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Are cyclists “mere obstacles”? A rejoinder

A reader who attended court has criticised my story on the trial of truck driver Luke Stevens who was found not guilty of causing the death of cyclist Richard Pollett. Here’s her response

Ghost bike in memory of Richard Pollet (photo: Brisbane Times)

I got an e-mail last week from final year law student, Fiona Thatcher, taking me to task for the article I wrote back in May, Are cyclists ‘mere obstacles’ to motorists?, about the death of Qld cyclist Richard Pollett. Mr Pollett was run over by a cement truck driven by Luke Stevens.

Mr Stevens was subsequently charged with dangerous driving causing death and was acquitted by the jury. The decision was widely condemned by cyclists as the comments on the article show. It led directly to calls for a mandatory one metre minimum passing distance and was a key factor in the Qld Parliament’s decision to set up an Inquiry into cycling issues.

Ms Thatcher thinks it’s disgraceful that the media (and presumably cyclists too) are “braying for Stevens blood when he objectively did nothing wrong”. She says my commentary was ignorant of both the facts and the law.

You can’t write about topical policy issues without copping criticism from time to time, so I’m used to that. I’m happy to put an alternative point of view on an important and emotive issue like this. What’s significant about Mr Thatcher’s perspective is she says she observed much of the trial first hand. Here with her permission is her letter (my comments follow):

Dear Alan,

I realize this letter is overdue, but I was unaware of the news articles on the death of Richard Pollett until today, when my fellow students and I were discussing the court case surrounding the incident on Moggill rd in 2011.

I am a final year law student at QUT. For our Evidence class, we were told to visit the District or Supreme Courts and write up a court report. As you may have already guessed, many of us chose the R v Stevens case, which is why I’m writing to you today. It was eagerly noted by the Courier Mail at the time that the courtroom was packed — but that was only the result of the timing of that particular Evidence assignment. That, to me, marked the beginning of the highly misleading way in which the media would cover the case.

I should add that not only did I sit through the entirety of the prosecution’s case, but I did well on that assignment, so I consider myself somewhat able to comment on the matter.

I would like to point out, first and foremost, how grossly your articles have represented that entire situation. The acquittal of Luke Stevens was the proper and just outcome, for several reasons.

Your commentary was ignorant, if not merely of the facts of the case, but of the law. I’ll quote one particularly offensive part of your articles – ”It’s time the law stopped treating cyclists as mere obstacles to motorists.”

These are the facts:

  1. When approaching Pollett on Moggill rd, Stevens was surrounded by several cars, one of which was impatiently following him closely behind. To his immediate right were other cars. He was described as being ‘boxed in.’
  2. He noted Pollett, took his foot off the accelerator, prompting the exhaust brake. He then moved into the far extremity of his lane.
  3. It was the middle of the day, the sun was out, Stevens was not tired, had no alcohol in his system, and was in good spirits. He was travelling well below the speed limit at the time of the collision.
  4. When Stevens moved to pass Pollett, the latter was cycling confidently. He did not appear intimidated by the truck beside him. Pollett in fact had an opportunity to turn out of Moggill road when the truck was beside him but chose not to do so.
  5. The road narrowed at some point between where Stevens first saw Pollett and when the collision occurred. There was no way for Stevens or Pollett to know that the road would narrow. The road has since been widened by council.
  6. It is unclear how Pollett came from his bike. While the cement truck may have toppled Pollett, it is equally possible that Pollett fell of his own accord, ie struck the gravel on the road or hit the gutter.
  7. As causation could not be established, the prosecution essentially required the jury to convict on the basis that a driver of a vehicle — any vehicle, should drive so far away from a cyclist passing that even if a cyclist were to fall of his own accord, no damage would come to the cyclist. This is an impossible proposition to assert and would very probably be rejected upon appeal even if the jury were to convict.
  8. The jury had no real alternative but to acquit. It was the logical and right response.

Not having been at court to watch the case unfold, you were at a serious disadvantage when it came to reporting the truth. You did not see Stevens, the pale horror on his face when images of Pollett’s tarp-covered body were displayed to the court. You did not listen to expert testimony, which pointed out the flaws in the road’s design.

