to be negligent. I'm not sure you understand how this works.
        
        nith265 on 25/06/2019 - 23:24
        
        -1
        
        @Typical16-bitEnjoyer:
        
        I challenge you to find one solid example of an event that was reasonably foreseeable that someone was found to be negligent. I'm not sure you understand how this works.
        
        I know you’re smarter than the question makes you appear but your request is like asking for an example of arson that involves a fire.
        
        “Reasonable foreseeability” is so fundamental to the tort of negligence it would be better for you to find ANY example of negligence that doesn’t include it.
        
        To take you all the way back to high school fundamentals and the 1932 case that set the precedent for establishing our modern day laws of negligence and duty of care: Donoghue v Stevenson – “The snail in the bottle" case. From the judgement:
        
        ”You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour….”
        
        So please I challenge you to find a case example of negligence that doesn’t include an event that could be reasonably foreseen.
        
        Typical16-bitEnjoyer on 25/06/2019 - 23:39
        
        @nith265: Well. That post proved you have absolutely no idea what you're on about and just googled for help.
        
        What duty of care does the truck driver owe to OP?
        
        nith265 on 26/06/2019 - 00:01
        
        @Typical16-bitEnjoyer:
        
        Well. That post proved you have absolutely no idea what you're on about and just googled for help.
        
        Does it? Please explain what I said that you don’t agree with it. (indeed I had to google the snail quote I hadn’t committed it to memory)
        
        I asked the same of you in another thread you left unanswered - how about you do some explaining instead of vaguely alluding that I’m wrong?
        
        What duty of care does the truck driver owe to OP?
        
        To drive reasonably given the conditions. The same duty of care that OP owes the truck. Pretty clear OP has failed his duty of care. Given the speed the truck was driving in the conditions and all the cars stopped under the bridge maybe the truck driver failed in some of their duty too.
        
        CMH on 26/06/2019 - 01:15
        
        @nith265:
        
        To drive reasonably given the conditions. The same duty of care that OP owes the truck. Pretty clear OP has failed his duty of care. Given the speed the truck was driving in the conditions and all the cars stopped under the bridge maybe the truck driver failed in some of their duty too.
        
        My argument would be that the truck had clear vision of what's ahead, enough to stop for ANY obstacle that WAS ALREADY on the road. Someone pulling out for no reason is not to be expected no matter the current condition. Could be a perfect sunny day and if OP pulled out it would have had the same outcome.
        
        nith265 on 26/06/2019 - 12:46
        
        -2
        
        @CMH: I mostly agree with you - I guess I just enjoy trying to think through and find an angle
        
        OP is massively at fault, but truck driver still owes everyone on the road a duty of care and was driving pretty recklessly in the conditions. Would a court accept that there is causation between the truck driver’s negligence and the accident? I think they might.
        
        CMH on 27/06/2019 - 00:47
        
        @nith265:
        
        truck driver still owes everyone on the road a duty of care and was driving pretty recklessly in the conditions.
        
        I think you still have to prove he was driving recklessly.
        
        He had ample space ahead of him to stop, he can see a good distance ahead, his truck is (assumed) in good condition…
        
        As previously mentioned, bad weather isn't really a factor, other than the fact it will affect your vision and stopping distance among other things. These issues were taken into account by the truck as mentioned above, so unless you can come up with a specific reason why (other than the unpredictability of other drivers, in which case you could use that defense in ANY collision) there's no reason.
        
        nith265 on 27/06/2019 - 09:21
        
        @CMH:
        
        He had ample space ahead of him to stop, he can see a good distance ahead, his truck is (assumed) in good condition…
        
        Agree 100% but he could also see that there are cars stopped by the side of the road ahead
        
        bad weather isn't really a factor…
        
        Disagree.
        
        a specific reason why…
        
        Specifically the weather was as bad as it can get but the truck driver doesn’t appear to have adjusted his driving at all, despite other drivers deciding its so dangerous they've pulled over.
        
        Again though I pretty much agree that OPs actions were so bad it would very likely cancel out all/most of the negligence of the truck driver. I mainly chimed in in objection to the repeated “I wasn’t breaking a road law so I cant be at fault” Brolaw that infests OzB – everybody has to drive defensively and with “reasonable care” - what that is changes depending on conditions.
        
        If he was insured his insurers might give it a go and maybe negotiate lower – he’s not and to find out will cost him in legal fees so this is all just a thought experiment really
        
        CMH on 27/06/2019 - 09:56
        
        +2
        
        @nith265:
        
        Specifically the weather was as bad as it can get but the truck driver doesn’t appear to have adjusted his driving at all, despite other drivers deciding its so dangerous they've pulled over.
        
