Tag Archives: legal

Crashed riders risk negligent charge

More and more riders are being charged with negligent driving (riding) after a single-vehicle crash, says NSW traffic and criminal law specialist Chris Kalpage.

Our contributing lawyer has previously written articles about defending various charges and last time he addressed the issues arising out of dangerous driving and negligent driving causing death or grievous bodily harm.

He now tackles this increasing risk of a negligent driving charge for which penalties can be quite severe:

Chris Kalpage defencesChris Kalpage sets up for a track session

Negligent driving

The concept of negligence is whether the person charged was not riding in the manner of a reasonably prudent motorist, considering all the circumstances.

Often if police are called to a single-vehicle accident where the bike has come down there is a risk the rider will be charged with negligent driving.

Two cases I defended come to mind.

Case 1

Old Pac gets more ‘safety barriers’Riders on the Old Pac (Photo courtesy of Valley Images)

One morning my client was riding his Aprilia RSV on the Old Pacific Highway, tipped into a corner at below the speed limit and lost his front end on slippery leaf mulch. You could substitute that for moss, oil, gravel from filling in potholes, or anything on the road surface.

He dragged himself to the Armco and sat down, his leg was broken. To his surprise, a tow truck and ambulance stopped to assist. As he was traveling to Gosford Hospital he heard over the radio that they had picked up the wrong accident victim, so they stopped at the next accident scene some kilometres from where he had crashed.

While the paramedics were assisting the other rider, a highway patrol officer at the second scene spoke to my client while he was in the back of the ambulance. He asked what had happened and my client explained about the leaf mulch. The officer further interviewed my client in hospital.

My client subsequently received an infringement for negligent driving which we defended.

The police officer’s evidence was that my client had told him he had lost his front wheel on leaf mulch. However, the officer said he attended the site and there was no leaf mulch, inferring that my client was riding with negligence.

In calling for the officer’s notebook in cross examination of him, it was clear the officer had noted my client indicated he had lost his front wheel suddenly on hitting the mulch. In cross-examination of the officer it was established that the notebook was the totality of the content of the discussion with my client.  It was further conceded by the officer that my client had said nothing more.

It was conceded that there were many corners between where the officer saw my client in the ambulance and where the accident had occurred.

The obvious conclusion was that the officer could not correctly identify the exact corner of the crash and by inference had not attended the site as was stated. The officer’s questionable evidence was rejected, my client’s evidence favourably received and he was found not guilty.

Case 2

Oxley Highway businesses eventRiders on the Oxley Highway

Another client was riding his Ducati 748 down the Oxley Highway when he hit a wedge of tarmac, possibly caused by heat forming a lip in the soft asphalt. His bike was knocked into gravel on the opposite side of the road.

Again my client had a broken leg and the ambulance was called. A regional highway patrol officer turned up at the site about 20 minutes later. Again, he had not seen how the accident occurred and had no evidence from witnesses, but formed the view that as an accident had occurred my client must have been traveling too fast.

At the hearing, the prosecutor agreed with me that the highway patrol officer could not provide expert post accident crash analysis. That is the remit of the specially trained police crash investigation unit. The case was adjourned so representations could be made.

However, the officer chose to press on with the case. Even though the magistrate allowed the evidence — which I believe should not have been — he took into account the officer’s lack of expertise and was prepared to accept my client’s evidence. He dismissed the prosecution.


A mere accident does not automatically mean that the rider was negligent. The prosecution needs to establish that you were driving or riding without the standard of care and attention reasonably expected of the ordinary prudent driver.

Even if you run into the back of a vehicle that suddenly stops, it does not mean your manner of driving was negligent.

I defended a retired motorcycle highway patrol officer with significant riding experience who ran into the back of a car because he had to apply emergency braking right where there was a sudden change in the road condition. He was acquitted at hearing.