You did not watch the judge roundly criticize the prosecution, who struggled with what was clearly a hopeless case.

When he realized he had struck Pollett, Stevens pulled over at a road stop and ran back to the site. He tried to run to the body but was held back by witnesses before collapsing. He was choked and tearful during the police interview. Since the incident, he has gained weight and looks much older. Undoubtedly, his life is irreversibly affected. For journalists to be braying for Stevens blood when he objectively did nothing wrong is disgraceful. That is a real person you are talking about. He could have been any one of us. He was driving carefully. He was aware of Pollett and took precautions. I just can’t properly express my disbelief at the damning tone the media has taken about this case.

Pollett’s family were in the court that week. They were obviously beyond distraught. It was a terrible tragedy that took their son — but an accident, and no more.

It is a disservice to our justice system to make uninformed, sweeping remarks about particular cases. I think it is so important for the integrity of journalism that writers read court transcripts and judgments prior to reporting on cases. It would be better for Crikey, and other news sites, to employ staff with legal backgrounds who can engage in the often complex court process, so as not to gin up ‘outrage’ where none is warranted.

Yours sincerely,
Fiona Thatcher

Let me say first up, as I indicated in the article, the judgment wasn’t available at the time I wrote the article. Nor do I see much in Ms Thatcher’s version of the events that wasn’t covered in the article or in the links to the media coverage I provided (the Courier Mail’s on-line coverage was quite detailed).

Her account of the salient facts raises a number of questions in my mind e.g. couldn’t Mr Stevens see that the road narrowed from his elevated position? However these questions were no doubt aired in Court and the jury decided that Mr Stevens was not guilty of the charge.

I don’t think cyclists are after Mr Steven’s blood (or that my article was couched in that way). The comments here and in other forums indicate many think he made a bad decision. Some think he might lose a civil action for negligence if one were brought.

But he was behaving within the law as it stands and was acquitted of the charge. It’s the law that needs to change.

What outrages cyclists is the verdict confirmed it’s legal for a large truck to overtake a cyclist in the same lane. It’s consequently legal to overtake so close that the vehicle might inadvertantly “topple” the cyclist (see point 6). It’s legal to leave so little clear space that a minor wobble on the cyclist’s part could possibly turn into a catastrophic accident, let alone enable the vehicle to avoid the cyclist in the event he or she should have a sudden unforeseen spill.

The verdict says motorists need not take special care around cyclists despite the latter’s vulnerability. In short, it says roads are for drivers, not cyclists. It prompts the perfectly reasonable question: are cyclists “mere obstacles”?

I think most cyclists want something like what Ms Thatcher calls an “impossible proposition” (point 7): that drivers should be obliged to leave enough space when overtaking such that the liklihood of a serious injury is minimised. That’s the idea behind the proposed one metre minimum rule.

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  • 1
    Strewth
    Posted July 20, 2013 at 7:49 pm | Permalink

    Ms Thatcher appears to have missed your point Alan. The legalities of this case aren’t really in doubt: the truck driver wasn’t doing anything contrary to current law, and it couldn’t be established beyond reasonable doubt that the truck driver’s actions caused Pollet to come off his bike. Cases like this turn on what is the community standard for reasonable behaviour, and in Australia it seems the standard is to try and pass a cyclist in the same lane even when it’s a tight squeeze.

    It’s very like that Derrick v Chung case in 2001, that confirmed motorists essentially have no special duty of care to pedestrians who may emerge onto the road without warning. Again, because it’s not standard practice in Australia to keep a look out for pedestrians while driving, the law doesn’t hold motorists reckless or negligent if they inadvertently kill someone while ‘driving with the traffic’.

    But of course your point was really about whether the law itself needs changing. It’s true, in Europe motorists are held to a much higher level of responsibility and are obliged to be a good deal more cautious than is the norm in Australia. These same cases would likely have had a different legal outcome in most of Europe.

  • 2
    mook schanker
    Posted July 20, 2013 at 8:52 pm | Permalink

    Strewth hit the nail on the head. Funny how some people just focus within the prism of the application of existing law.

