Injured in a Road Rage Incident. Can I Sue?

TGB Personal Injury Lawyer Mal Byrne writes about the compensation options for victims of road rage in South Australia.

IMPORTANT: Major changes to South Australia’s motor accident compensation scheme start from 1 July, 2013. For people injured in accidents from 1 July onwards, entitlements change significantly. Click here to find out how.

The phenomenon of road rage seems to be a quintessential 21st century malaise.  The period of relative prosperity in Australia in the last decade seemed to infect us with such a strong sense of entitlement, and we began to believe that this entitlement extended to the road as much as it did to the home or the workplace.  The days of a gentle honking of the horn or even the occasional two fingered salute have morphed into harassment, tit for tat provocation and even physical confrontation and violence.  I don’t sense that society has evolved since the last two global financial crises to the point where road rage has disappeared.  Unfortunately, it is here to stay and the law has to deal with it.

So, what if you get injured as a result of a road rage incident or accident?  What rights do you have?  Firstly, if the road rage occurs whilst you are at work, you can claim workers compensation.  This does not mean that you can claim workers compensation if the road rage occurs during a journey from your home to your place of work or the return journey at the end of your working day.  You can only claim workers compensation for road rage incidents that occur as a result of journeys that are purely work related.  For example, a courier driver who is injured in a road rage that occurs during a delivery will be able to claim workers compensation.  The same would apply to a truck driver, a travelling sales person or a pizza delivery driver, as long as the journey is not from home to work or vice versa.

However, what can someone do if the road rage occurred on the journey to or from work, or what if it has nothing to do with their job?  Road rage is an offence, so if you are injured as a result of a road rage perpetrated by another party, you can claim compensation under the Victims of Crime Act 2001.  However, the benefits available under that legislation are small and there is a significant threshold of injury that you need to have suffered before you can claim anything at all.  The offender also has to be charged and either plead guilty or be convicted. If the offender is not charged, you have to satisfy police and the Crown that the offence occurred beyond a reasonable doubt.

You may be able to sue the offender if they have home and contents insurance as some policies cover inappropriate behaviour outside of the home.  Once again, you need to ascertain the identity of the offender, prove that the incident occurred as you stated and that you have suffered injury as a result.

Depending on the facts of the road rage incident, you may also be able to make a third party claim under the Motor Vehicles Act.  Many people make the mistake of thinking that because road rage involves malice and intent and because it’s criminal conduct, it is not a third party claim and that third party claims are confined to accidents where there is no malice.  That is not the case.  Third party claims cover not only unintentional accidents, but road rage.  The key is that third party claims cover any injury that arises out of the “use” of a motor vehicle. Of course, you can only claim if you are the victim of the road rage, not the perpetrator.

Furthermore, if the other party initiates the conduct you may not be able to claim, or your compensation could be reduced if you retaliate in any way.

Where things can become complex is where a road rage is protracted and involves not only conduct associated with the use of a motor vehicle but conduct that has nothing to do with the use of a motor vehicle.  For example, a road rage might initially involve the coming together of two cars, but then the parties might get out of their cars and exchange blows.  The third party claim only extends to the injuries that arise out of the use of the motor vehicle and not the injuries that arise out of the blows.  Things become even more complicated where the victim suffers psychiatric injury as a result of the incident.  Psychiatric injuries such as Post-Traumatic Stress Disorder, Adjustment Disorders and Anxiety Disorders are common where someone is involved in a road rage.  However, it is often difficult to separate what part of that psychiatric injury arises from the conduct that involved the motor vehicle and any conduct that occurred after the parties get out of their vehicles.

If you are involved in a road rage and suffer injury, consult a lawyer.  As you can see, there are a number of possibilities about what types of claims might be available and what is your best option.  There is overlap between the various types of claims and it is quite possible that you may have more than one claim, although having more than one claim does not necessarily mean that you get more money.  It simply means that   the contribution to the compensation is shared between different insurance companies and/or the State Government.

Of course, it is better not to be injured or traumatised at all, so the next time someone cuts you off, tailgates you, beeps their horn, swears at you or offends you in the most irritating way, keep your blinkers on and focus on the road.

Contact Mal to arrange a free initial interview or for further information.