A couple of years back I hit a car on my Motorbike on the way to work - the cars were stopped at a red light and I was filtering slowly down the right when the guy decided to do a U-turn. I hit him and broke my ankle. I claimed from the RAF and eventually it went to court where I was awarded only a percentage of what my lawyer claimed - the Judge was quite firm and said to me that some of the blame was on me because even though what the car had done was wrong, and filtering is legal in SA, I had put myself at risk by doing it.
It was quite an eye-opener for me because in my mind I was doing nothing wrong - but in the eyes of the law I was putting myself at risk by riding a motorbike in that position.
So yup - I agree. My gut feeling would be that if this went to court and assuming no-one was drunk, the blame would be apportioned to both parties for putting themselves at risk for doing what they were doing. Sometimes the law is like a Doberman's left leg - it's neither fair, or right.