Who Is At Fault

[kelpiecuddles]

So if you get run over crossing the road at a crossing it's your fault because you're on a roadway where cars are driven?

If you were at a crossing and a car didn't stop then the driver of the car is at fault but if you are driving and someone runs in front of your car and you had no reasonable ability to stop then it is deemed to be an accident and the driver can be cleared of fault. In this case I would think that a crossing would be the equivalent of an ON lead area, in this case it occurred in an area where dogs were reasonably allowed to be off lead and was purely an accident.

I see your point about loss of income, etc but this is why you have things like income protection insurance, especially if you are paying a mortgage or similar, sometimes accidents happen and they aren't really anyone's fault, my mum tripped over a paver in her yard a couple of weeks ago and broke a wrist, ribs, cut her head open and sprained the other wrist, she's off work because she can't type, etc. Maybe she could sue the person who lay the pavers...

[trifecta]

Surely you use dog parks at your own risk?

[dididog]

I'd be questioning the owner deliberately reducing her senses and ability to foresee danger while in a dog park with her dog, so many other things could have happened, you need your full whits about you when encountering unknown animals. It is a shared space where both dogs and people have to co exist, it is unreasonable to expect the dogs (the ones incapable of judging situations and acting accordingly) to be the ones purely responsible in an accident. If I was walking on a shared bike path with headphones in and moved into the path of cyclists who could not stop in time because I did not hear their bell and the cyclist broke my foot I would class that as an accident. I would also acknowledge that if I had actually been paying any attention to my surroundings which I know are shared with potential danger I probably would've heard the bike and not been in its way.

[Steph M]

So if you get run over crossing the road at a crossing it's your fault because you're on a roadway where cars are driven?

If you're wearing headphones and not looking that certainly comes into account.

[Steph M]

If that were me, and most anyone I know I think of be telling myself I was a fool. Who would she sue had she tripped over a fallen branch? Or a puddle?

Sometimes shite just happens and I personally can't imagine scowling my way around life looking for someone to blame for everything.

[OSoSwift]

I agree, it is a shit happens. She should have been more aware of her surroundings. If the dog ran at her and couldn't be recalled then different story. Mine own dogs have taken me out in such a manner.

If it was an onlead area, then yes dog owners would be at fault.

[Steph M]

I agree, it is a shit happens. She should have been more aware of her surroundings. If the dog ran at her and couldn't be recalled then different story. Mine own dogs have taken me out in such a manner.

If it was an onlead area, then yes dog owners would be at fault.

Hahaha, mine too now you mention it, almost daily some weeks.

Can we sue anyone for that? I have lost a few good cups of tea that way!

[OSoSwift]

My husbands BC took me out at speed and sent me flying big time. I landed on my head and shoulder before the rest of me hit the ground hard, giving me an instant thumping headache, skinned arm, back and hip and a very very sore pelvis. The fact he took me out on compacted gravel didn't help. Wonder who I can sue for that?? his breeder?

Edited March 5, 2014 by OSoSwift

[kelpiecuddles]

No, your husband of course, it was his dog after all.

[Erny]

It's not like they were aggressive, they were simply playing. It was an accident. I don't think anyone's responsible. Why is it these days someone always wants to blame someone else.

I agree with the above. Accidents do happen.

Picture a bunch of children happily playing ball or some such, but because two children are focused on catching the ball, they collide with each other as they run.

Who is at fault? ….. They were playing. An accident happened. There was no negligence. There was no malicious intent.

Should we stop children playing???

[keetamouse]

I worry about all these people walking the streets, shopping malls, supermarkets anywhere really with head phones on and using their phone's and texting, they have nearly walked straight into me and if I didn't stamp my foot and say loudly "watch where you are going" it is a real issue with me, you see on youtube people falling off trains stations, into on coming traffic, same thing "watch what you are doing.

