Offroad accident dispute

Submitted: Thursday, Oct 16, 2014 at 16:33
ThreadID: 109836 Views:4657 Replies:10 FollowUps:21
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Hi folks,

I'm looking for some advice for a friend who recently had a head on collision on the Black Point track in W.A. No one was injured but his vehicle has suffered some damage. The guy coming the other way was barreling down the track pretty fast, my friend caught a glimpse of him coming up to a blind bend and slowed almost to a stop whereas the guy coming the other way failed to see and kept coming resulting in a collision. There is now a dispute as to who is at fault between the 2 parties. Has anyone ever found themselves in a similar situation? Any advice would be greatly appreciated.


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Reply By: Steve in Kakadu - Thursday, Oct 16, 2014 at 16:42

Thursday, Oct 16, 2014 at 16:42
My advise is report it to the police, then to the insurance company, and let them work it out.
AnswerID: 540447

Follow Up By: Member - Rosco from way back - Thursday, Oct 16, 2014 at 17:34

Thursday, Oct 16, 2014 at 17:34
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Follow Up By: Bludge - Thursday, Oct 16, 2014 at 17:38

Thursday, Oct 16, 2014 at 17:38
Unless you have independent witness's ditto
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Follow Up By: get outmore - Sunday, Oct 19, 2014 at 13:15

Sunday, Oct 19, 2014 at 13:15
yes agree you often find morons involved in accidents dont even have a license so its case closed for them
let insurance sort it out with the backing of your police report
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Reply By: Chris_K - Thursday, Oct 16, 2014 at 17:40

Thursday, Oct 16, 2014 at 17:40

As mentioned earlier, hopefully they know the rules about reporting accidents to the police in your state...if it's a minor bingle (sounds like its not) then there may be no requirement to report it - but I would check first. If it's reportable - the insurance company will need the police reference number and add it to the claim file - once the claim is lodged. Then let the insurance company sort out the rest...that's what you pay for.

If there is no insurance, perhaps your friend will need to get advice from a lawyer. That's when the costs start to mount up. Good luck.


AnswerID: 540448

Follow Up By: get outmore - Sunday, Oct 19, 2014 at 13:17

Sunday, Oct 19, 2014 at 13:17
always report it.. that way your version is officially lodged with police. you present the copy to your insurance
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Reply By: TomH - Thursday, Oct 16, 2014 at 18:17

Thursday, Oct 16, 2014 at 18:17
Then go and buy a dashcam so next time you will have evidence
AnswerID: 540450

Follow Up By: mikehzz - Thursday, Oct 16, 2014 at 19:04

Thursday, Oct 16, 2014 at 19:04
+1 They are becoming a necessity these days I reckon.
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Follow Up By: Freshstart - Friday, Oct 17, 2014 at 10:55

Friday, Oct 17, 2014 at 10:55
It's amazing how the attitudes change when you say "I have a video of it. Would you like to have a look?'. They just shut up and hand over their details.

And ASAP make a copy for yourself that the police wont confiscate. You wouldn't want the only copy "lost" would you. Do I trust anyone - NOPE!
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Reply By: olcoolone - Thursday, Oct 16, 2014 at 18:20

Thursday, Oct 16, 2014 at 18:20
Tell your mate to let the insurance companies fight it out and be prepared to loose the excess.

The excess would be a hell of a lot cheaper and quicker then paying lawyers.
AnswerID: 540452

Reply By: Ron N - Thursday, Oct 16, 2014 at 21:03

Thursday, Oct 16, 2014 at 21:03
Cruiser74 - I would guess that neither party was carrying flags?

In any arguments after a crash, there's always that nasty phrase produced - "contributory negligence".

A smart lawyer could say that your mate saw the idiot screaming along and failed to get off the track out of his way - thus contributing to the accident.
The same lawyer could also say, because your mate wasn't carrying a flag, he was partly responsible for the crash.

With no injuries, then it is a civil damage dispute, and the police will not be interested.

