WA Car Reverses into Wife's Car - Who is at Fault?

Discussion in 'Insurance Law Forum' started by Brent Gibson, 24 December 2018.

  1. Brent Gibson

    Brent Gibson Member

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    My wife drove around into another row and there was a car, with the right-hand indicator on (other driver disputes this). My wife has stopped behind his car. The other driver then put his vehicle into reverse. My wife sounded her horn to warn him, but he reversed into her.

    Who is in the wrong here? The other vehicle is also a work vehicle, belonging to the company we presume he works for. My wife asked for insurances details, but his wife, who arrived after and did not witness the car accident, said they did not know the car insurance details as it was a work car.

    Could you please tell us who is in the wrong?
     
  2. Scruff

    Scruff Well-Known Member

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    Whenever a vehicle is reversing, legally (under the road rules), they will nearly always be in the wrong every time. With that said however, insurance companies are well known for taking the view that costs them the least amount of money.
     
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  3. Zerojay

    Zerojay Well-Known Member

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    Contrary to other states, in WA the road rules do not apply in public car parks. However, everyone seems to drive according to the road rules which is a good thing for the sake of good order.

    If you are stationary and sounding your horn and the other car reverses into you, they should be at fault. If they tell the truth to the company car’s insurer, you should have no problem.

    Sometimes people lie - for instance they say you ran into them - then if you have no witnesses, it is impossible for the insurance companies to determine who is telling the truth and it becomes a stalemate. This results in your insurer calling it an at fault claim which affects your future premium and also your excess will not be waived.

    I do not give legal advice, just my opinion based on working for an insurer for over 20 years.
     
  4. Al1

    Al1 Member

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    I remember the Barnett govt before election introduced a legislation that the road traffic act applies to private properties, carparks and dirt roads?
     
  5. Zerojay

    Zerojay Well-Known Member

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    Could you please show me where the above is in the current version of the legislation, cos I can’t find it?
     
  6. Al1

    Al1 Member

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    I remember the talk about it but did not follow it up if it ever eventuated. Premises that has public access like a carpark of a pub is subject to the road traffic act. Police can do a breath test, fine you if you are not wearing a seatbelt in the carpark, impound your car if doing burnouts under hoon laws. So I would assume car accidents would fall under that.
     
  7. Scruff

    Scruff Well-Known Member

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    The road rules apply to all public car parks whether or not they are privately owned or operated, unless another law explicitly states otherwise.

    All states have adopted the Australian Road Rules. The definition of Road is provided by section 12:

    12 What is a road

    (1) A road is an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.
    Note: Motor vehicle is defined in the dictionary.

    (2) However, unless the contrary intention appears, a reference in the Australian Road Rules (except in this Division) to a road does not include a reference to:
    (a) an area so far as the area is declared, under another law of this jurisdiction, not to be a road for the Australian Road Rules; or
    (b) any shoulder of the road.
    (3) The shoulder of the road includes any part of the road that is not designed to be used by motor vehicles in travelling along the road, and includes:
    (a) for a kerbed road — any part of the kerb; and
    (b) for a sealed road — any unsealed part of the road, and any sealed part of the road outside an edge line on the road;​
    but does not include a bicycle path, footpath or shared path.
    Note: Bicycle path is defined in rule 239, edge line and footpath are defined in the dictionary, and shared path is defined in rule 242.
     
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  8. Scruff

    Scruff Well-Known Member

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    Just to clarify, when you consider that car parks often provide access to various parts of a larger complex as well as parking, a car park can come under the definition of both a road and a road-related area depending on the circumstances.

    For example:
    The road rules apply to roads and road-related areas - Section 11(1).
    While driving from the entrance to another area closer to a particular shop, you are driving on a road - Section 12(1).
    While you are driving into or out of a parking bay, you are driving on a road-related area - Section 13(1)(d).

    So when it comes to car parks, sections 11, 12 and 13 all combine to make the road rules applicable. Here's all three for completeness:

    11 Australian Road Rules apply to vehicles and road users on roads and road-related areas

    (1) The Australian Road Rules apply to vehicles and road users on roads and road-related areas.

    Note: Road is defined in rule 12, road-related area is defined in rule 13, road user is defined in rule 14, and vehicle is defined in rule 15.


