Hit by parked car opening door

osu817

Hi

My friend was knocked off his bike by someone opening a door into him as he was cycling along. Caused about £700 of damage to his bike, and had to go for x-rays on himself. he's reported it to the police, got a witness to the event, and got all his stuff from the hospital.

However, the car owner is now asking for my friends insurance details as the car door is damaged...

What is the protocol on this? other than being stunned by the cheek of it?!

This must have happened to others on here, so has anyone got any advice as to how to get everything sorted as quickly as possible?

Cheers

Neil

graeme_s-2

Rule 239 of the highway code:

Highway Code wrote:

If you have to stop on the roadside:
you MUST ensure you do not hit anyone when you open your door – check for cyclists or other traffic

http://www.direct.gov.uk/en/TravelAndTr ... de_parking

Pross

I would take the fact that they are claiming for the damage as a good point. It means they are effectively admitting they did open the door in your friends path so will have a hard time arguing when he puts in a claim against them!

As you will see from Graeme's post the Highway Code has it as a MUST so it is covered by law. In this case it relates to the Road Vehicles (Construction and Use) Regulations 1986 regulation 105

105. No person shall open, or cause or permit to be opened, any door of a vehicle on a road so as to injure or endanger any person.

Wirral_paul

Further to the above, have they requested for his insurance details in writing?? If so then i'd ask for it to be put in writing...............and then as above - use it against them!!

joshr96

Can't help you here but, wow, what a cheek. An innocent cyclist gets knocked off his bike due to the carelessness of another...and yet they still claim because there is damage to the door? Some people...

DrKJM

Bet they don't nick them for it though. Quick fixed penalty notice (or whatever they are called) would focus the driver's mind.

jc4lab

Been the New York a few times now.. the biggest danger is ... a Yellow cab pulls up in front.of you ...The curbside passanger door thens opens and...!!!!.

Nevis the Cat

I recall at police training college that it is an offence t open your car door into oncoming traffic.

Get your mate to check if this still applies (I suspect it does, but the RTA has been changed since I left) and then remind the plod that you would like them to "follow this up" with the driver.

briantrumpet

Hmm, seem to remember a case of a driver being found guilty of some serious crime, having opened his/her door, knocking a cyclist into a bus coming in the opposite direction.

The driver in your friend's case hasn't got any realistic defence at all. The law is clear.

EDIT - the case is of Sam Harding, and the driver has been charged with manslaughter. http://boardreader.com/thread/Manslaugh ... X50do.html

cyco2

osu817 wrote:

This must have happened to others on here, so has anyone got any advice as to how to get everything sorted as quickly as possible?

You will 'win' the case but there is no quick solution. It could take a long time to resolve. It's the nature of the beast.

diy

Talk to a personal injury lawyer on one of the no win no fee sites or better still use any household legal cover to get the claim sorted. Get a copy of their statement in writing so that you can submit to your insurers

The driver is under the illusion that a cyclist owes a duty of care to the drivers property. There is no such duty. The reverse however is true. Go for the personal injury too.

Your personal injury lawyer will submit a claim for your damages and their fees will be on top of your claim payable by the other party. Unless there is evidence to the contrary, the drivers insurers will pay out for the damage, there may be factors such as betterment and contributory negligence based on undisclosed information. But in summary you are highly unlikely to have to pay for the damage to the door and very much more likely to get compensation for your damages and injuries. Your lawyer will also be able to get statements from the police, you may have to pay a little up front for costs of requesting documents.

There must be a lot more to the Harding case than we are being told in the press. I can't see a jury convicting an adult of manslaughter due to a child in his car opening a door on a cyclist.

spen666

diy wrote:

Talk to a personal injury lawyer on one of the no win no fee sites or better still use any household legal cover to get the claim sorted. Get a copy of their statement in writing so that you can submit to your insurers

The driver is under the illusion that a cyclist owes a duty of care to the drivers property. There is no such duty.

NONSENSE! Cyclists do owe a duty of care to other road users

I am not saying ~OP was in breach of this duty ( not saying the opposite either)

The reverse however is true. Go for the personal injury too.

