QLD Car Parking accident dispute

Discussion in 'Traffic Law Forum' started by Katie D, 26 September 2019.

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  1. Katie D

    Katie D Member

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    Have been held at fault for an accident from our insurance company and not totally convinced that we are.
    Happy to cope it if so, but feel that the insurance company is very incompetent in this claim.

    Our vehicle reversed into a service station car park and collided with another vehicle travelling behind it. They have found that our vehicle is at fault as we were not taking enough care whilst reversing. Fair enough but feel that they have not taken into consideration that other vehicles part in this accident.

    The other vehicle was travelling through about 6 marked car parking bays that had been empty and the collision took place when our vehicle was about 1/3 way into one of the marked car park bays. This vehicle would have had clear view of our vehicle and should have been travelling within the marked lines of the road (not through car park bays) and it wouldn't have been hit, plus should have been travelling at a speed to avoid an accident. Someone mentioned that in Queensland there is a law that says you have right to occupy your car parking space when parking?

    Our insurance after 9 months has decided that we are 100% at fault. They have also asked for us to get our vehicle assessed, however this was also done 9 months ago and has none if any damage. Hence why we do not have faith in their processes.

    Thanks.
     
  2. Zerojay

    Zerojay Well-Known Member

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    Can you please identify the service station so we look on Google Maps to better understand the circumstances. Based on your description, my opinion is that the other driver may be at least, partly at fault.

    I do not give legal advice, just my opinion based on working for an insurance company for over 20 years.
     
  3. Katie D

    Katie D Member

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    Caltex Gympie. Both vehicles driving east to west. Have photos but can’t upload them.
    Thanks!
    Should it also take them 9 months to make a decision on the claim? Expect some liability but for them to say no liability for other vehicle after also breaking road rules just doesn’t seem right.
     
  4. Zerojay

    Zerojay Well-Known Member

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    Okay, I am assuming you are referring to the Caltex next to Madills. Also you seem to be saying that you came to a stop before reversing right into one of the bays and the other driver, who was coming up behind you, decided to overtake on the right by driving through the same bay. Whether or not you were indicating right, in a timely fashion, before you began to reverse is critical to determining fault. If you were indicating, then the other driver was breaching Overtaking Regulation 142 and is mostly at fault - should have instead overtaken on your left. This regulation includes a stipulation that a driver must not overtake to the right if the other vehicle is turning right or giving a right change of direction signal. However if you did not first indicate, then you are at fault. I am not aware of any law that penalizes a driver for driving through empty parking bays to overtake. If you say you were indicating and the other driver says you were not then I suggest your best outcome would be to pay your excess and leave it to your insurer to negotiate a settlement with the other side. I emphasize, this is not legal advice, just my opinion.

    If you lodged a claim 9 months ago then yes the insurer's delay is very poor customer service and they should provide a detailed explanation and apology if warranted. As you have no damage it may be however that you have not been financially prejudiced by the delay.
     
  5. Scruff

    Scruff Well-Known Member

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    I don't think you're in the wrong at all. It's a public place therefore the road rules apply and I doubt that driving through 6 empty parking bays is following the road rules. It's not much different to taking a shortcut across a painted traffic island when you think about it.

    To look at it another way... where there are marked bays, you are supposed to park within those marked bays, which is what you were doing. So what was the other car doing? Driving through 6 parking bays doesn't even remotely sound like a parking manoeuvre to me.

    This sounds like the usual insurance garbage where you're 100% in the wrong solely because you were reversing.
     
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  6. Zerojay

    Zerojay Well-Known Member

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    Hey Scruff. In terms of the Road Rules, driving through parking bays is not the same as driving across a painted traffic island because one is specifically penalised(reg. 138) and one - parking bays - is not.

    It is a bit rubbery to apply the road rules to this situation because there is no actual road as such. But just on the basis of who contributed most to the cause of the accident, I think indicating or not indicating your intention to turn determines fault for me.
     
    #6 Zerojay, 3 October 2019
    Last edited: 3 October 2019
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  7. Scruff

    Scruff Well-Known Member

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    @Zerojay - Before I begin, I want you to know that I'm not having a go at you at all. Your post hasn't got me just thinking about this particular incident, but also about the pathetic way that insurers go about assessing accidents, particularly in car parks and on private land. It also highlights (again, not having a go at you) that many people don't understand where and when the road rules apply. This will be a bit long, but bear with me. I'll start with your post then come back to the OP's situation...

    Not the same, but "not much different" - ie; similar. Think of it as a common sense approach based on the general principles of the road rules.

    When you have situations where there's no specific road rule that applies, the common sense thing to do is to take the road rules and apply a set of principles to that specific situation. For example, say you have a road with no markings, some dirt off to the sides and then some grass. I've never seen a specific road rule that says that you can't drive on the grass and in fact, I'm not even sure if there's one that says that you have to stay on the road. But there are rules about driving within lanes of traffic when there are no markings, keeping left of the centre of the road and so on. You also need to apply basic common sense, such as you should keep your vehicle wholly within the confines of the road whether or not there's a rule that governs it.

    So what does all of this have to do with the OP's situation and my comment about traffic islands? Well, ask yourself this: Have you ever wondered why parking bays are marked with unbroken lines instead of broken lines? Now you see the principle. There are several road rules regarding unbroken lines and they pretty much all relate to the same thing - "do not cross unbroken lines". And that is where the similarity is derived from.