So, if you have to brake suddenly and do it on a patch of diesel causing you to run into the car in front that may not constitute negligence. The court has to take into account all the circumstances of the case as embodied in the legislation, a part of which is printed below:


Negligent, furious or reckless driving

117 Negligent, furious or reckless driving

(cf STM Act, s 42)

(1) A person must not drive a motor vehicle on a road negligently.

(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:

(a) the nature, condition and use of the road on which the offence is alleged to have been committed,

(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,

(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).

(Editor’s note: This is a NSW law, but there are similar rules in most jurisdictions.)

This relates to the specific circumstances of the particular incident and this is one situation where every case is different. No two situations are alike so they require careful analysis. Don’t assess your case based on someone you know who had a similar situation and got a certain result, as you could be very wrong.


This article is for reader information and interest only and is based on New South Wales law. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice.

Please be aware that every case is different and the matters raised may not be of specific relevance to your situation but may have a general application. You must seek specific advice tailored to your circumstances. Chris is happy to talk to anyone needing clarification. He can be contacted on 0418 211074.

Source: MotorbikeWriter.com

Is It Wise To Call Your Lawyer When In Trouble In Another State?

(Contributed post for our North American readers)

An accident can happen anywhere at any time, and this sense of precariousness will leave you feeling anxious and insecure. Having legal assistance ready at the dial is incredibly handy, but what if something happens and you find yourself in a predicament beyond the borders of your home state? Perhaps you are on a business trip in California and got into a major car accident – but you actually reside in Illinois, where all those who can help you, including friends, family, and your lawyer are also based. It might seem very confusing and scary figuring out what to do at first, and with good reason. The laws in each state are different, and wrapping your head around what your rights are is not the easiest thing to do in the heat of the moment. 

If you do get into trouble while traveling, you might want to keep in mind that there are specific laws that apply in different states. The following are a few tips to help illuminate the proper procedures for you.

What is the Jurisdiction?

Let’s start with the most basic issue: jurisdiction laws usually claim that from the state where the accident took place, you need to file a case. At the same time, plaintiffs do end up hiring the lawyer that they are familiar with from their state to help, and in this event, if this lawyer is going to represent you then they have to be recognized in the state. It doesn’t matter if you have gotten robbed or were involved in a car accident. It’s all the same, and so if you need an attorney to represent you in the state in which an accident occurred, they need to be licensed there. So if you’re from out of state and find yourself in California, for example, and your car gets wrecked, then action needs to be taken immediately. You may think that the first thing to do is call your lawyer, but it might be far more prudent to find a car accident lawyer in San Diego, CA, than to reach out to your lawyer back home in Illinois who is not certified to work in the other state. You could consult your lawyer to direct you to someone reliable in the current state to help you out. 

Alternative option

As an alternative option your lawyer can apply for a limited law license if you really value your lawyer’s work and trust them wholeheartedly. However, bear in mind that the states follow through on this option only in very specific instances and usually reserve them for legal aid services or public defenders. This is also something that may take up time unnecessarily, but it’s important to know that it is an option if you are adamant on having your own lawyer from out of state take on your case. 

In more extreme cases, the state makes exceptions and permit in-house counsel. This is when a company employs an attorney from out-of-state to plead their case. Again, this is a rarity, so it’s best not to bank on this being a solution since it depends on your own specific situation.

When the “writing is on the wall”

Hiring an in-state lawyer might be your best option, depending on the nature of your case. There are instances where you won’t have to be responsible for finding a lawyer. If, for example, you are involved in a car accident, then it’s important for you to know that often these kinds of cases are taken care of outside the court, and you’ll be provided with a lawyer, most likely by your insurance company. However, in some cases, it does go to court, and in the event that this happens, and you’re unable to work out a settlement, then it’s time to look for a lawyer yourself who is well versed with the laws of the state in question.

law lawyer justice crash accident legal courtImage: Pixabay

At the end of the day, getting into any kind of trouble when traveling is hugely taxing emotionally and psychologically. You will want to find the best person for the job, meaning the best match for you. It all comes down to sharing a mutual level of trust with your attorney – if you don’t trust the person tasked with protecting you, then it might be an uphill battle. Furthermore, you want to find someone able to work in the state in question. Hiring someone who works in an entirely different state from the scene of the crime might not be the best judgement call when all is considered.