  • 3
    Peter West
    Posted July 20, 2013 at 10:19 pm | Permalink

    In 2004, I did a course on responsible service of alcohol. This procedure had been largely determined by a case from 1997; Johns v Cosgrove & Orrs. The story, as I recall, is this. A patron (Johns, I presume) at the Chevron Hotel in Surfers Paradise – a regular – became intoxicated. He left the hotel and crossed the one-way, multi-lane road to the bus-stop. As a driver was approaching the stop, the patron suddenly lurched onto the road, across the first lane and into the second lane, where he was struck by the motorist. The motorist was held liable for the accident. Furthermore, the hotel was held to have been responsible for injuries to Johns in the extent of $126,000.

    Whether this judicial lunacy has been moderated by subsequent cases I do not know, but lunacy it is, both in terms of the liability of the motorist and the liability of the hotel and its staff.

    Perhaps Ms Thatcher would like to comment?

  • 4
    suburbanite
    Posted July 20, 2013 at 10:42 pm | Permalink

    I don’t think the letter adds anything useful to the issue except a first-hand report of the remorse the driver displayed.

    The fault lies in the dangerous design of motorised vehicles which protect the occupants at the expense of their awareness of their surroundings and of road conditions. Nearly every week I experience drivers overtaking too closely even when they have plenty of space and no oncoming traffic. They do this because they are either unaware of the size of their vehicles or as sometimes the case they think cyclists shouldn’t be on the road. The fact is that a cyclist was killed and the driver doesn’t know what happened. Perhaps if he hadn’t been cocooned he might have been more in control and someone wouldn’t be dead.

  • 5
    Peter West
    Posted July 21, 2013 at 12:10 am | Permalink

    Ms Thatcher’s logic, and the logic of the court, is mind boggling. It is not legal to drive so irresponsibly as to case the death of another road user. (See my earlier comment on the Chevron Hotel case.)

    Let’s have a look at the “facts.”

    1. The driver was “boxed in.” This language implies some onerous constraint on the driver, whereas in fact it simply means that he was unable to change lanes. It does not licence any change in the behaviour that would be expected, and does not licence a dangerous attempt to pass the cyclist.

    A car “was impatiently following him closely behind.” So he was being tailgated by a car. If a car is being tailgated by a cement truck, the driver might feel nervous. If a cyclist is being tailgated by a cement truck, he might also feel nervous. Is the truck driver supposed to be more sensitive to the impatience of the following car drive than the life and limb of the preceding cyclist?

    2. “He noted Pollett, took his foot off the accelerator, prompting the exhaust brake. He then moved into the far extremity of his lane.” He slowed, down, and then prepared to pass in the same lane.

    3. “Stevens … had no alcohol in his system… He was travelling well below the speed limit at the time of the collision.”

    IIUC, alcohol and excessive speed are aggravating factors in the offence. I may be wrong about this. It may be necessary for alcohol to be present for a conviction, but Ms Thatcher has not drawn our attention to this, so I presume not. Given that, alcohol is not an aggravating factor. Speed, I think, is a more problematical issue.

    4. “When Stevens moved to pass Pollett, the latter was cycling confidently. He did not appear intimidated by the truck beside him.”

    Oh my sainted aunt! What can one say about this piece of po-faced chicanery?

    Before Stevens moved to pass Pollett, he was cycling confidently. As he probably did 99.95% of the time he was on the road. He did not, yet, have a concrete truck squeezing him towards the kerb.

    But wait, the truck was beside him, before it moved to pass him. That’s pretty impressive. A space-time warp?

    However, Pollett cycled confidently in spite of the truck simultaneously behind and beside him, a circumstance which would have disconcerted many a lesser mortal.

    The highlight, though, is the rest of 4.

    ” Pollett in fact had an opportunity to turn out of Moggill road when the truck was beside him but chose not to do so.” Q.E.D.

    For more background, here’s part of the Courier-Mail report.

    “He cited the evidence of eye-witness Maxwell Roy Clothier, which contended that Mr Pollett may have come into contact with the cement truck near to the intersection with Blacon St – a straight section of road before the left-hand bend – and therefore ‘had the option’ of turning down it if he felt unsafe.”