The track is in a conservation reserve and D.P.A.W. appear to be promoting use of the track, and they should be the responsible party for control, signposting, and ownership of the track.

Thus, theoretically, D.P.A.W. could be held partly responsible for failure to adequately signpost the track - just as councils are sued for failing to warn idiots that king waves kill, and big waves in the surf can dump you on your head, and make you into a paraplegic.

As always, it's rarely worth going to court over modest amounts of vehicle damage.

If your mate is insured, he should claim on his policy. If the other bloke is insured, then his insurance should cover his damage.

Not a lot can be done as regards trying to shift blame onto one party alone, they will both have to wear their respective claims on their own insurance companies.

Cheers, Ron.
AnswerID: 540457

Follow Up By: Ron N - Thursday, Oct 16, 2014 at 21:50

Thursday, Oct 16, 2014 at 21:50
I can't find any online legal answers info, as regards W.A. - but this NSW "legal answers" booklet (link below), is quite informative - and AFAIK, the points of law discussed in the NSW booklet, apply very similarly in W.A.

The only difference is in the references to the various statutes, which alter slightly between the states.
The basic outline of the legal situations and responsibilities surrounding any accident are fairly similar right across Australia.

The basic effort behind any push to wholly apportion blame for an accident revolves around one insurance company being able to claim incurred costs back from the driver deemed wholly responsible for the accident - and one driver being able to avoid an accident claim record.

As a lot of accidents involve some contributory negligence on the part of the driver who claims he/she was wholly innocent, any attempt to make one driver wholly responsible for the accident is very difficult to do - unless it can be proven that the other driver was drunk, driving in a dangerous manner that resulted in charges being laid, driving a stolen or unregistered car, or not having a valid licence.

If none of above apply, and the repairs are only modest cost, then it's highly unlikely any one insurance company will pursue a lawsuit against the other driver unless they are very confident of winning compensation.

NSW Law Handbook - Accidents and Compensation (start from page 80)
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Follow Up By: Member - Cruiser74 - Thursday, Oct 16, 2014 at 23:57

Thursday, Oct 16, 2014 at 23:57
Hi Ron, thanks so much for your replies your information and advice is really appreciated. I have passed your info on to my friend who was involved. There were no flags involved as the track winds through some pretty dense forest and there are plenty of blind corners so even if a flag was being used it wouldn't have helped in this case. The track is also not signposted at all either but is a fairly well used track so this might be something DPAW needs to consider. I think I will be investing in a dash cam as a learning from this as I also use this track and other similar ones quite often. I like to put my cruiser through its paces on these tracks but always slow right down at the blind corners and ensure its safe to proceed. Thanks again for your help mate!! Craig
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Reply By: Motherhen - Friday, Oct 17, 2014 at 00:27

Friday, Oct 17, 2014 at 00:27
Hi Craig

Is the Black Point track not a gazetted road?

One of our sons was involved in a collision on a beach when he was a teenager. Witnesses said the other driver had been drinking. He was not tested when taken to hospital for observation, and Police did not want to accept a report as it was not on a road. With persistence both parties put in a report. No charges were laid. The other party said our son had run into him. The lad who was standing outside son's (stationary) vehicle talking to our son had something to say about that. It was a case of claim insurance and bear the cost of the excess and loss of no claim bonus.


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Follow Up By: The Explorer - Friday, Oct 17, 2014 at 10:34

Friday, Oct 17, 2014 at 10:34

Black Point Road (from Stewart Road southwards) is (mostly) within a road reserve (the off bitumen road section is highlighted red on the map below) the southern section is in the D'Entrecasteaux National a case of where the accident happened.

