A University of Queensland electronic law expert has warned that a United States Appeals Court ruling to hold remote ‘texters’ liable for accidents caused by drivers reading their messages could have ramifications in Australia.
The UQ TC Beirne School of Law’s Dr Alan Davidson said the ruling on 27 August was the latest in a class of cases for remote liability.
“This arises where the sender knows the texts are being viewed by the recipient while driving,” Dr Davidson said.
“McDonalds has been held liable for a car crash for coffee that was too hot and was spilled by the driver, and a bar person can be held liable for serving alcohol to an intoxicated person if they know they will be driving.
“If this approach is adopted in Australia then we will have to consider whether a recipient is driving when we text them.”
The case in New Jersey concerned an accident caused by an 18-year-old driver who was texting shortly before his vehicle crashed into a couple on a motorbike.
The motorcyclists were both seriously injured.
A lawyer for the couple claimed that the 17-year-old who communicated with the driver by text had ‘aided and abetted’ the driver’s texting, and had a duty not to text someone who was driving.
A phone log referred to by the court showed the truck driver and his friend had texted each other 62 times on the day of the accident, with an equal number of texts originating from each.
Asked about her prolific texting, the 17-year-old said: "I'm a young teenager. That's what we do."
She testified that she generally did not pay attention to whether the recipient of her texts was driving or not.
The court cleared the 17-year-old, but the judges ruled that mobile phone users who communicated with someone who was driving could be considered ‘electronically present’ in the vehicle, giving them the legal responsibility, similar to that of a physically present passenger, not to distract the driver.
The details of the case are available at www.judiciary.state.nj.us/opinions/a1128-12.pdf
Media: Dr Alan Davidson, (07) 33652294 or 0401 711446, a.davidson@law.uq.edu.au. Melissa Reynolds, UQ School of Law (07) 3365 2523, m.reynolds@law.uq.edu.au.
Dr Alan Davidson is a solicitor and barrister of the Supreme Court of New South Wales and of the High Court of Australia, and a Senior Lecturer at the TC Beirne School of Law at The University of Queensland. He is a leading expert on electronic commerce law, a field which encompasses every activity that takes place online, from intellectual property issues to the fight against cybercrime. AlanDr Davidson is a Fellow of the Institute of International Banking Law and Practice and a member of its Asia Advisory Council, and a member of the Council of International Standby Practices and the Banking Committee of the International Chamber of Commerce Australia.