    So, according to Ms Thatcher, the defence, the court system of Queensland, the jurors and Maxwell Roy Clothier, if a motorist, or a cyclist, or a pedestrian feels threatened by a looming concrete truck or any other imposing vehicle, it is incumbent on the motorist or cyclist or pedestrian to get out of the way. If such a person does not take this evasive action, and is subsequently killed or injured by the threatening vehicle, then it is – plainly – the fault of the person killed or injured.

    Keep in mind that bit about “Mr Pollett may have come into contact with the cement truck.”

    5. “The road narrowed at some point between where Stevens first saw Pollett and when the collision occurred. There was no way for Stevens or Pollett to know that the road would narrow. The road has since been widened by council.”

    As Alan Davies has already pointed out, who is going to see the narrowing first; the cyclist or the cement truck driver? Consequently, who has the responsibility to respond first to the changing road conditions?

    6. “It is unclear how Pollett came from his bike. While the cement truck may have toppled Pollett, it is equally possible that Pollett fell of his own accord, ie struck the gravel on the road or hit the gutter.”

    Oh my sainted aunt, again. Where’s our eye-witness? Paging Mr Clothier. “Mr Pollett may have come into contact with the cement truck near to the intersection with Blacon St.” That is, the confidently cycling Mr Pollett may have struck a glancing blow against the truck before the road narrowed. Note that it is the late Mr Pollett who “came into contact” with the truck, and not vice versa.

    However, Mr Clothier’s attention seems to have wandered. Perhaps he was “impatiently following,” and was too close to see any more of the incident. In any case, nobody saw nuthin’. Maybe Mr Pollett made another ill-advised attempt to force the truck out of his lane, and “came into contact with the truck” with greater force, resulting not as expected in the overturning of the truck, but in the fall of his bicycle. One of those freak accidents, I suppose.

    Alternatively, as the defence helpfully pointed out, he may have just fallen over. The confidently cycling Mr Pollett was suddenly abandoned by his confidence, and became the sort of wobbly beginner who rides into kerbs or falls over when traversing some gravel. What possible circumstances could have caused Mr Pollett’s confidence to desert him at that particular moment? It’s a mystery.

    7. “As causation could not be established, the prosecution essentially required the jury to convict on the basis that a driver of a vehicle — any vehicle, should drive so far away from a cyclist passing that even if a cyclist were to fall of his own accord, no damage would come to the cyclist.”

    Wasn’t it up to the jury to decide “causation?” Isn’t that a matter of fact? What the prosecution required of the jury was to decide that the driver was operating his vehicle in a dangerous manner.

    From Section 328A(4).
    “It is not necessary for the prosecution to prove that the dangerous
    operation of the motor vehicle was the sole cause of the deceased’s
    death or complainant’s grievous bodily harm. It is sufficient for it to
    show that the dangerous driving was a substantial or significant cause
    of that result.”

    From the C-M, “The jury heard Moggill Rd was narrow, winding and the width of the left-hand lane expanded and reduced between 3.1m and 3.6m near to the accident scene, without signage notifying motorists of the change.”

    At it’s widest, then, the lane is 3.6m. Allow 0.3m from the kerb, say 0.7m for the cyclist, and 1m for some minimum margin of safe passing. That’s 2m out of 3.6m. That’s 2m out of 3.1m. How wide was the concrete truck? 1.6m? 1.1m? The driver did not move to the “far extremity of his lane,” he overlapped the next lane, and then found himself in a narrowing road. You work it out.

    Ms Thatcher’s contention is point 7 is unsupportable, to put it charitably.

    Ms Thatcher did well in her assignment. One can only shake one’s head.

  • 6
    Alan Davies
    Posted July 21, 2013 at 12:34 am | Permalink

    @sara_stace asks (via Twitter): What would guilty verdict have resulted in? 6 month license suspension & $900 fine? See Driver caused cyclist’s death: Coroner.

  • 7
    Smith John
    Posted July 21, 2013 at 1:32 am | Permalink

    It’s not totally clear what inference Ms Thatcher wants us to draw from this collection of facts. I’ll assume the idea is ‘these points are evidence against culpability.’ I’ll comment on that basis.