I sent one final shout after him to stick to the track, to which he replied “All right,” That was the last ever seen of Gibson - E Giles 23 April 1874

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Follow Up By: get outmore - Sunday, Oct 19, 2014 at 13:23

Sunday, Oct 19, 2014 at 13:23
thats actually bs on the cops behalf MHfor the same reason all road rules including drink driving apply in a private shopping centre car park.
if its open to the public and not restricted then all normal rules and laws apply.
you have a farm right?.
if you have a locked gate and only let in who you want its private. if your gate is open and say your open to the public for say farmstay.
then your property within the open gate is subject to road rules
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Follow Up By: Shaker - Sunday, Oct 19, 2014 at 20:34

Sunday, Oct 19, 2014 at 20:34
So you are saying that if a property runs farm stays or sells eggs, then they would have to have registered bikes & possess licences to be able to ride on their own property? Wrong!!

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Follow Up By: get outmore - Monday, Oct 20, 2014 at 02:04

Monday, Oct 20, 2014 at 02:04
shaker.... probably yes say someone's driving in to check into the farmstay and a farmhand drunk on a quad crashes into them.
yes they could be prosecuted for drunk and driving an unlicensed vehicle.
the place is open to the public and they deserve the full protection of the law
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Follow Up By: get outmore - Monday, Oct 20, 2014 at 02:06

Monday, Oct 20, 2014 at 02:06
dont forget it only becomes an issue if things go wrong.
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Reply By: Ron N - Friday, Oct 17, 2014 at 14:59

Friday, Oct 17, 2014 at 14:59
Here's some points to bear in mind as regards police and legalities;

There is a difference in law and liabilities between the following situations;

1. A driving offence (this is criminal responsibility).
2. Responsibility for damage (this is civil liability).
3. Injury to persons involving motor vehicles (this is regarded as serious, and MUST be reported to Police - even minor injuries).

Roads are initially surveyed, then "gazetted". Once gazetted, they are open to the public and maintained by local authorities or the M.R.D. of W.A.
You can have surveyed roads, that have never been gazetted. These are still open to the public, but are not maintained.

Sometimes local landowners will initiate a request to close a surveyed, ungazetted road. This is often approved, the landowner purchases the road reserve, and a gate is installed across the former surveyed road.
This may appear to be a road, but it is now private property. If you enter without the landowners permission, you are trespassing.

At one time, a major distinction was made between gazetted and ungazetted roads and private property when it comes to traffic offences and traffic accidents.

That division has now been replaced with a reference to a "public place".
Thus, if an area is normally accessible by the public, regardless of whether it's a gazetted road or something else - it's deemed a "public place".
Typically, many crashes involve a vehicle leaving a public road and crashing through private property, causing damage.
Thus, the major distinction between roads and private property cannot be upheld as it once was, when a traffic accident has occurred, and property damage or personal injury has been incurred.

Charges can be laid for traffic offences carried out in a "public place". Typical examples are sportsgrounds (doing burnouts on the grass), beaches (driving offence charges are laid exactly the same as if on public roads), and even private paddocks that are thrown open to public access, for events that are being held.
The bottom line is "being in charge of a motor vehicle".

The police in W.A. have no real interest in traffic accidents where damage is relatively minor and no-one is hurt. They do get interested when a chargeable offence has been committed, or when someone has been injured.

A person can receive a minor injury that appears superficial and is dismissed - but that injury could develop into something more serious - and at that point, the person injured, is entitled to lodge a claim for compensation under CTP insurance, to the State insurer.

In order for the personal injury claim to proceed, a crash report has to have been lodged with police. If a person lodges a personal injury claim and the crash has never been reported, both drivers can be charged with "failing to report an accident causing injury".

Traffic accidents on private property are treated differently under road statistics regulations. Accidents causing injury and death on private property are not included in the calculations for the road toll.

Thus, it's important to immediately identify whether a criminal offence has been committed when a crash occurs.
This means identifying the drivers as being the people they actually represent themselves to be (ID fraud in crashes is common).
It also means that the drivers have to find out if the other vehicle is registered and the driver is licenced and not driving under suspension.
If you're in a crash and there's any doubt about the above, call the police.

Both drivers have to ensure that no injuries have been sustained, and if they have, police must be advised.
Both drivers have to ensure that they give their details to any owners of property that have been damaged in the crash.
And finally, it is both drivers responsibility to ensure that traffic is not obstructed by a crash, and that wreckage is removed and that oil and fuel spills are covered or cleaned up.