Source: MotorbikeWriter.com

8 Mistakes to Avoid After a Motorbike Accident

(Contributed article for our North American readers)

Having a motorbike accident can be a very traumatizing experience, you’ll be shocked, scared and confused which will make it more likely that you’ll make mistakes which can heart your chances to get appropriate compensation from insurance companies. That money is rightfully yours and you’ll need it to cover medical bills and make up for the damage done to your motorbike.

There’s a stereotype about bikers being risky drivers which isn’t actually true. People assume it is because they’re the ones that tend to sustain more injuries in accidents because the vehicle in itself offers less protection than a car. The problem is you’ll already be dealing with a bias against you so you need to be well informed and prepared in case something like this happens to you. 

Mistake #1:  Leaving the Scene of the Accident

This is incriminating behavior; it implies that you caused the accident and that’s why you don’t want to stick around. To avoid problems, you should stay at the scene, speak to the police officers honestly but without making any speculations regarding speed, distance or any other factors that might have contributed to the crash happening. 

Mistake #2: Apologizing

Again, incriminating behavior. You might be a really nice person who apologizes when other people step on your toes but in this case, it can be interpreted as an admission of fault. That’s not something you want to do in front of the other drivers, the police or any witnesses. 

Mistake #3:  Agreeing to Not Have the Accident Reported

The other driver might be able to convince you, in your confused state, that it was your fault and going through the hassle of reporting the accident to the police and getting the insurance companies involved will do you more harm than good. Well, that’s a terrible idea. First of all, he or she is more likely to say this if they know that it is, in fact, their fault and if you don’t report it and get everything on record you may lose any chance for compensation.

Mistake #4: Leave Without Gathering Evidence

If you drive a motorbike it would be best to keep a camera on it at all times but if that’s not possible, you want to at least take pictures after any accidents. You want to record your injuries and damage to your bike. You should also preserve evidence like your helmet and what you were wearing. You’ll need it later on if you have to build a case. Getting the contact information from witnesses is also advisable because your attorney can contact them for you.

Mistake #5: Delaying Medical Care

Right after the accident, you’ll have a lot of adrenaline running through your body and you might not be able to accurately assess the severity of your injuries until hours or days later. That’s why it’s extremely important that you see a doctor as soon as possible. So, go to the hospital by ambulance or other means straight away. 

For one thing, by doing this you’ll be making sure you get the medical assistance you need. On top of that, you’ll have everything on record and you won’t give the insurance company the chance to throw doubt over your claims regarding the level of the health-related damage you sustained. Another decisive factor is to follow through with your treatment and keep all your appointments, since any gaps can be used against you.

Moreover, the legislation states that the injured party must seek to mitigate their damages and by following treatment you’re proving that you’re doing everything that’s asked of you to get better in the shortest amount of time. 

Mistake #6: Expecting the Other Party to Admit Fault

They might be just as sure of their innocence as you are, it’s human nature so you can’t really expect them to just roll over, admit they were the cause and deal with all the financial repercussions. That’s what would happen in an ideal world and wouldn’t it be nice if that’s how people treated each other? Unfortunately, that’s rarely the case. You’re better off not starting any sort of discussion about who is to blame with them, you might get angry and say something you’ll later regret or that they can use to undermine you.

Mistake #7: Be Naive About Insurance Companies

Your insurance company or the one of the other motorist will ask you to provide a recorded interview. Know that you have absolutely no obligation and you should decline doing so without representation since it might threaten your chances of getting compensation. 

