Alice and Bob are friends. One day they decide to go on a road trip in Bob's car.

It has started freezing and the road may be icy. Bob drives below the speed limit and applies some extra care that he thinks is adequate, but his experience in driving on icy roads is by no means broad/extensive. In particular, he does not know that bridges freeze first, and signs saying that are missing — they are just not common there.

The car enters a bridge, loses control and rolls over. Because the two wear seat belts, the car is rigid and they are very lucky they manage to escape the car — shaken but with only minor or no injures. However, Alice's jacket is damaged. Also she is concerned that she might have been injured, so she visits a doctor for checkup. The doctor finds nothing requiring medical care.

The police investigates the incident and issues Written Traffic Warning to Bob, alleging him of Careless Driving. No charges are laid.

Alice attempts to claim the costs of the doctor checkup and the jacket. Will she succeed?

Jurisdiction: New Zealand, but also interested in any others.

  • 1
    How is she claiming them? Told Bob she wants the money? From her insurance? In a tribunal or court?
    – user4657
    Jan 26, 2019 at 2:26
  • @Nij She told Bob she wants the money. He rejected. She is considering going to court.
    – Greendrake
    Jan 26, 2019 at 2:37
  • She should be making the claim with his insurer, not Bob.
    – Ron Beyer
    Jan 26, 2019 at 3:44
  • 2
    Then Bob is acting as a self insurer, and she should sue him.
    – Ron Beyer
    Jan 26, 2019 at 4:09
  • 1
    Let's say Bob drove into my car, which was parked safely and legally. And he damaged the jacket. Is there a difference between my situation and Alice's? Did she accept the risk that Bob might make a mistake, while I didn't?
    – gnasher729
    Jan 26, 2019 at 21:14

2 Answers 2


Barring any specific statute the relevant law is the tort of negligence. To succeed Alice must prove Bob:

  1. had a duty to Alice,
  2. breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person),
  3. the negligent conduct was, in law, the cause of the harm to Alice, and
  4. Alice was, in fact, harmed or damaged.

She will probably succeed on 1, 3 and 4 where she will struggle is with 2.

It seems that Bob did everything a reasonable person could do to avoid the accident. The only possible hope is that not knowing that bridges freeze first might be something a qualified NZ driver should know and that he breached his duty by not knowing if that is something the judge considers reasonable.

The traffic warning is irrelevant and untested (and untestable) hearsay and should be excluded from evidence.

  • If Bob drove into my correctly parked car instead, I would expect him to be liable and his insurance to pay my damages. And yet I think your answer is right as far as Alice is concerned. Can't figure out where the difference comes from. (I wouldn't be angry with Bob; I could have made the same mistake and then my insurance would pay Bob, but I would expect to be paid).
    – gnasher729
    Jan 26, 2019 at 21:17
  • Driving into a car parked legally is an entirely different situation from driving on the open road and hitting poor conditions.
    – user4657
    Jan 27, 2019 at 5:54
  • 1
    I'm obviously talking about driving on the open road, hitting poor conditions, and as a result driving into a legally parked car.
    – gnasher729
    Jan 27, 2019 at 13:53
  • Notwithstanding with duty of care/negligence, does the fact that Alice risked to be Bob's passenger make her any less entitled to costs? If not, would @gnasher729 not get anything (if his car was legally parked there and got damaged) from Bob for the same very reason as Alice?
    – Greendrake
    Jan 28, 2019 at 13:09
  • Well for the parked car scenario, generally you report the damage to your insurance company who will then argue with the other insurance company over who is responsible for what. They usually don't tell you the final resolution, you just get a check.
    – pboss3010
    Jan 28, 2019 at 13:15

My answer is premised on principles of equity because (1) I am not knowledgeable of vehicle legislation, and (2) the rationale herein is portable across jurisdictions where legislative provisions or case law might be inconclusive.

Alice attempts to claim the costs of the doctor checkup and the jacket. Will she succeed?

Unlikely. Bob should not be ordered to reimburse Alice.

At the outset, it is wrong for the police to impute to Bob careless driving. It is wrong because actually Bob took extra precautions in response to the challenging road conditions.

If the police alleged "careless driving" in Alice's presence, the police unduly prejudiced Bob. In that case, there is a chance that Alice would not have proceeded against Bob but for her awareness of the police's unfair depiction of Bob.

Bob's extra precautions disprove negligence. Given the absence of signs saying "bridge freezes first" and how unusual icy roads are in that region, an average driver from that region cannot be expected to know that bridges freeze first.

Since they suffered only minor or no injuries, Alice's motive for consulting a physician is questionable. Was that a result of the undue prejudice to Bob? did Alice have a preexisting medical condition? is she hypochondriac or suggestible? In such cases, Bob's driving can hardly be deemed a proximate cause of --or even contributory to-- Alice's needless medical expenses.

Alice's jacket is evidently expensive, or else she would have no incentive to require Bob to compensate her for the damaged jacket. Thus, a relevant question is how reasonable was it for Alice to wear a purportedly expensive (and perhaps ostentatious) jacket for what she knew was just a road trip in cold weather.

Neither Bob forced Alice to join the road trip, nor did he drive negligently. Therefore, he is not liable for what seemingly are Alice's self-inflicted losses.

  • Negligence is not an equitable doctrine, it’s a common law one.
    – Dale M
    Jan 26, 2019 at 21:11
  • @DaleM It is funny how you are nitpicking to justify downvoting the entire answer. Is "unfair prejudice to Bob" also common law? is reimbursement of Alice's self-inflicted losses also common law? Jan 26, 2019 at 21:16
  • 1
    Whilst DaleM's answer is canonical, this one provides interesting angles to look at the case. Thank you.
    – Greendrake
    Jan 26, 2019 at 21:26
  • You make a number of statements that are neither supported by the question nor reasonable in the circumstances, and several require an implication about what is or not lawful that are at best, ambiguous. Aming others: a jacket of exactly the kind one would wear on cold weather can cost several hundred dollars; the question says signs about bridge freezing are uncommon, not the icy weather itself; there is nothing to indicate Bob drove to the conditions, let alone took extra precautions above the necessary: the police have given a written warning and to call this undue prejudice is wrong.
    – user4657
    Jan 27, 2019 at 5:58
  • @Nij The OP's feedback debunks your rant on this being "neither supported nor reasonable in the circumstances". Apply common sense, if you can: A lack of signs suggests that bridge freezing is unusual. I have spent several long winters where snow & icy roads are very common, and I have never needed a jacket that "can cost several hundred dollars"; only someone's personal taste can cost that much. I'm sorry you cannot discern between conditional and unequivocal statements of fact, but what I wrote ("If the police alleged 'careless driving' in Alice's presence") is a conditional one. Jan 27, 2019 at 12:00

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