    1. The fact that the driver was ‘boxed in’ is irrelevant. As a driver it is your absolute responsibility to keep a safe braking distance from the vehicle in front. You are not entitled to rear-end the vehicle in front simply because you yourself are being tailgated.

    2. If he prepared to pass in spite of being boxed in, then clearly he believed he could pass safely within the lane. So the fact that there were cars in the lane beside him is irrelevant. Or are we saying, ‘because the cars beside him prevented him from making a safe passing manoeuvre, he was entitled to make an unsafe one’?

    3. Irrelevant. Culpability relates to the events that caused the collision, not whether you were cheerful and sober five minutes, or indeed five seconds earlier.

    4. What is the intended inference please? Let’s change the details a little. ‘Your honour, my client punched an innocent passerby on the street, but his culpability is reduced because the passerby had the opportunity to turn down a side street to avoid him.’ Clearly irrelevant. It is particularly obnoxious the way the defence raised this point presumably to imply that the cyclist was somehow negligent. The cyclist was visible and was behaving predictably. He was fully entitled to continue travelling in his desired direction.

    5. Possibly relevant, but I confess to being sceptical. Google maps tells me that the kerbside lane for a long distance short of the accident point has a stable width of little more than the bare minimum for a traffic lane (about three metres). If the lane narrowed, it could only have been a tiny amount considering how narrow it was already. I would regard it as extremely reckless for a large truck to try to pass a cyclist wholly within the lane anywhere in this area. If the driver was boxed in at the side, he should have pulled up behind the cyclist and waited for the opportunity to make a proper passing manoeuvre. Again I stress that failing to do this is absolutely not excused by the fact that he was being tailgated.

    But anyway, let’s suppose that truck driver was reasonable in thinking he could pass wholly within the lane (at the point where he made that decision), but the road narrowed unexpectedly when they were already side by side, or at least at a point where it was too late for the driver to pull up behind the cyclist. So it was okay for him to run the cyclist off the road in preference to moving right with risk of collision with the cars on his other side? In other words, when the two of them were competing for the narrowing space, the driver had a superior entitlement to occupy it? Not sure about this.

    6. The only really relevant point. The implication is that a driver who kills a cyclist cannot be convicted unless there were other witnesses to the moment of impact, because it is always possible, however unlikely, that the cyclist independently slipped on gravel etc at exactly the wrong moment.

    Again, let’s change the details a little. ‘Your honour, I know it looks like my client knocked over the passerby, but there were no witnesses to the moment of impact, and we cannot exclude the possibility that the passerby happened to trip over just as he was passing my client.’

    Surely we must have some concept of how credible the ‘possibility’ is? But I acknowledge the difficulty. It makes it all the more necessary to legislate a minimum clearance beside when passing a cyclist. That would make it more likely that in a case like this the driver would treat the cyclist as any other vehicle and slow down behind him until there was an opportunity to pass safely.

    I’d welcome any further comment from Ms Thatcher on the points above.

  • 8
    Strewth
    Posted July 21, 2013 at 3:06 pm | Permalink

    Peter West #3: It appears in the Johns v Cosgrove case that the judge apportioned negligence in part against all parties: the patron, the hotelier and the motorist. We don’t know the facts of the case as the judgement isn’t online, so we can’t rule out that the motorist was found negligent for reasons other than just being in the wrong place at the wrong time: it’s conceivable she could have been found to be speeding or otherwise driving without due care.

    What we do know is that thanks to the High Court decision in the Derrick v Chung case, it’s unlikely a claim of negligence will ever succeed against a motorist who is driving ‘with the traffic’ under the speed limit and free of distractions – even if said motorist does hit a pedestrian or cyclist that they failed to see in time.

    Of course it must be kept in mind too that these civil liability cases in practice are always run by lawyers for insurance companies, and are more about defending the interests of the insurers than establishing guilt or innocence.

    With criminal cases it’s a higher standard of evidence: it has to be ‘beyond reasonable doubt’ rather than ‘on a balance of probabilities’. But it seems there’s clearly a case for law reform in favour of vulnerable road users.

  • 9
    Bill Bunting
    Posted July 21, 2013 at 3:07 pm | Permalink

    I have had the misfortune of witnessing a young girl being crushed under the wheels of a quarry truck in NZ and have made submissions on this type of situation.

