You can't be sued for texting drivers

It seems you won't go to jail or be sued if a text you send to a driver leads to a crash.

The issue surfaced recently in the US where a New Jersey court heard the case of David and Linda Kubert who were seriously injured when truck driver Kyle Best hit their motorcycle.

The Kuberts' legal counsel, Stephen Weinstein, insisted that some blame for the accident be placed on the shoulders of Shannon Colonna, who sent the text message, arguing that Colonna was "electronically present'' at the time of the collision.

However, Judge David Rand has shown some sanity in his ruling, saying the driver alone carries the burden of responsibility, not the text-message sender.

"We expect more of our drivers. We expect more of the people who are given the right and the privilege to operate vehicles on our highways," he says. There is no word yet from the legal counsel about an appeal.

Meanwhile, University of Queensland tort specialist Kit Barker says it couldn't happen in Australia. He says the basic principle in Australian negligence law is "no liability without legal fault''.

"Fault requires at the very least that the physical injury suffered by another be reasonably foreseeable by the defendant,'' he says. "This is judged without the benefit of hindsight, at the time of the allegedly negligent act.

"Given that a person sending a text has no way of knowing where the recipient is, or what he or she is doing when a text is received, it would be very difficult to see how the accident would be a foreseeable consequence.

"Even if the sender knew the receiver was driving, a reasonable sender would assume that the addressee would not attempt to open the message whilst driving, given that this is tantamount to careless driving.'' Barker admits that US law sometimes produces results that "would seem very odd in other jurisdictions''.

"But I would be very surprised if civil liability were to attach to the sender of the text even there,'' he says. "In my view, the chances of there being any civil liability for the sender on the facts ... are virtually zero,'' he says. "I cannot speak to criminal liability, but the normal assumption is that the threshold of criminal responsibility is higher, not lower, than that in civil cases.''

Whether it is legal or not, if you know someone is driving at the time, it's probably best not to send them a text message. Distracted driving such as using a handheld mobile for conversations or texting is estimated to account for nearly one in 10 road fatalities.