W.A. police have an online system of reporting crashes where police are not required to attend.
It pays to report crashes where damage involves insurance claims, and to ensure you get crash witnesses names and contact details.
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Follow Up By: fredwho - Friday, Oct 17, 2014 at 18:21

Friday, Oct 17, 2014 at 18:21
Interesting info Ron N, thanks.

"It also means that the drivers have to find out if the other vehicle is registered and the driver is licenced and not driving under suspension"

How do you check these? In NSW there are no rego stickers on the car, and how check if the driver is suspended?

"1. A driving offence (this is criminal responsibility). "

Aren't most accidents the result of driving offences and thus reportable to the police? Cutting off drivers, going thru a Stop sign...

If you are rattled after an accident and can't think clearly or remember all these things you need to do to avoid being penalised, I'd say call the police due to temporary brain injury as that is holding you back from acting normally! Jeez, how can people get all that right in such a situation...

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Follow Up By: Ron N - Friday, Oct 17, 2014 at 21:07

Friday, Oct 17, 2014 at 21:07
Yes, that's true, being seriously rattled and not thinking straight after a crash, is a big problem.
However, keeping a simple list of things to do after a crash, in your glovebox, assists in that regard.
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Reply By: Ron N - Friday, Oct 17, 2014 at 21:04

Friday, Oct 17, 2014 at 21:04
Fred - Well, you ask to sight the other drivers photo ID (if they produce a foreign licence without a photo, that's reason to check further) - and if you have even the slightest suspicion of the other driver being suspended, drunk, unlicenced, or committing a chargeable traffic offence - you ring the police on 131 444. I'm sure they will advise accordingly.

From the QLD police website;

"When you contact Policelink, our specifically trained Client Service Officers and Police Technical Advisors will process your non-urgent reports and assist with any of your general Police enquiries. Where appropriate, Policelink staff may issue you with a crime report number for insurance purposes, or for follow up enquiries."

I'm sure if you provide the basic details of the other drivers MDL over the phone, the police or civvy assistants can immediately advise whether the other drivers MDL is legit.

I'm very wary of people providing false ID and lying about their situation. I've had people run into the back of me, 4 times in 48 years of driving, and every one of those drivers was either suspended, was driving an unregistered car, or gave false personal details.
The last bloke ran fair up my bum at 65kmh when I was stopped and legally parked on a main road in broad daylight, in fine sunny weather at midday - and he gave his name, as the name of a bloke who was in jail that day! - to the attending police officer!

Yes, very often people are committing a serious traffic offence when they crash - but sometimes that is inadvertent - such as the old lady or old bloke who says, "I just didn't see that car, officer!".
We all make mistakes every day when driving, the important thing is to avoid the ones that result in disaster.

A truckie mate with a 5 tonner who does 100,000 kms a year, told me how he drove straight through a red light the other day, without seeing it.
He was just distracted - and he said how much it frightened him, as he's never had a serious accident, and he's 58.

It can happen to anyone. I've gone straight through a couple of red lights in my career because I was totally distracted, and it was lucky no-one was coming the other way.

I've watched a bloke drive slowly up the centre lane of a 3 lane arterial road with cars facing a red light and stopped each side of him, and he just kept on going through the red!
I've seen some fancy steering by people behind the wheel - but it was just amazing to watch how the other cars avoided him (the lights had only just changed, going the other way).

