A lot at stake

[Big RR]

maybe, maybe not; but I will presume the judge had a lot more evidence on where the two cyclists were situated than we do, and also knows (or had evidence presented as to) what the acceptable standards for bicycling are in Australia. Indeed based on the OP, the judge specifically found:

"The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff.

"The need to exercise reasonable care to avoid colliding with objects likely to cause the defendant to lose control of his bicycle was even more apparent because the cycleway on which the plaintiff and defendant were riding was immediately adjacent to a busy road."



No discussion that such a riding arrangement is negligient or placed any fault on the defendant.

He also concluded:

the defendant breached his duty of care to Mr Franklin and that the man's injuries were a result of Mr Blick's negligence.


These are specific findings and conclusions of a person who knows Australian law and had both sides present their evidence to him. Your conclusion is mere conjecture based on a small summary of the event and case. Saying he would not have been injured if he had not ridden so close is akin to saying he would not have been injured if he had not ridden a bike that day. Just as his riding of his bike was not negligent, it appears the way he was riding it was not either.

[MajGenl.Meade]

The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant

...and so too was the plaintiff aware that he was riding his bicycle adjacent to the defendant... Is the presumption that if the defendant had "swerved" (that is, to avoid the obstacle) and banged into the whinging loser, causing the same problem, then he would have reacted properly to the obstacle and thus not be liable? Of course not... the poor bastard gets stiffed no matter what he does because the plaintiff was too damn close for safety.

adjacent

Adjacent means close to or near something. You may consider the people up and down your street to be neighbors, but your next door neighbor is the person who lives in the house or apartment adjacent to yours.

Adjacent can refer to two things that touch each other or have the same wall or border. And the adjective is often followed by the preposition to: Her office is adjacent to mine. This word is from Latin adjacere "to lie near," from the prefix ad- "to" plus jacere "to lie, throw."

DEFINITIONS OF:

adj
having a common boundary or edge; abutting; touching
Synonyms:conterminous, contiguous, neighboring, connected
joined or linked together

adj
nearest in space or position; immediately adjoining without intervening space
“had adjacent rooms”
Synonyms:next, side by side, close
at or within a short distance in space or time or having elements near each other

adj
near or close to but not necessarily touching
“lands adjacent to the mountains”
“New York and adjacent cities”
Synonyms close, near, nigh
not far distant in time or space or degree or circumstances

[Big RR]

Is the presumption that if the defendant had "swerved" (that is, to avoid the obstacle) and banged into the whinging loser, causing the same problem, then he would have reacted properly to the obstacle and thus not be liable? Of course not... the poor bastard gets stiffed no matter what he does because the plaintiff was too damn close for safety.

That's what you say; this is what the judge, who had all the evidence in front of him found:

"The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant, so that any loss of control of the defendant's bicycle presented a risk of injury to the plaintiff.

"The need to exercise reasonable care to avoid colliding with objects likely to cause the defendant to lose control of his bicycle was even more apparent because the cycle way on which the plaintiff and defendant were riding was immediately adjacent to a busy road."

So apparently the judge thought there was a way the defendant could have avoided the collision safely; why do you maintain he could not? I would imagine he could have chosen to stop or swerve the other way to avoid pushing the defendant into the path of the oncoming car.

As for your conclusion that the plaintiff was too damn close for safety, I again defer to the judge who had all the evidence in front of him and understands Australian law and practice. As Sue said, if the Plaintiff's conduct constituted contributory negligence, it would have been raised by the defendant and addressed by the court; that it was not makes me think that the plain tiff was not too damn close for safety.

Why are you so quick to rush to judgment and say the judge's ruling was in error based on a few paragraphs of description of what occurred? Do you honestly think you have a better understanding of what occurred based on this short article than the judge who presided at the trial and heard all he evidence presented? I'll defer to the judge until it can be shown to me by evidence that he was wrong.

[MajGenl.Meade]

Sorry, did I say the judge was in error? Missed that. If anything, I'd say the defendant's lawyer was in error in not aggressively blaming the victim for his carelessness in draughting.

Besides all that, I think it's unpleasant and unmanly for the plaintiff to sue a friend over an accident. That's why they are called "accidents" because they are unintentional.

And you seem to be asserting that the judge does not know the meaning of "adjacent". I suppose that's possible.

