the claim was civil, under the doctrine of negligence - i.e. to sue the person for damages.
this is a seperate claim as opposed to getting charged for a traffic offence, and for the insurer covering costs. It's got NOTHING to do with traffic offenses...
This is a pay-day action. If its true that the road was too narrow, the judge is saying it's not enough to show negligence to the required standard.. as in the settled legal definition... "to be so negligent, that no reasonable person in the circumstances would have done so/omitted"...
if the road was so narrow that a big truck couldn't reasonably pass without being slightly over the middle line, what was he s'posed to do? stop and do a U-turn? (potentially more dangerous) - it was found that it was open to the driver to assume that a bike, or even a car, would hug the LHS in such a situation to avoid being clipped by oncoming large truck.
tellingly, even the trial judge who allowed damages found the rider to be CONTRIBUTORILY NEGLIGENT (again, another settled legal defense to negligence) This is relevant too in victoria as IT IS POSSIBLE TO FIND CONTRIBUTORY NEGLIGENCE TO SUCH AN EXTENT THAT IT EXTINGUISHES THE CLAIM. (see torts act 58 vic)
and the appeal court so found. This is where the trucking co's barrister's comment came in "the loss only occured as the rider was riding too close" - i.e. he argued that his contribution was so high as it ought extinguish the claim. (nexus doctrine) "the loss would not have occured but for the rider's actions"
so in the circumstances, where the truck, not prohibited from that road, and not able to reasonably make the corner without venturing somewhat over the middle line - can you say the driver was so negligent that a resonable person would not have done the same thing in the circs?
probably not.
claim dismissed.