[dancinbcs]

Off lead area or not you must have effective control of your dog and that means making sure they do not interfere with any other person or dog that does not want to interact with them. If your dog cannot be recalled instantly it should not be off lead if any other person or dog is in the area and they have not given you permission to allow your dog near them. I have no idea where this notion of an off lead area as a free for all, for dogs to do as they like, came from. An off lead area should be somewhere dogs can be trained off lead, play fetch or just run around, so long as they do not cause any issue with anyone else. Public parks are just that and anyone can walk in an off lead area and should be safe from being injured by dogs.

[SchnauzerMax]

...If you were at a crossing and a car didn't stop then the driver of the car is at fault but if you are driving and someone runs in front of your car and you had no reasonable ability to stop then it is deemed to be an accident and the driver can be cleared of fault. ---..

Um, I don't think this is true. I think in the first case it becomes negligent driving occasioning bodily harm or death (or whatever they call it these days - I think the term is different in different states) and in the second case it may be just a negligent driving charge and 3 points on your license.

I do remember a case that was in the news some time ago. A lady was driving through a 40kph school zone and hit a child who ran out in front of her. I think the child died. It went to court and her defense was that she was doing less than the speed limit so it wasn't her fault. She lost the court case and I think did jail time.

I think the summary was if a car hits a pedestrian, the car driver is automatically at fault.

[sandgrubber]

Why does someone have to be at fault?

I agree with the majority of posts . . . accidents happen. I hate the notion that there's always blame to be pinned on someone.

[OSoSwift]

No, your husband of course, it was his dog after all.

Thats what I told him when I rang him because I was having difficulty getting up and he was out at sea! Maybe that is why I got the horse for my birthday???????

What happens if my dog/s are playing, person as in previously mentioned case senario. I call dog, it turns as fast as possible, isn't looking at person and something similar happens?, dog is recalling as instantly as possible.

I don't do off lead dog areas and I do not see off lead areas as free for all areas at all. However to be honest sometimes shit does happen and it is an accident pure and simple.

I believe walkign around with your ears plugged in is extremely rude and it annoys the crap out of me. People have no idea of their surroundings, not only could they get hurt or injured, they hurt and injure others because they have no idea what the hell is going on around them. My kids are taller now so more easily seen, but the amount of times I had to body block someone or whisk my kids out of the way whilst we were going about our business was amazing.

Edited March 5, 2014 by OSoSwift

[madredeperros]

I agree that it was just an accident. I've been knocked over by my OWN dogs in my own backyard, and I WAS paying attention. Some dogs just don't have good brakes or get tunnel vision while they're playing. I still remember the amount of times I had to dodge our old Great Dane when she would come back on recall. No brakes. Blew out my knees once or twice as she knocked me flat.

And to wear headphones is just silly. What if it was during a football game, and the ball just happened to veer off and hit her in the head? Does she sue the player for kicking wild? People need to pay more attention to their surroundings, instead of blaming everyone or everything.

Edited March 5, 2014 by madredeperros

[zeebie]

The difficulty lies in the fact the lady did not request medical assistance immediately it happened (calling ambulance), also she waited sometime before investigating all this makes it so much harder.

2 examples :- A man was with his 2 BC at fully enclosed dog specific off lead area which also contained and enclosed human seating area around a table. After around 30mins of throwing ball and dogs exercising he started to leave area as he walked toward gate another person and their dog was entering, 3 large breed dogs raced to greet newcomer one dog crashed into the man severely injuring his leg (knee dislocation and other injury).A fellow park user was an off duty paramedic and there were also 2 other medical people there, help was summoned and man was kept comfortable etc. As he was a regular he knew everyone and the dogs, he had a letter written by a solicitor to the owner of the dog who had run into him, advising of his injuries, loss of work and pain and suffering and his intention to take legal action to get compensation from the owner based on 'failure of duty of care' to maintain complete control over his dog at all times while in the area, as per the sign at both gate entrances which clearly stated that was a requirement of using the area. Litigation commenced and he won and was paid by the owner of the dog so all very upsetting for everyone.