        Like I said, you adjust driving in bad weather due to the effects of said bad weather:
        longer brake times = bigger space between vehicles
        lower visibility = slower speed
        water making the roads slippery = slow down more on corners
        etc.
        
        My point is that bad weather alone isn't a reason, and I would argue by saying the truck driver has taken these points into account and driven accordingly.
        
        Also a point is that even at 60kmph the truck would still have collided with OP… At what point would you claim the truck driver has adjusted his driving enough for the weather?
        
        Again though I pretty much agree that OPs actions were so bad it would very likely cancel out all/most of the negligence of the truck driver.
        
        Noted, and the above is really just academic obviously.
        
        pegaxs on 27/06/2019 - 12:56
        
        @nith265:
        
        despite other drivers deciding its so dangerous they've pulled over.
        
        Speculation. You don't know the reason the other drivers were pulled over. Stop trying to inject this as a factor in determining the conditions and how others should drive. You were not in those cars and you have no idea why they are pulled over. It could be totally irrelevant to the weather. And even if this were the case, these people have no bearing of what others perceive as safe. It's only "their" level of acceptable risk, not anyone else's. It's not the magical yard stick you're tying to make it out to be.
        
        And it's your opinion only that dictates what you believe is "reasonable care*. You are not the truck driver, you were not OP and you were not on that section of road at the time. Stop trying to force your ideas of what "should" have happened and deal with what "did" happen.
        
        There is no law or rule or legislation that says the truck driver has to slow down in the rain. There is, however, a law that says, if you are changing lanes, the big arse truck in that lane gets to go first. Until there is a law that covers weather conditions and driving, then your point here is moot.
        
        The truck was in the overtaking lane, away from the parked cars and over taking cars in the slower lane. Unless the truck driver had a crystal ball, there is no way to predict what OP did. Most reasonable drivers would work based on current legislation and expected behaviour. That is, OP would have stayed in their own lane and give way before merging.
        
        And stop trying to project what you determine to be "reasonable care". What you think is safe, is certainly not someone else's. How you perceive it is not law and just because you want it to be, doesn't make it so. It's only your "perception". And unfortunately, and thankfully, your "perception" isn't law… Unless this is North Korea and you're the supreme one.
        
        nith265 on 27/06/2019 - 14:30
        
        -1
        
        @pegaxs:
        
        You don't know the reason the other drivers were pulled over.
        
        Even without knowing the exact reason why (and we do know don’t we…), we saw from the video that several cars had stopped ahead. A reasonable driver would slow down in anticipation for that reason alone
        
        …these people have no bearing of what others perceive as safe…
        
        4-5 other cars thought the conditions too unsafe to drive in - I'm happy to base my assessment of the reasonableness of driving at speed in the rain, in a truck on their perceptions in this case (unless as you feel they'd all stopped for a picnic)
        
        And it's your opinion only that dictates what you believe is "reasonable care"…
        
        Yes it's my opinion that slowing down in the rain is showing “reasonable care” to other road users
        
        There is no law or rule or legislation that says the truck driver has to slow down in the rain.
        
        Well there is Dangerous Driving:
        “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”
        
        As I may have said before, regardless not breaking a road law doesn’t mean they cant be found negligent
        
        pegaxs on 27/06/2019 - 15:10
        
        @nith265:
        
        and we do know don’t we…
        4-5 other cars thought the conditions too unsafe to drive in
        
        No we don't and you don't know what they were thinking. Absolute speculation. You don't know and can't just make up your own reason why they were stopped. I put it to you, since we are speculating, that why did they not move up under the bridge to escape the weather? You can't take your own observations and make them fact because it's what you "think".
        
        I don't know what the hell they were doing parked there. The rain wasn't that heavy. Likewise, you don't know what the hell they were doing there, but throwing a guess at it doesn't make it fact.
        
        And the truck wasn't driving dangerously. It was within its own lane and at/under the speed limit. Now, what OP did could be considered dangerous driving.
        
        If you can provide a law or road rule that says travelling at or under the speed limit, in the rain" is considered "dangerous driving" then I'll be happy to listen, but until then, it's just your "opinion"…
        
        Typical16-bitEnjoyer on 26/06/2019 - 08:42
        
        +2
        
        @nith265:
        
        Does it?
        
