Road rage assaults have doubled in the last 5 years – can injured victims of road rage claim compensation? Attwood Marshall Lawyers Compensation Law Partner and Qld Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche, talks about this hot topic and provides advice to road rage victims.
Several high profile cases have put the spotlight squarely on road rage incidents. The trial of a New Zealand man who punched a man following a road rage incident is on trial for manslaughter after the man fell backwards onto the road and was run over by a truck. It appears the men got out of their cars after there was some tailgating, gestures and abuse. The case highlights the dangers of getting out of your vehicle following an altercation on the road. In this case it has had the most serious consequences with a man dying and another charged with a very serious criminal offence. The jury in the criminal case were discharged after they could not reach a verdict (a hung jury).
The family of the deceased man may have a dependency claim that could be brought against the person who punched him and/or the driver of the truck that ran him over (it may be difficult to establish negligence against the driver of the truck). This claim would be brought against the CTP Insurance Company of the vehicle of the driver at fault – this is the insurance for personal injury claims that attaches to our car registration. If the vehicle is unidentified or unregistered, a claim can be brought against the Nominal Defendant.
Leaving aside the consequences of possible criminal charges being laid against aggressors in a road rage incident, we receive an increasing number of enquiries from victims of road rage incidents who are either attacked while in their car or alternatively, have been run over or struck by the other vehicle as a pedestrian. Whilst it is a more difficult proposition to establish a claim for damages for personal injuries under the provisions of the compulsory third party insurance attached to your motor vehicle in circumstances where you are attacked in your own vehicle, it is a different matter when you are struck while you are a pedestrian by another vehicle.
The classic case of a road rage incident resulting in a pedestrian being run over would be where two vehicles stop after an altercation with one driver getting out of his car. The other driver either through fear for their own safety or in a deliberate attempt to injure the other driver, runs over that pedestrian with their motor vehicle. As a general rule of thumb, drivers of motor vehicles owe a very high duty of care to any pedestrian no matter what the circumstances are. The reasoning behind this is that a driver of a car has a potential lethal weapon if it comes into contact with unprotected pedestrians. There are exceptions to this general rule of thumb at law:-
a). It is a complete defence against any claim by a pedestrian if it is found there was a ‘voluntary assumption of risk’. For example, if the driver of the car was merely attempting to get away from the pedestrian and the pedestrian threw himself onto the bonnet of the car or attempted to deliberately stand in front of the car to stop it so that they could assault the driver, it would be very difficult for the injured pedestrian to lodge a claim for damages in negligence against the driver. Voluntary assumption of risk under the Civil Liability Act 2003 is a complete defence to any claim made; and
b). A reduction in liability for ‘contributory negligence’. Contributory negligence is a much lesser qualification and is not a complete defence. Normally an injured person’s claim is only reduced by the percentage that they are found to be responsible for the accident happening. For example, if in the same circumstances the pedestrian got out of his car but was run over by the other driver deliberately, although there may be some reduction made for the driver getting out of his vehicle when he should not have done so, it would be difficult to argue that there was not a significant fault on the part of the driver.
Without doubt the most common claim that we experience in our office is where the driver of one of the vehicles involved in the road rage incident collides with the other car causing damage and injury to its occupants or alternatively, where a pedestrian is run over by a car after getting out of their car at the scene. Each accident rests on its own facts and there is no hard and fast rule that applies to all circumstances. However, the less that the injured person has contributed to the accident happening (or has been the aggressor in the road rage), the better it is in terms of the compensation that they may recover for any injuries. Whilst it is difficult to imagine why anyone would get out of their car after experiencing problems on the road with an aggressive driver of another vehicle, it often happens and results in serious injuries.
There has been a huge increase in serious road rage incidents in recent years and this has been confirmed by a study that was carried out in Victoria where road rage assaults had doubled in certain areas over the past 5 years. The road rage does not appear to respect the usual behavioural norms. There was a recent high profile case on the central coast of NSW where a man was caught on a vehicle’s dash cam assaulting a female passenger in the car in front of him by punching her in the face.
It is not always an answer to remain in your vehicle if approached by a road rage aggressor. There have been many incidents where the aggressor or a number of them have damaged the other motor vehicle, smashed windows and assaulted the occupants of the car despite them doing the right thing and staying in their vehicle. There does not appear to be any easy answer to remove yourself from the scene of such violence but it appears the best advice is to call the police and if possible do whatever you can to get away from the car or people attempting to attack you.
Anyone who is involved in a road rage incident should obtain legal advice in the event that they are injured or suffer any psychological condition. There are strict time limits associated with claims being made under the compulsory third party provisions.
In QLD, claim forms must be lodged within 9 months of the accident – but can be lodged anytime within 3 years of the accident with a reasonable excuse for the delay. Claims made after the 3 years will usually be statute-barred. In QLD, if the defendant vehicle is unregistered, or unable to be properly identified, the claim must be made against the Nominal Defendant – and if the claim is not lodged within 9 months of the accident, it will be statute-barred at that point. This date is final and cannot be extended.
In NSW, claim forms must be lodged within 6 months of the accident (if the date of accident predates 1 December 2017) or within 3 months (if the date of accident is 1 December 2017 or later). These claims may still be lodged after those time frames (within 3 years of the accident) if there is a full and satisfactory reason for the delay.
As with all personal injury claims, we strongly recommend obtaining legal advice about your rights to claim as soon as possible as there are strict time limits that may be fatal to your entitlements to claim compensation.