2nd situation involved a person who walked his dog everyday from his home to local sports oval where he would throw balls for the dog, this person had been cautioned several times by local council officers for breaking the law in regards allowing dog to 'roam at large in a public place' (not on a lead),one afternoon when he took the dog to the park it was running very fast (large breed dog) to retrieve the ball and ran into a child on a bike riding along the bikeway adjoining the park. Child was injured as was dog when it hit the metal bike and became entangled in the wheel spokes as the bike fell, owner was subsequently charged for reckless endangerment and causing undue harm to the child, as well as a couple of other breaches by the council.

So it can happen and people can be sued, sad times when we now have to take out public liability insurance just to walk our dogs.

As for the lady who was walking her small dog in a public place irrespective of the headphones, what if she was profoundly deaf would this still make her in the wrong as she would not have heard the dogs coming anyway. Everyone has to start to be more responsible and accountable for their animals especially when out in public area's. JIMHO

Edited March 6, 2014 by zeebie

[~Anne~]

Thanks zeebie. I suspected that there would be cases that had already occurred and the owner of the dogs deemed at fault.

I find it interesting that most people have also just assumed I am one that supports unnecessary litigation. I understand the concept of accident quite clearly. I am not so sure I understand the complete definition of negligence though and have been very surprised over the years about what the reasons people instigate litigation.

The tree branch falling and killing is an interesting one that was mentioned. There was a recent publicised case about this very thing occurring. A young child tragically died as a result. There is now an enquiry as I understand. It appears it was an accident of nature. But is that the way it will be viewed legally? Time will tell.

Edited March 5, 2014 by ~Anne~

[Kirislin]

"an act of DOG"

[Odin-Genie]

...If you were at a crossing and a car didn't stop then the driver of the car is at fault but if you are driving and someone runs in front of your car and you had no reasonable ability to stop then it is deemed to be an accident and the driver can be cleared of fault. ---..

Um, I don't think this is true. I think in the first case it becomes negligent driving occasioning bodily harm or death (or whatever they call it these days - I think the term is different in different states) and in the second case it may be just a negligent driving charge and 3 points on your license.

I do remember a case that was in the news some time ago. A lady was driving through a 40kph school zone and hit a child who ran out in front of her. I think the child died. It went to court and her defense was that she was doing less than the speed limit so it wasn't her fault. She lost the court case and I think did jail time.

I think the summary was if a car hits a pedestrian, the car driver is automatically at fault.

This is a quote from the JOHNS v COSGROVE & Ors case, delivered by Judge Derrington:

the law does not relieve drivers of motor-vehicles from all duty of care to avoid injuring vulnerable persons such as children or intoxicated persons when that person's abnormal condition is clearly visible and the danger reasonably foreseeable at a time when the motorist can avoid it by prudent precautions...

Because of the gravity of the damage that may be inflicted upon a pedestrian by a motor-car, its driver is required to take appropriately higher precautions to avoid injury to others, even to those who place themselves in a position of danger through irresponsibility such as drunkenness or skylarking or even serious negligence: cf Teubner v Humble (1963) 108 CLR 491; Kilminster v Rule (supra) at 46. It would not however apply to the case of an ordinary pedestrian who shows no sign of irrational behaviour nor to one whose presence cannot be observed until too late: cf Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. In the comparative attribution of fault, the capacity to inflict injury through the motor-vehicle is so weighted that, on the comparative scale, it elevates the liability of a driver whose fault may be small in comparing it with the more irresponsible behaviour of the victim. This is a principle of legal liability rather than one of moral responsibility, and it runs through all the pedestrian cases.

In this case, while I think the owner of the small dog was irresponsible and should not have been wearing headphones in an area where dogs obviously play offlead (and should not hold the other dog owners liable for her injuries), I also think that if the dog owners were watching their dogs and saw this woman walking close to their playing dogs, they should have called their dogs back.