    (2) Each reference in the Australian Road Rules (except in this Division) to a road includes a reference to a road-related area, unless otherwise expressly stated in the Rules.

    Examples for subrule (2):
    1: A reference in rule 146 (which deals with driving within a single marked lane or line of traffic) to the road includes a reference to the road-related area of the road.
    2: A reference in rule 200(1) (which deals with certain heavy or long vehicles stopping on roads) to a length of road includes a reference to the road-related area of the length of road.
    3: A reference in rule 31 (which deals with starting a right turn from a road, except a multi-lane road) to a road does not include a reference to a road-related area, because of the definition in subrule (5) of that rule.

    12 What is a road

    (1) A road is an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

    Note: Motor vehicle is defined in the dictionary.


    (2) However, unless the contrary intention appears, a reference in the Australian Road Rules (except in this Division) to a road does not include a reference to:
    (a) an area so far as the area is declared, under another law of this jurisdiction, not to be a road for the Australian Road Rules; or
    (b) any shoulder of the road.​
    (3) The shoulder of the road includes any part of the road that is not designed to be used by motor vehicles in travelling along the road, and includes:
    (a) for a kerbed road — any part of the kerb; and
    (b) for a sealed road — any unsealed part of the road, and any sealed part of the road outside an edge line on the road;​
    but does not include a bicycle path, footpath or shared path.

    Note: Bicycle path is defined in rule 239, edge line and footpath are defined in the dictionary, and shared path is defined in rule 242.
    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 driving, riding or parking vehicles.​
    Note: Vehicle is defined in rule 15.

    (2) However, unless the contrary intention appears, a reference in the Australian Road Rules (except in this Division) to a road-related area includes a reference to:
    (a) an area so far as the area is declared, under another law of this jurisdiction, to be a road-related area for the Australian Road Rules; or
    (b) any shoulder of a road; or
    (c) any other area that is a footpath or nature strip as defined in the dictionary;​
    but does not include a reference to an area so far as the area is declared, under another law of this jurisdiction, not to be a road-related area for the Australian Road Rules.

    Note: Shoulder is defined in rule 12.
     
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  9. Zerojay

    Zerojay Well-Known Member

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    Very interesting, but I think you are wrong in respect to WA, Scruff.

    The Australian Road Rules (AAR) has no legal effect with each state and territory having its own state laws to govern road usage. (See ntc.gov.au).The ARR is very similar to the state laws but there are differences.

    For instance in the WA Road Traffic Code 2000 there are no definitions of “road” or “road related areas” as per your posts. There is a definition of “carriageway” - “ a portion of a road that is improved, designed or ordinarily used for vehicular traffic, and includes the shoulders and areas, including abayments at the sides or centre of the carriageway, used for the stopping or parking of vehicles;...”. Then there is a definition of “road” in the Road Traffic (Administration) Act 2008 - “Division 2 Terms used in road laws -

    Road means any highway, road or street open to, or used by the public, and includes every carriageway, footway, reservation, median strip and traffic island on it.”

    In WA legislation for road laws I cannot find any reference that supports these road laws also apply in car parks open to the public. If you can point it out to me I will happily concede I am wrong.
     
  10. Scruff

    Scruff Well-Known Member

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    Okay, I see your point. WA seems to have done their own thing in regard to adopting the Australian Road Rules ("ARR"). Yes, all states have their own legislation and rules, but the idea behind the ARR was for those rules to be "based" on the ARR and be uniform across the states as much as possible. WA seems to have done it their own way - and made a mess of it in my opinion.

    In NSW, the rules are laid out exactly the same as the ARR, with any provisions not applicable to NSW removed with an explanatory note, and any additional provisions applicable to NSW only inserted, also with an explanatory note. This means that you can see straight away what provisions are from the ARR and what ones aren't. This was the intention of the ARR and I assumed that all states adopted it in the same way, but it seems that WA did things differently.

    The ARR has all definitions and rules all in the one place and it applies to "roads and road-related areas". Those two terms are not defined in the definitions, but are instead defined in their own sections as they need to be "concise", because those definitions control exactly where the road rules apply. This is where WA has made a mess of it. In WA, the definitions are spread across the Road Traffic Code 2000, the Road Traffic Act 1974 and the Road Traffic (Administration) Act 2008 at the very least.

    So after looking it all up, here's my take on it...