        Yes it does. How is OP in any shape or form relevant to Donoghue? There is no duty of care like in this - this is their first encounter and no link between them until this event. Now had you quoted Nettleship then maybe we could have had a discussion. But for the reasons below that discussion would be swift.
        
        in another thread you left unanswered
        
        Unanswered? I specifically said when you can answer both of those questions I'll entertain continuing this conversation.
        
        To drive reasonably given the conditions.
        
        Oh it's the vibe is it Denis? https://imgur.com/a/yDX3Gdq
        
        No. The truck driver's duty of care extends to only that of an ordinary driver. What action did the truck driver do that was abnormal? They were driving on their merry way, didn't change lane, had no chance to react to OP.
        
        Now - what action did OP do that was abnormal? Um, merged lane into the path of another vehicle on the freeway, in the pouring rain, doing likely less than half the speed limit.
        
        What a ridiculous argument.
        
        nith265 on 26/06/2019 - 12:50
        
        -1
        
        @Typical16-bitEnjoyer:
        
        How is OP in any shape or form relevant to Donoghue?
        
        Donoghue underpins all negligence torts and duty of care. Your earlier question showed you didn’t understand it so I thought it prudent to bring it up.
        
        Now had you quoted Nettleship…
        
        It sets precedent of how contributory negligence is ruled which is what I’m getting at - glad you’re with me! (if you meant something else @zeggie please again stop with the vague alluding)
        
        There is no duty of care like in this - this is their first encounter and no link between them until this event.
        
        I’m sorry but you are so incorrect I guess I can assume you’re trolling. Every road user owes every other road user a duty of care - indeed a truck driver has a greater duty of care because of the potential harm they could do. There’s no need for an earlier link between parties prior to a crash – do you think a duty of care only exists on the road when 2 drivers are previously known to each other and entered into a contract?
        
        The question for the truck driver isn’t if a duty of care exists (it does), it would be of reasonable foreseeability and causation. Was it reasonably foreseeable that OP would turn like that, could the truck drivers actions of not slowing be partially the cause of the accident. I say yes but as I’ve already acknowledged OP’s own actions are going to massively reduce his negligence (maybe even to zero)
        
        Typical16-bitEnjoyer on 26/06/2019 - 16:14
        
        +2
        
        @nith265:
        
        Donoghue underpins all negligence torts and duty of care.
        
        Duh. Well aware. Had you actually read my question, I asked you how it is relevant to Donoghue - it isn't. Whilst it is the original landmark precedent it doesn't concern driving at all. Many well known recent decisions, of which I quoted one (Did you read it?), are far more relevant than jumping back to Donoghue.
        
        So are you Denis?
        
        I’m sorry but you are so incorrect
        
        Hardly.
        
        Stevenson had a far higher duty of care than an ordinary driver. Did that fly over your head? The rest of your paragraph is misconstrued babble.
        
        do you think a duty of care only exists on the road when 2 drivers are previously known to each other and entered into a contract?
        
        Straw Man. Nice try but not taking the bait.
        
        Every road user owes every other road user a duty of care
        
        The truck driver is only required to provide a duty of care equivalent to an ordinary driver.
        
        OP is also only required to provide a duty of care equivalent to an ordinary driver.
        
        Which one merged lane, in poor visibility and poor weather, doing approximately half the speed limit, into the path of an vehicle in an adjacent lane?
        
        Was it reasonably foreseeable that OP would turn like that,
        
        Is it reasonably foreseeable that a vehicle will merge into your lane, on a freeway, in poor weather, driving at half the speed limit?
        
        No.
        
        What sort of precedent would that make? Would essentially force every motorist in the country to drive at 40km/h in poor weather on a freeway in fear of some fool doing something, anything that could impact you.
        
        Is it reasonably foreseeable that merging into an adjacent lane, on a freeway, in poor weather, without checking your mirrors and driving at half the speed limit may cause you to impede another driver?
        
        Yes.
        
        nith265 on 27/06/2019 - 07:59
        
        @Typical16-bitEnjoyer:
        
        Stevenson had a far higher duty of care than an ordinary driver.
        
        The truck driver is only required to provide a duty of care equivalent to an ordinary driver.
        
        If you’re comfortable with these 2 quotes representing your understanding of duty of care then not much I can add. Ironically the Nettleship case you brought up meant everybody is treated as an “ordinary driver” so it’s nonsensical referring it here (but if you think it helps make you appear very smart then OK).
        
        For the rest you miss the point entirely of this thread node. We’re not talking about OP not being negligent - he is and there’s nothing he can do to change it. OP’s only angle is for the claimant to be shown as also contributing to the accident.
        