[Big RR]

Sorry, did I say the judge was in error? Missed that. If anything, I'd say the defendant's lawyer was in error in not aggressively blaming the victim for his carelessness in draughting

Maybe the attorney was negligent in how he prepared his case, maybe not--we really don't know. It is quite possible that the plaintiffs conduct was not a factor, and that the defendant just chose poorly when faced with the stake in the road--that is the meaning of negligence. The judge appeared to have known the persons were riding adjacent to one another (see his quoted words) and did not make any finding of contributory negligence.

And you seem to be asserting that the judge does not know the meaning of "adjacent". I suppose that's possible.

where do you see that? I said that is was quite possible the defendant could have swerved the other way (away from the adjacent defendant) or stopped before he hit the stake. Neither of those requires any strained meaning of the word "adjacent".

Besides all that, I think it's unpleasant and unmanly for the plaintiff to sue a friend over an accident. That's why they are called "accidents" because they are unintentional.

Negligence is unintentional too. And this wasn't just a scrape but serious injuries which will affect the plaintiff for the rest of his life, all because of the unintentional actions of the defendant. Is it unmanly to think the persons at fault (even unintentionally) should pay for the consequences of his unintentional actions? Personally I would think it unmanly not to take responsibility for the damage you caused, whether intentionally or by negligence.

ETA: By way of example, let's assume you and I are best friends and live next store to each other. One day I pull out of my driveway and run over your 3 year old son, injuring him critically; it turns out he will need expensive medical care for the rest of his life, never be able to work, and need persons employed to take care of his basic needs. I didn't mean to run him over--in fact I am near as distraught as you bout it. but the fact is that I backed out without taking proper precautions knowing kids run around the neighborhood and could be hurt; just that one time a I was little less attentive and it produced disastrous results. Is it unmanly of you to demand compensation to help deal with medical bills, extraordinary future expenses, and the damage I caused? Or is it unmanly of me to say I didn't mean it, so I owe you nothing?

[Sue U]

Sorry, did I say the judge was in error? Missed that. If anything, I'd say the defendant's lawyer was in error in not aggressively blaming the victim for his carelessness in draughting.

That's the ticket, keep blaming the victim regardless of whether there is any evidence he did anything wrong, and in spite of the fact that there is clear and uncontested evidence that defendant Mr. Blick was negligent. If there had been evidence of comparative/contributory negligence, it would have been put before the court. That is not clever lawyering, that is the most basic element of Tort Defense 101. Apparently, defense counsel simply could not make a good-faith argument that Mr. Franklin was in any way negligent -- in precisely the same way they could not make a good-faith argument that the motorist into whose path he was thrown was negligent.

Why are you so determined to absolve an at-fault party of responsibility for his actions? Mr. Blick simply failed to take reasonable care to observe the hazard in the bike path or, having observed it, failed to take reasonable care to avoid hitting it, and instead plowed right into it and lost control of his bicycle. Worse, this occurred in an area that actually required heightened vigilance and care due to the substantial dangers posed by the motor vehicle traffic at hand; it's not as if carelessness here would result in nothing more than a spill into a bed of daisies.

Besides all that, I think it's unpleasant and unmanly for the plaintiff to sue a friend over an accident. That's why they are called "accidents" because they are unintentional.

Unpleasant, perhaps, but "unmanly"?????? Testosterone somehow forbids holding a responsible party to account??? Seriously?????

And they are called "accidents" because if they were intentional, they'd be called "crimes." But accidents are by far most frequently caused by someone failing to exercise reasonable care under the circumstances. Not intentionally, but negligently. In other words, someone fucked up, usually because they weren't paying attention or were acting foolishly. And when someone's negligent actions cause another person injury, why shouldn't s/he be held responsible for that? Yes, it's an accident. So what? Just because the event was unintentional, that hardly means that no one was at fault.

I really don't get why you are so intent on giving someone a pass for carelessness that resulted in crippling and life-altering injury. What positive social policy do you think that advances?

[Guinevere]

I think I've mentioned this before --- I fell backwards off a chair, through a screen, and off a porch at a friend's house (the chair was old and had a broken leg, not apparent to an unwitting guest). I went backwards and down, hit my head and passed out. I was lucky I didn't break my neck. I ended up in the ER and then recovered at their home for a few days before I was well enough to drive back to DC. I had not a penny of out of pocket costs because they arranged with the hospital and ambulance company to get all the bills sent to them. They certainly didn't mean for me to get hurt, and I sure didn't intend to either --- but at least they took care of me and my expenses.

[Guinevere]

Do neither of you (Sue and BigRR) recall that Meade used to work for/brokered insurance? That explains everything about his perspective. Plaintiffs (and Plaintiffs' attorneys) bad. Defendants (and insurers) not responsible for anything. It's all just "accidental."