    I agree, as you pointed, that the definition of "road" from the Road Traffic (Administration) Act 2008, is the definition that is "supposed" to be used for the Code. But the problem is that it doesn't define what a road actually is:

    "road means any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it."

    That is so ambiguous, it's a wonder that every second motorist isn't challenging it in court. When you pick it apart, you get:

    1. "means any highway, road or street" - this is not a "definition"; it's a list of "examples" that are themselves not defined either and even worse, those examples are non exhaustive and one of them is "road" itself! You can't define "road" by stating it is a "road".
    If you take the text literally (as being "types" of roads), then you have "highway", "road" and "street" - so what about "freeway", "avenue" and "lane"?
    If you don't take it literally and assume that all types of roads are included, there is still nothing to state what actually "constitutes" a "road" or "roadway".

    2. "open to, or used by, the public" - this provides scope and is clear enough.

    3. "and includes every carriageway, footway, reservation, median strip and traffic island on it" - this provides clarification in regard to different parts of a road that are to be included as part of the road for the purpose of the Act, so this is also pretty clear. But again, is not a "definition".​

    So none of this defines what a road actually is. Section 12(1) of the ARR uses the following words specifically for that purpose:
    "... is developed for, or has as one of its main uses, the driving or riding of motor vehicles"​

    But WA has nothing of the kind - at least not directly related to the road rules. This is a massive flaw, because like the ARR, the definition of what "constitues" a road is what actually determines whether or not the road rules apply. This is because of the wording of section 4(1) of the Road Traffic Code:
    "Unless the context requires otherwise, these regulations apply to persons, vehicles and things on roads only, and where a provision of these regulations requires, or prohibits, the doing of any act or thing, that requirement or prohibition relates to the doing of that act or thing, on a road."​

    Because the Road Traffic (Administration) Act doesn't define what actually constitutes a road, you have to apply an external definition. That means that if challenged in a court, the court would have to revert to a definition from a dictionary or one from some other piece of related legislation - which in this case, I would say would be the WA Main Roads Act 1930.

    The Oxford Dictionary defines "road" as:
    "A wide way leading from one place to another, especially one with a specially prepared surface which vehicles can use."
    (I wanted to use the Macquarie Dictionary but it kept asking for a subscription.)

    The WA Main Roads Act defines "road" as:
    "road means any thoroughfare, highway or road that the public is entitled to use and any part thereof, and all bridges (including any bridge over or under which a road passes), viaducts, tunnels, culverts, grids, approaches and other things appurtenant thereto or used in connection with the road."

    (Again, the word "road" is used in it's own definition! Unbelievable - but it doesn't really matter because of the words "any thoroughfare".)​

    The Oxford Dictionary defines "thoroughfare" as:
    "A road or path forming a route between two places."
    which is very similar to the dictionary meaning of "road" itself.
    So now we're getting somewhere because we have definitions that state what a road actually is. The most important point is that the definitions from both the dictionary and the Main Roads Act include any type of roadway. Therefore the road rules should be applied to any type of roadway designed for vehicular use by the public.

    This brings us to car parks. A car park consists of one or more roadways, lanes or thoroughfares (pick any term you like) to navigate the carpark and access the "parking bays". Therefore by definition, a car park contains "roads".

    If we now go back to the definition of "carriageways", which includes "abayments at the sides or centre of the carriageway, used for the stopping or parking of vehicles", then the individual "parking bays" are also included. You can argue that this is supported by the Main Roads Act with the words "and any part thereof" and "used in connection with the road."

    This means that the road rules should apply to any car parks, and the use of the words "open to, or used by, the public" in the original definition in the Road Traffic (Administration) Act means they should apply to any publicly accessible car park.

    So that's how I would argue it if I had to. It basically comes down to the Road Traffic (Administration) Act failing to define what actually "constitutes" a road whereas any dictionary or the Main Roads Act does. In my view, the definition in the Road Traffic (Administration) Act is far to ambiguous to hold up in a court on it's own.

    I think this is one of those cases where you have to revert to case law to see if the definition of "road" has actually been challenged in the past, in which case there would be a precedent in place. Aussies being Aussies, I'd be very surprised if it hasn't already happened.
     
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    #10 Scruff, 26 December 2018
    Last edited: 26 December 2018
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