    The fact is that in this instance, as described, the narrowing of the road represented a “merging lane situation”. The original NSW road regulations stated that “left lane gives way when merging”. What that means is that if the left hand vehicle is not clearly in front of the right hand vehicle then it must give way to the passing vehicle and merge behind it when there is no longer sufficient road for multi lane travel. In this case the cyclist should “take the road”. ie right indicate and move to the lane center for the distance of the narrowed road. If the truck was behind the cycle near the point of road narrowing …..and lets make it absolutely clear that if a driver cannot see the road ahead and be able to anticipate what will happen before his vehicle enters any section of road that person should not have a license…..it should have slowed to the cyclists speed to allow the cycle to take the road.

    That is what should happen under the intention of the rules of the road.

    Cyclists must also take responsibility for their casualties if they refuse to fit their bikes with basic safety equipment such a rear vision mirror. I have endless arguments with cyclists who somehow magically believe that they can “tell” what is coming up behind them and how close. Stunning stupidity. Stupidity considering how many cyclists continue to be struck from behind.

    When passing cyclists on the road I always attempt to maintain a 3 metre seperation depending upon the passing speed. The greater the speed the greater the separation distance. If I cannot maintain that separation then I slow to near the cyclists speed. It works very well.

    The other thing that should happen is that all trucks should have gap fill fairings (as seen on most tanker trucks) between the wheels to reduce the risk of obstacles (cyclists in this case) entering the undercarriage area of the vehicle.

    In my opinion in this case both the cyclist and the truck driver contributed to the accident. But also the establishment carries some responsibility for their confused thinking on the methodoligies for road sharing.

    The reality is that a person on a cyle is no less a being than a person diving a car or a truck. We are all still people,…individuals, getting around our living spaces.

    Equally a person on a pedestrian crossing is still a person, a human being, not an obstacle. My view on stopping for pedestrians is that I am going to get where I am going driving a car in very much the same time regardless of whether I stop for a few people on foot. But the people on foot can be disadvantaged to a far greater degree by being forced to wait for streams of vehicles. Where I can I give way to pedestrains at intersections or where traffic is slow.

  • 10
    Smith John
    Posted July 21, 2013 at 11:03 pm | Permalink

    Strewth #8: In Derrick v Chung the child darted out from bewteen parked cars. The motorist was driving reasonably in the circumstances and could not have been expected to see the child in time to avoid a collision.

    The judgment was not saying that ‘driving with the traffic’ would always be sufficient defence – it might not be sufficient defence if the danger was noticeable with enough time to react.

    Bill Bunting #9: There was no lane merging involved. Mogill Rd is four lanes throughout the relevant area. The reference is to a slight narrowing of the kerbside lane.

  • 11
    Bill Bunting
    Posted July 22, 2013 at 1:12 am | Permalink

    OK Smith John

    I was going on the quoted text. But I believe that what I said is still valid if accident scene is examined analytically.

    However now that you make me examine the situation very carefully, this accident was set up by a road marking fault. If you view the road from the satellite image you will see that it is not that the road narrows, but that the thoroughfare centre lane is off centre by about a metre. It does this at a slight bend in the road to the left which causes a progressive pinching of the curbside lane. To compound the situation the guttering at the site of the accident is of a very old variety with an overwide gutter flange which does not sit flush with the general road surface thereby creating a raised edge which could very easily cause a cycle wheel to lock into the groove created between the raised concrete and the bitumen edge. This can be clearly seen in the video of the scene taken of the awareness ride organised by local member Dr Bruce Flegg.

    Again this goes back to the merging traffic logic. Any vehicle has a “personal space no go zone” around it. If a cyclist is road sharing then this no zone has to be considered when deciding to pass from behind. In this case the truck driver failed to see the danger that he created for the cyclist. He clearly should have recognised the danger and slowed to the speed of the cyclist if the cyclist was ahead of him entering the pinch in the road. Three quarters of the way through the SMH video there is a shot of a cyclist entering the pinch with a car giving the cyclist nearly three metres clearence by moving to the centre line to pass, and a car right at the road pinch showing just how narrow the road is at that point as viewed from road level.