Your personal injury lawyer will submit a claim for your damages and their fees will be on top of your claim payable by the other party. Unless there is evidence to the contrary, the drivers insurers will pay out for the damage, there may be factors such as betterment and contributory negligence based on undisclosed information. But in summary you are highly unlikely to have to pay for the damage to the door and very much more likely to get compensation for your damages and injuries. Your lawyer will also be able to get statements from the police, you may have to pay a little up front for costs of requesting documents.

There must be a lot more to the Harding case than we are being told in the press. I can't see a jury convicting an adult of manslaughter due to a child in his car opening a door on a cyclist.

diy

I may have been brief in my summary, but there is a big difference between car on car duty of care and car on cycle duty. The duty has to be established. With drivers of motor vehicles its statutory.

Most drivers are under the illusion that the same rules which apply to them also apply to cyclists.

spen666

diy wrote:

I may have been brief in my summary, but there is a big difference between car on car duty of care and car on cycle duty. The duty has to be established. With drivers of motor vehicles its statutory.

Most drivers are under the illusion that the same rules which apply to them also apply to cyclists.

I'm sorry, you are still talking nonsense

All road users owe a duty of care to all road users PERIOD

The duty of care is the same


I suspect you are mixing up criminal law and civil law.

There is a specific criminal offence relating to open a door onto someone. That however is irrelevant when talking about duties of care which is a civil law matter.


If as you allege there is a statutory duty of care for motorists, then please advise us what the statute is. It will be simple for you to point out the statute if one existed, unless you are talking nonsens and spouting about things you do not understand.

If there is a statutory duty as you allege, it will have been imposed by a statute, so please tell us which statute that is

diy

I'm not going to trawl databases quoting decided cases at you and I'm not going to quote acts that you can easily find in the back of the highway code. You're a solicitor, you should have access to the same books and resources I have. The three part duty of care test for anyone to anyone is as per Caparo Industries plc v Dickman, which I am sure you know about. The first part test is key:

Motorists, who have driving licenses and even those who don't (Nettleship v Weston [1971]) are expected to meet a higher standard and take particular care towards vulnerable road users. That is a higher standard than a cyclist or pedestrian must meet.

The Highway Code identifies cyclists amongst the most vulnerable of road users making specific provision for motorists to take particular care when using the public highway, in consideration of cyclists.

When establishing liability for an accident there are many, many decided cases and of course the statute behind the highway code that dictate liability. Those rules place a higher standard of conduct on a driver than a pedestrian or cyclists.

You seem to be suggesting that cyclists and pedestrians must conform to the same standard as drivers and that is misleading.

spen666

diy wrote:

I'm not going to trawl databases quoting decided cases at you and I'm not going to quote acts that you can easily find in the back of the highway code. .....

clearly, you do not understand what you are posting.

If it is a statutory matter, then it is created by a statute (aka Act of Parliament, so why you are referring to looking up case law is irrelevant.

As I have said on several ovccasions, there is a criminal provision regarding opening a car dar so as to cause danger.

Duty of Care is a civil matter and the same duty of care applies to all road users

spen666

diy wrote:

..... the statute behind the highway code that dictate liability. Those rules place a higher standard of conduct on a driver than a pedestrian or cyclists.

Erm, sorry to point this out, but the Highway code is not statute based at all. It is a Code and has no statutory origin at all

You seem to be suggesting that cyclists and pedestrians must conform to the same standard as drivers and that is misleading.