        What sort of precedent would that make?
        
        If a court ruled on this and found there was indeed contributory negligence from the truck driver no precedent gets made saying you can turn randomly into traffic. It would simply be confirming the point that driving a truck at speed, in the wet, when other road users have pulled over is indeed negligent.
        
        pegaxs on 27/06/2019 - 09:15
        
        +2
        
        @nith265: Yeah, I’m not buying it. Your whole diatribe hinges on the random action of OP and trying to define what they did as foreseeable. It was random and not required. It was also made on the blind side of the truck, giving the driver no real indication that it had happened until the impact was felt.
        
        The other factor you are clinging to is the conditions. There are no road rules written that express what a truck must do while travelling in altered weather conditions. What there is, is a very clear set of rules on how to change lanes. While the truck driver does owe a duty of care, as do all drivers, this does not extend in the case of a driver randomly entering their lane when there was a reasonable expectation that OP would have stayed in theirs.
        
        You can dress it up any way you like, but the truck was driving legally. They were in their own lane, travelling at or under the speed limit. OP then drove their car into the path of the truck. It would be up to you to convince the court that had the truck driver been driving slower, this would not have happened, and I put it to you, had the truck been doing 50km/h and OP made that change, the accident would still have happened.
        
        Negligence would only extend if the truck driver was found to be doing something outside the normal expectation of driving. Feet on the steering wheel, using their phone, sleeping, reading a newspaper, swerving on the road. But it’s a really tough call to draw negligence at the truck driver obeying the road rules and getting driven into by someone randomly changing lanes for no reason. Well, unless you have a crystal ball, which is what you seem to be suggesting…
        
        The other factor to consider is that the truck driver may have decided to hit the car as an act of “best outcome”, as the act of trying to avoid OP may have caused a lot more damage to the truck or the cars parked on the side of the road.
        
        And you keep making assumptions on why those other cars were stopped. You say that they are stopped because of the weather, when in fact you have absolutely no proof on why they were stopped. This has nothing to do with going to prove any negligence on the truck drivers behalf. So, unless you know absolutely why these cars were pulled over, then you can use their position, but until you know why, then they are irrelevant.
        
        The truck driver was giving these cars a wide berth by being in the furthest lane from them. Using your logic, the parked cars contributed to the accident because OP felt the proximity of these parked cars gave rise to the requirement to change lanes. If they were not parked there, OP would not have changed lanes, ergo, no accident. What is their contributing negligence? If they are indeed parked as you insist they are, are there not laws pertaining to parking in the breakdown lane/shoulder, and if so, are these people parked there, as you are insisting, not negligent and adding to the accident? It looks like a rabbit hole to me, Alice…
        
        nith265 on 27/06/2019 - 13:16
        
        -1
        
        @pegaxs:
        
        Your whole diatribe…
        
        Thanks for lowering the tone - nice..
        
        It was also made on the blind side of the truck, giving the driver no real indication that it had happened until the impact was felt.
        
        I actually think that on this you are correct and this point would swing it 100% in truck drivers favour. Regardless of how negligently I think truck was driving, there was nothing they could have reasonably done to avoid it. I noted earlier also you can see him swerve which would count strongly in the truck favour – it shows he was attentive and aware of OP.
        
        The other factor you are clinging to is the conditions. There are no road rules written that express what a truck must do while travelling in altered weather conditions.
        
        I fear you have a fundament misunderstanding of how negligence on the road works. I cant express it any clearer than I did earlier - not breaking a road law does not mean you can’t be found negligent. Regardless of civil law if OP died the truck driver could have been charged with dangerous driving.
        
        Negligence would only extend if the truck driver was found to be doing something outside the normal expectation of driving
        
        Negligence is proven if he fails his duty of care to other road users. To fulfil his duty of care the truck driver needs to drive reasonably given the conditions. It is a normal expectation for someone to drive slower in the rain. The truck driver didn’t appear take any action that would have helped avoid an accident.
        
        …making assumptions on why those other cars were stopped…
        
        You saw the video, you saw the rain, and you know that’s why they were stopped, we all do, it reflects poorly on you to keep suggesting it needs to be proved.
        
        If they are indeed parked as you insist they are, are there not laws pertaining to parking in the breakdown lane/shoulder, and if so, are these people parked there, as you are insisting, not negligent and adding to the accident?
        