Cheers, Ron.
AnswerID: 540503

Follow Up By: Member - Cruiser74 - Friday, Oct 17, 2014 at 21:19

Friday, Oct 17, 2014 at 21:19
Hi Ron,

Thanks again for your help. I was actually still down at the point when this happened as my mate and his girlfriend had to leave earlier that morning so I only heard about it when we caught up again back in Perth. I'm pretty sure they exchanged details but there is no mobile phone reception down there on the track and you have to drive a fair way towards Nannup before you come in to range and then that's only if you're with Telstra. As I recall he said he has a busted bullbar and bent front panel. Not sure exactly how "busted" but bullbars aren't cheap to replace which is why he is trying to follow up the insurance side of things. It sounds like the other bloke isn't going to admit fault so it's going to be a case of one's word against the other. He said he should have taken a photo of the skid marks in the sand from the car coming the other way as he had to brake hard whereas my mate was practically stationary when they collided. I'm not sure if this would have carried much weight anyway being a dirt track unless he took the pics while the other car was still there.
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Follow Up By: Ron N - Friday, Oct 17, 2014 at 21:31

Friday, Oct 17, 2014 at 21:31
Yep, that communication problem quite often rears its head when an accident happens, and you're in the sticks.
Something to bear in mind when heading bush - if there's an accident, someone gets hurt, what is the plan?

The bottom line is - no-one got hurt, bullbars and panels can be replaced - but it's annoying when people are driving like idiots and refuse to accept responsibility for their actions that incur damage, cause inconvenience to others, and involve breaches of basic safe driving.

However, that's what we have insurance for - to help ameliorate the nuisance created by nuisances!

Cheers, Ron.
FollowupID: 826374

Reply By: Shaker - Friday, Oct 17, 2014 at 21:51

Friday, Oct 17, 2014 at 21:51
Why don't you tell your friend to get real legal advice, instead of hastily Googled answers cut & pasted into this thread?

AnswerID: 540504

Follow Up By: Member - Cruiser74 - Friday, Oct 17, 2014 at 22:20

Friday, Oct 17, 2014 at 22:20
Given the collective knowledge and experience the members on this site have I can't see the harm in seeking advice from others who may have had a similar experience before running to a lawyer.
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Reply By: Ron N - Friday, Oct 17, 2014 at 23:08

Friday, Oct 17, 2014 at 23:08
Of course, one can't offer up advice without the trolls eventually appearing, who feel the need to denigrate any information posted.

I cut and pasted one paragraph from a police website and supplied one link, for further reference.

All the rest of the wording is directly from my own brain and fingers and experience, and its all copyright to me, thanks very much!

However, I guess I'll have to put in the proper disclaimer.

"I am not a trained or qualified lawyer, and the legal advice you have been offered, is the equivalent of a pub BS session".
That should about cover it.

Please note, any further complaints about the rubbishy quality of my posts will be referred to my lawyers, Grabbitt & Runn, for examination for potential defamation and slander lawsuits.
I'm just like Clive, I'm basically a sensitive soul, and my feelings are easily hurt. [:-)
AnswerID: 540505

Follow Up By: get outmore - Sunday, Oct 19, 2014 at 17:04

Sunday, Oct 19, 2014 at 17:04
ron I seem to remember a case a while back a party was held on a farm and a drunk teen ran over a guy in a swag.
the grey area was weather he could be charged with drunk driving as although many people were there the party wasnt open to the public and the padock was fenced and gated
I dont recall the outcome
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Follow Up By: TomH - Sunday, Oct 19, 2014 at 17:25

Sunday, Oct 19, 2014 at 17:25
Google revealed this

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Follow Up By: Ron N - Sunday, Oct 19, 2014 at 20:11

Sunday, Oct 19, 2014 at 20:11
get outmore - Yes, I remember that particular tragedy well, and I've read the full coronial inquest report.
In NSW, the law is different to W.A. - the police have to declare a traffic accident area "a public place" to enable road rules to be enforced.

They refused to do so in this case, and so the young bloke got off scot-free.
I can recall the mother of one of the teenagers killed, pleading for the police to declare the paddock a public place, because a conviction meant a lot more than just punishing the offender - the parents would have been compensated for the teenagers deaths under 3rd party insurance.

The link to the copy of the coronial inquest into that tragedy is below.
Page 9 is the relevant page, under "Possible recommendations?" and paragraph (f) outlines the applicable section of the NSW law.

Coronial inquest in the deaths of Eliza Wannan and William Dalton-Brown
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