The Right of Way Myth

This is the first of a series of blogs on what I perceive to be the most misunderstood road rules. These blogs are written from a South Australian perspective, but every state and territory’s road rules are all based around the 1999 Australian Road Rules.

One of the most common errors that appear to crop up on any form of motoring forum is the “but I had right of way” comment. Right of way does exist in law, but as a noun not as an adjective.

A right of way is a specific type of easement, as explained here.

The term right of way, in the context of the give way rules, or more precisely the lack of right of way, is explained quite clearly in the preamble to the Australian Road Rules;

Obligation to give way

There are a number of rules requiring a driver to give way to another driver or a pedestrian. However, under the Rules the other driver or pedestrian does not have a “right” of way. Indeed, in some situations, a number of drivers may be required to give way to each other, eg at an intersection with a stop sign or give way sign on more than 1 of the intersecting roads. Similarly, although a driver may be required to give way to a pedestrian, the pedestrian is required under rule 236(1) not to cause a traffic hazard by moving into the driver’s path.

Although this section of the rules is not actually law, it is the only place in all 331 pages that this term is used. Some states do use the term in their road handbooks however they also use a disclaimer that the handbooks are not a legislative document, for example the following is from the ACT Handbook 2015:

  • While this handbook is predominantly a training tool for learner drivers, it is also intended to assist ACT or visiting drivers, however it is intended as a guideline only. Legislative provisions are contained in the Australian Road Rules 2012 and related Acts and Regulations.

 

The overriding requirement on any road user is the requirement to avoid a collision. This should be common sense for a number of very obvious reasons, but it appears that the “Right of Way” mentality often gets in the way of common sense.

Let me illustrate what I am saying with an example; you are driving in a roundabout (Blog to come on the misunderstood roundabout rules) and you see a driver approaching who is quite obviously not going to stop and give way to you, even though they are required to by law because you are already circulating in the roundabout. Common sense would tell you to back off and be prepared to stop to avoid the inevitable collision, however you have your “right of way” mentality engaged so you just keep going. You collide with the other driver, who happens to have only the legally required third party insurance, or worse still no insurance. You are injured in the collision and your car is severely damaged or written off.

Legally the other driver is 100% to blame because they were required to give way, but;

  • Does that help you while you are lying in a hospital bed?
  • Worse still, suppose you were a motorcyclist, does it help you while you are in a mortuary refrigerator?
  • Does that help you while you are without your car for many weeks while insurance companies argue the case?
  • Does it help you with your no claim discount if the other person only has the legally required insurance?

This is just one small example of how your life could be made much easier and more comfortable simply by getting out of the mindset that “I am in the right and have right of way”, and being the better driver.

Feel free to please  share your thoughts below.

 

As Sergeant Phil Esterhaus used to say in Hill Street Blues, “Let’s Be Careful Out There”

 

©Southern School of Motoring 2016

 

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