Tailgaters are dangerous bullies but the legal onus is on safe drivers

The death of a 27-year-old man two weeks ago after he confronted a driver who was allegedly tailgating him was, for many, a there-but-for-the-grace moment. Who did not get a chill down the spine, imagining themselves pulling over, as the police allege occurred, and asking a tailgater what the hell they are doing?

You’re not meant to take these matters into your own hands. The aggressor might be someone who has just lost his job, whose family has just left him, who blew a fortune on a same-day multi, who got bad news about his health, and now you have just walked into his cross-hairs.

Illustration: Simon LetchCredit:

The world is a dangerous place: another fear, normalised, that accelerates the very breakdown of civil society you are trying to do something about. And so, the standard you drive past is the standard you accept.

If social cohesion is fraying, then tailgating must be one of the leading indicators.

I know I’m getting older and slower, but I get tailgated at least once a week. There are those who tailgate you for driving under the speed limit. Accelerate, and they still tailgate you.

There are those who tailgate you for being in the right-hand lane, even when you are at the speed limit and you can’t move over. They don’t flash their lights to get the message across. This is Tailgating Plus. Tailgating is their hobby.

There are those who tailgate at night, with high beams on. There are those who tailgate you while they’re on their phones (Tailgating Pro). Maybe they’re talking to their friend about the dickhead in front of them.

There are those who tailgate for no reason, because there’s a red light ahead and so they can’t get where they want any quicker. You manage to let them pass, and they go tailgate someone else. That’s Tailgating Max.

Tailgating is illegal across Australia, though it is done with impunity. In NSW, Rule 126 of the 2014 version of our road rules states that a car must remain two seconds behind the car in front of it in good conditions, three seconds in rain or fog, and four seconds if it’s behind a heavy vehicle.

I was taught something slightly safer: for every 10km/h you are travelling, allow one car length. That means an ultra-safe six car lengths in a 60km/h zone (which means I’ll probably be tailgated by the car behind me).

Given the danger it causes and its utter obnoxiousness, penalties for tailgating are surprisingly low: up to $544 and three penalty points.

Up close and personal, but tailgaters are rarely prosecuted.Credit: Joe Armao

This puts it in the same category as, for example, having an illegible number plate, driving on a nature strip or driving with a person or an animal in your lap. You get fined more for picking up your kid in a disabled zone. You lose more points for doing a burnout.

It’s not known how often tailgaters get penalised. The Bureau of Crime Statistics and Research groups such offences under the umbrella of “dangerous or negligent” driving, for which numbers have been stable for a decade.

Personally, I’ve never known anyone who knows anyone who knows anyone who has been fined for tailgating. Police are busier with lower-hanging fruit, such as setting up witches’ hats where they can fine drivers for having expired licences or having smoked dope a few days earlier. Catching tailgaters is in a too-hard basket, even harder to prosecute in court.

One of the crappiest things about tailgating is that the tailgater is shifting responsibility for road safety onto you, the innocent party, and the main person you need to protect from harm is them, the tailgater. So if you decide to retaliate by suddenly braking, and they crash into your rear end, you might be teaching them a lesson but you will receive a bigger one yourself.

Depending on the speed involved, if you brake-check a tailgater to warn them to back off, you can be booked for reckless driving and receive a fine in the thousands of dollars, a licence suspension and even a criminal conviction.

So no matter how much the tailgater is asking for it, the one thing more stupid than tailgating is retaliating against the tailgater. Even giving your brakes a tap can be an offence. It might be tempting, but it is not recommended and to say it’s self-defence is not really on.

The thing about tailgaters is, they think they’re as anonymous as online trolls. But they are stupid enough not to realise they are visible, via your rearview mirror, through their windscreen. As a bit of a tailgater magnet, I can do an informal survey of tailgater types.

The cliche of a middle-aged white man, big petrol/diesel SUV or utility is represented of course, but so is the P-plater in the fifth-hand bomb, and so are all genders, races, ages and hairstyles. The only unrepresented group among my personal tailgaters are the very elderly, but there’s still time.

Being a tailgater-hater is wretched. If you’re not the type who responds with a bumper sticker along the lines of “If you can read this you’re too close”, you feel that all the forces of modernity, be they bullies or police, are arrayed against you. It’s a Darth Vader world you’re in. Once they climb into their suit of armour they think they can do anything. From their car, they get their jollies from using the force on you.

If I understand the French philosopher Michael Foucault correctly (which is not guaranteed), the relationship between the tailgater and you is one of violence rather than power. A power relationship can work both ways, whereas violence “closes the door on all possibilities [except] passivity”. To prevent escalation, it is up to the victim to be “their own overseer … exercising surveillance over, and against, themselves”. I’m unsure if Foucault had tailgating in mind, but he could have.

The tailgater is a bully, breaking not only the laws of the state but the laws of basic civility and commonsense. They might think they’re smart because they never get booked, but the tailgater is a coward and an idiot. You are subjected to the threat of violence and yet the legal onus is on you, the bully’s target, to look after their safety.

So they’re betting their very lives on you swallowing your grievance and being the bigger driver. The bases are loaded in the bully’s favour, and the only reason society still holds together is that you are passive, you let them go, and you kick the can down the road so they can cause their mayhem somewhere else.

Malcolm Knox is a journalist, author and columnist for The Sydney Morning Herald.

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