It’s better to consult with a personal injury solicitor that can advise you on how to best protect your interests. People don’t realize that insurance companies are not looking out for them but for their drivers and their stakeholders. They have their own attorneys and adjusters to handle a claim right from the moment the accident is reported. You might think it’s better to cooperate with them every step of the way and all they’re trying to do is sort everything out to everyone’s advantage but, actually, it’s highly likely they’ll try to pay as little as possible.

Mistake #8: Post Information Regarding the Accident Online

As long as your personal injury claim hasn’t been resolved, you really should refrain from discussing the accident on social media. You might feel tempted to inform friends and acquaintances about your recovery but insurance adjusters can also access you profile and gather evidence to dispute claims. An online post or photo can be taken out of context and be interpreted in all sorts of ways you won’t like.  

Even if you’ve made some of these mistakes, it doesn’t mean you should lose all hope of getting what’s owed to you. Most riders will not be able to do everything perfectly after an accident since they’re human beings with emotional responses and can’t keep a cool head in all situations. Despite this, with patience, perseverance and the proper knowledge, they still manage to get a fair outcome.

Source: MotorbikeWriter.com

Payout refused on parking fall damage

Toowoomba riding trainer Tony Gallagher watched as his 2001 Kawasaki ZRX1200R sunk into thin bitumen and then fall over in a Crows Nest main street parking bay.

The incident caused about $1700 in damage to his bike that he uses in his business and ruined his $600 Shoei helmet.

To add insult to “injury”, Toowoomba Regional Council insurance officer Josie Hooper says council is not liable for compensation.Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.

“Under Section 37 of the Civil Liability Act, a road authority such as Council cannot be held liable for claims that arise out of alleged lack of maintenance, repair, or inspection of a road if, at the time of the damage, the road authority was unaware of the defect which allegedly caused the damage,” she says in an official letter to Tony two months after his complaint.

The bike was parked in a car parking bay, not one of the 16 special motorcycle bands allocated when Crows Nest became a Queensland’s second motorcycle friendly town in 2017.

Crows Nest Motorcycle Friendly Town spokesman Ron Anderson says he is not aware of any other motorcycles falling over in parking bays in town.

Fall from grace

Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.
Tony and his 2001 Kwaka

“The bike was parked for at least 10 minutes, maybe 15, before falling over. I saw it fall over,” Tony says.

“The bitumen beneath the sidestand failed and the stand sunk into the ground several inches.”

Tony contacted council who patched the hole before he left town on the day.

Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.
Patch repair

“The staff member who did the repair apologised to me,” Tony says.

“I would argue that they could have reasonably known that there was a fault with the road surface as there have been issues with the adjoining footpath and kerbing.

“As TRC are fully aware of these issues, the quality of the road surface where vehicles park should have been investigated and rectified prior to this incident. As such TRC have breached their duty of care.

“I went back the following Monday on my GPZ and noticed parks further up the hill are decaying — not obvious in the park I was in.Toowoomba riding trainer Tony Gallagher watched in horror as his Kawasaki ZRX1200R sunk into thin bitumen and tall over in a Crows Nest main street parking bay.

“Hardly a ‘Motorcycle Friendly Town’ if you can’t park your bike safely.”

Tony says the bitumen was about 10mm thick with mud underneath and suspects an underground water problem.

He returned to the site this week and says there is moisture coming from the patched repair.

The incident occurred on a mild April day, so there was no problem with melting tar.

Tony says he has witnesses who can prove his bike did not roll off the stand and was parked facing uphill.

No liability

Legal precedence shows that council is cannot be held liable if they did not know about the damage.

In her letter to Tony, Josie says their investigations found that council was unaware of “the specific characteristic of the road and/or car park you say caused the damage to the motorcycle”.

TRC says riders can report road damage to Customer Service on 131 872. Customer Service will create a ticket in the system to have the incident investigated by the relevant team in Council.

Source: MotorbikeWriter.com