    This is an excerpt from Fleggs website just after the accident

    “Our road and transport system in this area is completely inadequate. Moggill Road is a major through arterial road carrying 55 000 cars a day and growing yet it has none of the features that would normally be part of such a major state arterial road. In places, notably where this tragic accident occurred, there is no shoulder whatsoever. Not only does this mean that other road users than cars have nowhere to go but of course also means that when accidents do occur there is no easy way of removing vehicles from the roadway, resulting in major dislocation. The road also has no bus lane, transit lane etc.”

    Having read more about this brilliant young man I can see why his loss is so deeply felt.

    My verdict? Truck driver at fault.

    It is not about punishments, it is about recognising where the failures are so that they can be avoided in future. logging false verdicts into the statistics is what perpetuates negative outcomes in so many ways particularly where there is fault by a major vested interest, in this case the road authorities with their road marking design.

  • 12
    Persia
    Posted July 22, 2013 at 1:17 pm | Permalink

    It’s not legal for anything other than a bicycle to overtake another vehicle in the same lane. It’s simply impatience, leading to dangerous behavior, with predictable consequences.

    As usual, if you are in a motor vehicle, you can get away with pretty much anything. Because it’s “normal”.

  • 13
    Strewth
    Posted July 22, 2013 at 3:13 pm | Permalink

    Smith John #10: I think in Derrick v Cheung it was a little more subtle – it seems what the trial and first appeal judges were trying to do is ‘discover’ a distinction in law between moral culpability and legal responsibility. So although everyone could agree that the driver’s behaviour was reasonable in the circumstances, nonetheless it was claimed the child’s family was owed compensatory damages, due to the mere fact the car hit the child yet would not have done so in a hypothetical scenario where the driver acted differently.

    This is actually quite close to the legal principle in many European countries that we often call ‘strict liability’ (though that isn’t the term actually used). Alan discussed the Dutch law on this in a previous blog post in June. Essentially, a motorist (or rather their compulsory third party insurance) is liable for damage or injury in collisions with vulnerable road users in many circumstances regardless of fault (and specifically with children).

    The High Court of Australia, however, was not prepared to rule that English/Australian common law implied such a principle. In the High Court’s view, liability for injury or damage can only arise from negligence, and since the motorist could not be held to be negligent, there could be no liability. There is no difference between moral culpability and legal responsibility after all.

    Of course we’re getting some distance away from the Pollit case, which is about criminal recklessness rather than civil liability, so turns entirely on the moral responsibility of the truck driver. Should attempting to squeeze past a cyclist in the same lane be excused on the basis that everyone else does it? The law, unfortunately, seems to think so.

  • 14
    Strewth
    Posted July 22, 2013 at 3:17 pm | Permalink

    Persia #12: Actually, it’s illegal for anything but a bicycle to overtake a moving vehicle in the same lane *on the left side*. It appears to be perfectly legal to overtake on the right in the same lane as long as you do so at a ‘sufficient distance to avoid a collision’.

    The push in Queensland now is basically about codifying what a ‘sufficient distance’ is when overtaking a bicycle.

  • 15
    Persia
    Posted July 23, 2013 at 2:20 pm | Permalink

    Strewth #14: It appears to be perfectly legal to overtake on the right in the same lane as long as you do so at a ‘sufficient distance to avoid a collision’.

    Nope – the definition of a ‘marked lane’ is:

    “marked lane means an area of a road marked by continuous or
    broken lines, or rows of studs or markers, on the road
    surface that is designed for use by a single line of vehicles

    so no overtaking in the same lane, unless you are a bicycle (can pass on the left, or be beside another bicycle while passing to the right).

  • 16
    Posted July 23, 2013 at 3:54 pm | Permalink

    Persia, I rather doubt that’s the intent of the law, and I’m quite certain you’d never be able to get a driver booked for anything if they passed a bicycle in the same lane but left a safe distance. Realistically as a cyclist I expect to be passed in the same lane regularly, and occasionally feel somewhat uncomfortable when drivers don’t do so even when there would seem to be sufficient room.