        You need to move on from thinking road rules as being the key determinant. If it’s a no parking zone they could get a parking ticket. Does that in turn mean they are civilly negligent? No (ignoring the bigger issue of causation) because they have acted reasonably, they realise to keep driving in the conditions could be considered unreasonable and dangerous.
        
        But like I said above, OP's negligence probably out weights all of this. If he was insured I feel his insurer would use some of what I've said to negotiate a lower settlement.
        
        pegaxs on 27/06/2019 - 14:37
        
        +3
        
        @nith265:
        
        I fear you have a fundament misunderstanding of how negligence on the road works
        
        I'm not a lawyer, no, but I do know that anyone would be hard pressed attributing any negligence in this case to the truck driver, as the video gave the impression the truck driver was driving within the confines of the road rules. OP on the other hand… Negligence is the failure to act, or the failure to act appropriately, causing damage. The truck driver was at or under the limit and in the correct lane for overtaking. There are no laws that pertain to weather conditions and driving. Now, if the truck driver was over the speed limit or partially into OP's lane, you have a case. Here, you cant attribute a random act like OP merging into the trucks lane, on the blind side of the truck and expect the truck driver to have had a crystal ball.
        
        To put it another way, remove the rain, but exactly the same sequence of events, you are still going to tell me the truck driver is negligent?
        
        You saw the video, you saw the rain, and you know that’s why they were stopped, we all do
        
        No, no we do not know. As I said, it is pure speculation. Why pull up in the rain and not 100m further down under the overpass if it were weather related? You do not know why they were stopped and saying it was because of the rain is a guess. You are clutching at straws. And either way, unless they were partially into OP's lane, there was no reason for OP to move lanes, being the slower vehicle and not overtaking anything.
        
        You need to move on from thinking road rules as being the key determinant
        
        Then what is their purpose? ReVeNuE rAiSiNg?? The road rules are there to delineate right from wrong. Truck driver was adhering to the road rules and OP did not. Why do we have road rules, if not to use to determine who was in the right and who was in the wrong (and revenue raising).
        
        And the parked cars, parked illegally are not a contributor to OP moving (to which OP mentioned), but the legally abiding truck driver is somehow negligent? I don't get that logic. If the truck driver is to share the blame for doing everything within the limits of the road rules, then sure to Christ, the illegally parked cars have also some contributory negligence??
        
        At this point I don't know if you are trolling, playing devils advocate or just genuinely believe that the truck driver is partially to blame…
        
        nith265 on 28/06/2019 - 09:59
        
        @pegaxs: Jeeze did you miss the bit in my earlier comment where I said you’d probably convinced me with your point of OP’s actions!
        
        So yes I am playing Devils Advocate and it still troubles me that you (and all of OzB) think that the following the letter of Road Laws is enough to escape negligence on the road – it’s not.
        
        Please consider this case Sibley v Kais [1967] , High Court of Australia
        
        At an intersection one car was meant to give way to the right but didn’t
        
        Another car obeyed all road law and hit the car that failed to give way
        
        The car that had right of way was deemed 25% at fault
        
        “On appeal, the Full Court in substance held that the trial judge had erred in allowing the traffic rule as to giving way at intersections to determine the question whether the applicant was guilty of negligence in entering the intersection without having sooner looked for traffic approaching on his left-hand side.”
        
        I’m not a lawyer either but there is enough precedent to mean that OP seeking contributory negligence from the truck driver isn’t hopeless .
        
        The road rules are there to delineate right from wrong.
        
        Yes in criminal law. For negligence they are considered only as one of the factors of constitutes reasonable behaviour.
        
        I hope you now accept that my “opinion” on contributory negligence is actually fact.
        
        CMH on 28/06/2019 - 10:34
        
        @nith265:
        
        Regulation 601 provides that :
        
        "Where any of these regulations require a driver to give way to a … vehicle, the requirement takes effect when there is a reasonable possibility that, if he proceeded, his vehicle would collide or come into conflict with, or create any other dangerous situation with regard to, that person or vehicle ; and, in that event, he is obliged to slow down to such an extent, or, as the circumstances may require, stop and
        remain stationary for such time, as may be necessary to allow the … vehicle to continue on … its course."
        
        Looks like WA has special regulation the judge could rely on for that case.
        
        What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, [should he find another vehicle] approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.
        
        I interpret the above as "If I see a vehicle coming, and I did nothing and a collision occurs, I did not exercise reasonable care".
        
        Again, like I said blaming "weather" alone isn't enough, you need to be more specific about how said weather has affected driving, and then you'll need to show that this has contributed to the accident.

Accident with a Truck (Uninsured)

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