[MajGenl.Meade]

Mr Franklin should not have be riding so close to Mr Blik.

maybe, maybe not; but I will presume the judge had a lot more evidence on where the two cyclists were situated. . .The defendant was aware that the plaintiff was riding his bicycle adjacent to the defendant

adjacent . . . means close to

etc. etc. etc.

So you'd much happier if oldr had written "should not have been riding so adjacently"??? If they hadn't been too close, this wouldn't have happened. Period. It's a scientific fact. Here's a chart:



You appear to skip the point that they both knew they were riding bicycles; they both knew they were too close (in the event that something bad happened); and they both failed to avoid a foreseeable accident. Unless of course it is easier to see a piece of wood (or whatever) laying in the path than it is to see a great hairy mammoth on a cycle wobble away from a collision with said object and fail to avoid the falling chum.

As to supposing - it's reasonable to suppose that "adjacent" means... well.... "adjacent". It is whole-cloth manufacture to suddenly conjure up yards of space on the other side of the stake into which the defendant could safely have fallen off his bicycle or swerved to avoid it without banging into the guy who was riding in his hip pocket or stopping dead without having his ex-friend's handlebars shoved up his jacksie.

Your ETA - you ran over my kid? You die, you bastard! No wait a bit. You have insurance don't you? We have a beer together and agree that I'm going to make an insurance claim - you agree because you're a manly responsible person and we all live happily ever after. Except for Binkie of course - you maimed Binkie, probably permanently, you swine. But less seriously, you beg the question and assume that you were in fact not paying attention - not that Binkie jumped out from hiding. I'd expect you to do whatever you could to assist of your own volition. Not because I sued you. Besides, this is the USA and not Australia where the nanny-state will be looking after this chap anyway.

[MajGenl.Meade]

As to insurance, no not at all. I think insurance should be compulsory for everything and was happy when my own company kept our clients whole rather than not meeting their (company) obligations. I also knew some real asshats who tried to make claims for compensation when it was their own negligence that was at issue. I think Guin's post about people taking care of her injuries after the accident is exactly pertinent. They must have been well-off - surprising they didn't make a claim under their homeowners liability policy. Sounds like exactly the kind of thing that's covered.

Lest we forget... Shakespeare didn't suggest starting by killing off the insurers... though he might have done had any such existed at the time

[Guinevere]

Lest we forget (or, perhaps you should read the play and not just quote out of context), Shakespeare's line was about getting rid of the bastions of democracy and those standing between the rule of law and anarchy.

Pretty sure you *cannot* say the same thing about premium collection companies…..

[Lord Jim]

Do neither of you (Sue and BigRR) recall that Meade used to work for/brokered insurance? That explains everything about his perspective.

As I review this discussion, I see three attorneys lined up on one side, and Everybody Else on the other...

That explains everything I need to know about how one's line of work colors one's "perspective" on this...

[Guinevere]

The only position I've taken is on the snide lawyer bashing. Oh, and on the "unmanliness" idea. I don't know enough about the case to make any judgments pro or con.

I think its worth mentioning that most cases here in liberal Massachusetts do not even get to a jury, and those that do, about 1/3 or so get a plaintiff's verdict. Which leads me to conclude the judge/jury must have seen something to make them find the way they did here.

[Big RR]

Guin--something similar happened to me; I was helping a friend move some furniture and we slipped on the driveway with a dresser--it fell on me and I broke my leg. this was back when health insurance paid pretty much everything for emergencies, so I just had him take me to the ER and gave them my card. He offered to pay for everything, but I said no; I don't think I would have been so accommodating if it was a broken back or neck, but I was happy not to be hurt, and happy he was "unmanly" enough to offer to pay my expenses. Accidents happen, but sometimes you will need the help if injuries are severe.

As for insurance brokers, maybe that's why they call it accident insurance--so they are never responsible for any payments.

Meade--

You appear to skip the point that they both knew they were riding bicycles; they both knew they were too close (in the event that something bad happened); and they both failed to avoid a foreseeable accident.

, You appear to skip the point that they both knew they were riding bicycles; they both knew they were too close (in the event that something bad happened); and they both failed to avoid a foreseeable accident.[/quote]

Yes to point 1, no to point 2 (where was it shown that either knew (or even should have known) that?), no to point 3 (the judge, who saw the evidence ruled that Blick failed to take proper actions to avoid the accident--there is no evidence or finding that Franklin did anything wrong).