  • 17
    Persia
    Posted July 23, 2013 at 5:24 pm | Permalink

    Dylan – the point is that it isn’t possible to pass in the same lane, since 1m from kerb + 700mm of bike is already 1.7m and your standard 3.1m lane leaves 1.4m and how wide is a car?

    I ride in a lane, anyone who wants to pass is most welcome to use the next one.

  • 18
    IkaInk
    Posted July 23, 2013 at 9:06 pm | Permalink

    @Persia – Standard bike lane is 1.5m. You’re being overly generous with the distance from the kerb. Using the measurements you’ve proposed a bike lane would need to be 2.7m. The car lanes on the Westgate Bridge are only 2.8 wide and that’s for cars travelling at 80km/h!

  • 19
    Persia
    Posted July 24, 2013 at 1:52 pm | Permalink

    Ikaink

    I’m not talking about bike lanes, which vary in width anyway.

    I’m talking about travel lanes. I ride a metre out from the kerb / the side of a parked car and am 700mm wide.

    The point I am making is that there is no room for a motor vehicle to pass me in the same travel lane. So they can use the next one, or wait.

  • 20
    IkaInk
    Posted July 24, 2013 at 9:42 pm | Permalink

    @Persia – That may be true if you’re riding in the middle of the lane, but plenty of cyclists don’t and its not illegal to overtake if there is sufficient room to do so.

  • 21
    Strewth
    Posted July 25, 2013 at 10:12 am | Permalink

    @Persia: Australian law is clear that cyclists can ride two abreast in the same lane, whether it’s a bike lane or a conventional marked road lane.

    The wording in the dictionary about a marked lane being “designed for use by a single line of vehicles” does not imply any rule against passing another vehicle in the same lane. Among other things, this would make it unlawful for cyclists to ride two abreast or to overtake one another. (In both Victoria and Queensland it’s unlawful for two cyclists to ride more than 1.5 metres apart.)

    You’re correct that the passing of a ‘one metre separation’ rule would generally outlaw the practice of overtaking a bicycle in the same lane unless the lane were unusually wide (like the wide kerbside lanes on many Victorian roads, now widely being re-marked with separate bike lanes). But without such a rule there’s nothing to stop cars and trucks trying to pass in the same lane, as long as the driver can argue it’s normal practice to do so.

  • 22
    Persia
    Posted July 25, 2013 at 12:20 pm | Permalink

    IkaInk #20

    In the case we are discussing there was not sufficient room to do so, which was the point I was making.

    Strewth #21

    I know bikes can ride two abreast.

    It would be pointless to define a marked lane as for a single line of vehicles, if it wasn’t for a single line of vehicles, wouldn’t it? There is an exemption for cyclists – able to ride two abreast covers passing as well, obviously.

    What’s “normal practice” is dangerous driving. If you’re in a motor vehicle, you can get away with just about anything, as happened in this case.

  • 23
    Ride2Wk
    Posted July 28, 2013 at 2:35 pm | Permalink

    This example shows a clear failing of our current system of law. Lawyers gets so caught up in the legal system itself that they lose sight of what it was the law supposed to do in the first place – protect people from others.

    I’ve heard that a legal professor used to say to his 1st year class, & Ms Thatcher’s letter demonstrates it up perfectly, -
    “This class studies the law. If you want “justice” then go study philosophy.”
    My quote wording isn’t exactly correct but it was something along those lines.
    Basically it seems to me that he was saying that the law no longer had anything to do with right or wrong but was purely on how to follow the rules to win cases even if they were blatantly immoral.
    It’s no wonder there are so many lawyer jokes.

  • 24
    hk
    Posted July 29, 2013 at 8:14 am | Permalink

    One day there will be a separate bike lane at this location, and fatal accidents like this will not be possible. It is only a matter of infrastructure funding priority. Will it take twenty or thirty years to provide connected dedicated bike network routes in most of urban Australia?

  • 25
    Rais
    Posted August 3, 2013 at 2:56 am | Permalink

    It’s a long time since I gave up driving trucks but even in a car I give cyclists a wide berth when passing them. Bicycles are so unstable compared with other vehicles and their riders so unprotected. Cyclists really should be provided with dedicated paths next to all busy routes and required to use them.

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