    Not rubbery at all actually - and admittedly, a lot of people still don't know it. This issue is actually very clear for every state I've looked at so far except for WA. But we're talking about QLD here, so I'll stick to that. For QLD, the road rules apply to all public car parks because both the legislation and the regulations say they do (relative text highlighted in red):

    QLD Transport Operations (Road Use Management — Road Rules) Regulation 2009

    11. Regulation applies to vehicles and road users on roads and road-related areas
    (1) This regulation applies to vehicles and road users on roads and road-related areas.
    (2) A reference in this regulation (except in this division) to a road includes a reference to a road-related area, unless otherwise expressly stated in this regulation.​

    13. What is a road-related area
    (1) A road-related area is any of the following—
    (a) an area that divides a road;
    (b) a footpath or nature strip adjacent to a road;
    (c) an area that is not a road and that is open to the public and designated for use by cyclists or animals;
    (d) an area that is not a road and that is open to, or used by, the public for parking vehicles.
    (2) ...​

    Schedule 5 - Dictionary
    road see section 11.
    Note—
    See also the definition of road in schedule 4 of the Act.
    --------------------------------------------------------------------------------​
    QLD Transport Operations (Road Use Management) Act 1995

    Schedule 4 - Dictionary
    road—

    (a) includes a busway under the Transport Infrastructure Act 1994; and
    (b) includes an area that is—
    (i) open to or used by the public and is developed for, or has as one of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or
    (ii) dedicated to public use as a road; but​
    (c) does not include an area declared under a regulation not to be a road.
    Example of an area that is a road—
    a bridge, cattle grid, culvert, ferry, ford, railway crossing, shopping centre car park, tunnel or viaduct​

    (Edit: "shopping centre car park" should be red, but the idiotic and incompetent auto tagging on this web site messed it up.)

    You've probably realised by now that you're actually contradicting yourself here. You said it's "rubbery" to apply the road rules, but your determination is based solely on a "single" road rule. You are correct that this is one element that needs to be taken into account if the OP was actually turning at the time, but there are many other elements that need to be considered - particularly, why was the other vehicle travelling through marked parking bays when it shouldn't have been. It appears to me that the insurance company has made the same mistake - concentrating too much on one element of the incident.

    To explain that comment, consider this: What would happen if the OP was a pedestrian? Answer: The other driver would likely be charged with an offence (such as s83 under the Act, Careless driving of motor vehicles). The point being that all of a sudden we're looking at the actions of the other vehicle - which so far, appears to have been ignored because the OP was in a vehicle themselves and reversing. Make the OP a pedestrian and suddenly the perspective drastically changes. That shouldn't be happening when trying to determine fault - the actions of all involved needs to be taken into account regardless of whether they are a pedestrian or driving a vehicle.

    On the surface (based on the little info provided), there appears to be so much wrong with what the other vehicle was doing that it's very hard to see how the insurer could possibly come up with it's decision that the OP is 100% at fault. But in all fairness, we only know one side of the story and the details provided thus far are minimal at best. It's possible that the other driver has a totally different version of events - and that could explain the insurer's decision.

    @Katie D - If you want us to explore this further, which would certainly be fun and interesting, then we need more info.

    1. Where were you looking when the impact occurred?
    (a) over your left shoulder
    (b) over your right shoulder or out right window
    (c) a mirror (specify which one: rear view, or left/right side mirror)
    (d) other (please specify)

    2. Were you turning at the time? If so, left or right and did you indicate?

    3. From which direction did the other vehicle approach? (left, right, rear, left rear, etc)

    4. Where was the impact on your vehicle? (eg: rear only, left rear corner, left back door, right side, etc)

    5. Where was the impact on the other vehicle? (eg: front only, front left corner, etc)

    6. Did either driver take any preventative action before the impact? (eg: turn, sound horn, flash lights, yell foul words, etc)

    7. Where exactly did this happen? (Street and cross street. If you don't know, look it up on Google Maps - it would help to be able see the actual layout and markings. Zerojay appears to be familiar with Gympie, but I'm not and when I searched in Google Earth, it threw up 6 different Caltex servo's in the area.)

    8. I'm sure you spoke to the other driver after the incident, so what can you tell us about their version of events? (And be honest here - there's no point otherwise. We're simply looking at your question about whether or not the insurer got it right. To do that, we need to know as much as you can tell us about both sides of the story - which is what the insurer would have based there decision on. So for us to give an opinion on whether or not they got it right, we need to know the basics of what info they were given by both parties.)

    I know that this minor incident may seem trivial to many people, but I think it's worth exploring for future reference for people who have disputes with insurers. After all, it's long overdue that insurers be made to explain their decision making processes, not just the decisions themselves.
     
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    #7 Scruff, 5 October 2019
    Last edited: 5 October 2019
  8. Scruff

    Scruff Well-Known Member

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    My head hurts after all of that. I think I need a beer. :confused:
     
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  9. Zerojay

    Zerojay Well-Known Member

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    Hold your horses Scruff.

    I am well aware the road regulations apply to the site of this accident - being an open area that is traversed by the public driving through/to businesses on private land. And there are 6 public parking bays along one boundary fence. However it is stretch to apply the regulations in this accident because there is no actual road so “keeping to the left of the centre of the road, etc. has no practical application. Also I have some doubt that the regulations dealing with turning right and and overtaking a vehicle turning right were meant to include reversing right on the turn. However stopping and then changing direction (turning) without first indicating your intention to alert a following driver makes the accident your fault in my opinion. And conversely, his fault if you did first indicate your intention.
    Good luck with your theory about unbroken lines and parking bays. Makes no sense to me and is irrelevant to fault in this situation.
    And by the way, there is a road rule 289 about driving on the nature strip.
    And I have never seen a pedestrian reverse into a parking bay. LOL.
     
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