It is whole-cloth manufacture to suddenly conjure up yards of space on the other side of the stake into which the defendant could safely have fallen off his bicycle or swerved to avoid it without banging into the guy who was riding in his hip pocket or stopping dead without having his ex-friend's handlebars shoved up his jacksie.

Guilty as charged; I was merely trying to show that the judge's conclusions comported with the facts a presented. but again, I defer to the judge who heard the evidence and ruled accordingly.

As for

We have a beer together and agree that I'm going to make an insurance claim - you agree because you're a manly responsible person and we all live happily ever after.

Try getting a settlement that big and comprehensive without a lawsuit--good luck. Insurers don't make money by paying claims.

not Australia where the nanny-state will be looking after this chap anyway

Oh I see, push the loss onot everyone and deny any personal responsibility.

[Guinevere]

Oh yes, and I do have one question. Gob, did you hire a lawyer in your motorbike accident situation?

[MajGenl.Meade]

ETA

Try getting a settlement that big and comprehensive without a lawsuit--good luck. Insurers don't make money by paying claims.

You're right - a suit usually is filed in such mega-cases since one set of lawyers inflates the claim while the other set seeks to reduce it. Rarely does Joe Blow say "give me 10 millon dollars" and the insurance company says "Ok then, here it is". As to the second, insurers don't make money by paying claims - they make money by collecting more in premium than they pay in claims. And they collect premium by providing satisfactory service to their clients so they don't leave and new ones are attracted to the products. Not paying claims is a real bad idea as far as that goes. When claims exceed premiums, insurance companies often cease selling certain products (or price them uncompetitively so their agents can't sell them) in certain areas or even universally until loss ratios improve.

happy he was "unmanly" enough

Pay attention in class! That's manly - not unmanly. Unmanly is suing a friend.

Yes to point 1, no to point 2 (where was it shown that either knew (or even should have known) that?), no to point 3 (the judge, who saw the evidence ruled that Blick failed to take proper actions to avoid the accident--there is no evidence or finding that Franklin did anything wrong).

Ah - so the defendant could not (nay "should not') have foreseen that in the event of a loss of control (for any cause) he might cause hurt to the plaintiff who was of course invisible and a long way off? Driving too closely is not "failing to take proper actions to avoid" an accident? Biff deliberately and with malice aforethought ploughed into a huge tree that he'd spotted an hour before, waited ten minutes for the nearest cyclist to turn up (coincidentally, a friend) and then hurled himself and his machine into the unsuspecting victim....

those standing between the rule of law and anarchy

Well I'm the last to deny that lawyers position themselves somewhere between law and anarchy. One must stand somewhere

What lawyer bashing? I was plaintiff bashing and later suggested that his lawyer didn't do a very good job of pointing out the mitigation of the plaintiff's travelling too close for HIM to avoid an accident. Since the judge didn't even mention that aspect, it proves the lawyer didn't bring it up - don't it? M'lud. (Must look up 'argument from silence'. Hmmm)

And by the way, insurance companies don't "fight" anything - that's why they have lawyers. Who in contrast to insurance companies don't pay out millions in justified claims but instead collect millions whether justified or not and have associations that protect each other ferociously even in clear cases of wrongdoing so the shingle is not broken.

If we're all done with rash generalizations that's fine with me, by the way. But I'll call a halt myself (for now)

[Sue U]

As I review this discussion, I see three attorneys lined up on one side, and Everybody Else on the other...

That explains everything I need to know about how one's line of work colors one's "perspective" on this...

Obviously, you shouldn't listen to anyone who actually has professional expertise in a particular field; after all, what would they know?

[Lord Jim]

I was fully expecting you to say something condescending just like that Sue...

Thanks for stepping up



.

[MajGenl.Meade]

Do neither of you (Sue and BigRR) recall that Meade used to work for/brokered insurance? That explains everything about his perspective. Plaintiffs (and Plaintiffs' attorneys) bad. Defendants (and insurers) not responsible for anything. It's all just "accidental."

Obviously, you shouldn't listen to anyone who actually has professional expertise in a particular field; after all, what would they know?

Lawyer fight! Lawyer fight!



Ain't they cute?

[Joe Guy]

What is legal is not always logical to most people who aren't lawyers. This "argument" is comprised of two sides arguing different issues, in my opinion. One side is the legal argument and the other is the logical argument.

Lawyers can argue about their legal interpretations and people ( ) can argue logical perceptions but legal against logical are separate arguments and result in both sides not getting it.

yrs,

Jological Guy