I have said no such thing at all, I have said the same duty of care applies to all road users.

i'm sorry that you seem to have difficulty in understanding

slowsider

For balance , Rule 67 of the Highway Code:

You should

look all around before moving away from the kerb, turning or manoeuvring, to make sure it is safe to do so. Give a clear signal to show other road users what you intend to do (see 'Signals to other road users')
look well ahead for obstructions in the road, such as drains, pot-holes and parked vehicles so that you do not have to swerve suddenly to avoid them. Leave plenty of room when passing parked vehicles and watch out for doors being opened or pedestrians stepping into your path

Graeme_S wrote:

Rule 239 of the highway code:

Highway Code wrote:

If you have to stop on the roadside:
you MUST ensure you do not hit anyone when you open your door – check for cyclists or other traffic

http://www.direct.gov.uk/en/TravelAndTr ... de_parking

diy

spen666 wrote:

Erm, sorry to point this out, but the Highway code is not statute based at all. It is a Code and has no statutory origin at all

from
http://www.direct.gov.uk/en/TravelAndTr ... /DG_070236
my bold..
Many of the rules in the Code are legal requirements, and if you disobey these rules you are committing a criminal offence.... Such rules are identified by the use of the words ‘MUST/MUST NOT’. In addition, the rule includes an abbreviated reference to the legislation which creates the offence. An explanation of the abbreviations can be found in 'The road user and the law'.

Failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted. The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see 'The road user and the law') to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.

Heres the list:
http://www.direct.gov.uk/en/TravelAndTr ... /DG_069869

The highway code is regularly referenced in civil liability claims for both damages and personal injury. There are 100s if not 1000s to quote from.

If it is a statutory matter, then it is created by a statute (aka Act of Parliament, so why you are referring to looking up case law is irrelevant.

So a decided case has no bearing on the interpretation of acts of parliament? You sure about that?

This is a pointless conversation btw - I'm happy to pick it up on a legal forum where others are actually interested in the finer qualities of what you are saying. My advice to the OP was to talk to a PI specialist who will advise very quickly on the merits of his claim for no or very little cost. He/she or anyone else does not need to know any of what we seem to now be discussing.

KINGGARY

I work in the motor insurance industry and this is pretty clear cut unless there are mitigating circumstances, ask for his insurance details and contact the company either directly or through the use of an injury solicitor.
If he fails to supply details contact the police and report him, he has a legal obligation to supply these details when requested.

spen666

You claim it is a statutory matter, then you argue that you can't be bothered to look up case law?


If it is a statutory issue, tell us all the statute!


As for your quotes re the Highway code, they are all correct, but they are also irrekevant to the fact that the Highway Code is not a creation of statute and has no statutory basis, it is a CODE - there is a clue in the name

You clearly mean well, but you are confusing yourself about the law and what is civil law and what is criminal law.

You are also confusing yourself about what statutory means -

If the Highway Code is based on a statute, please tell me what that statute is?

If as you claim the motorists additional duty of care that you claim is statutory, please advise on which statute

diy

spen666 wrote:

As for your quotes re the Highway code, they are all correct, but they are also irrekevant to the fact that the Highway Code is not a creation of statute and has no statutory basis, it is a CODE - there is a clue in the name

You clearly mean well, but you are confusing yourself about the law and what is civil law and what is criminal law.

Nobody has said that the HWC is the creation of statute. I really am lost on the point you are trying to make.

spen666

diy wrote:

spen666 wrote:

As for your quotes re the Highway code, they are all correct, but they are also irrekevant to the fact that the Highway Code is not a creation of statute and has no statutory basis, it is a CODE - there is a clue in the name

You clearly mean well, but you are confusing yourself about the law and what is civil law and what is criminal law.

Nobody has said that the HWC is the creation of statute. I really am lost on the point you are trying to make.

Strange then that at 0700 today you posted thid?

When establishing liability for an accident there are many, many decided cases and of course the statute behind the highway code that dictate liability

My point is simple - you are talking complete nonsense claiming things are statutory when they are not

You still refust to explain what the basis is for your claim that the motorist has a statutory duty of care above that of other road users.

Team4Luke

spen666 wrote:

Duty of Care is a civil matter and the same duty of care applies to all road users

if that is indeed the case, then the OP could only be taken to small claims for damage to the car door and that would be thrown out ?

diy

spen666 wrote:

My point is simple - you are talking complete nonsense claiming things are statutory when they are not

So in your opinion when someone refers to the laws which are behind the highway code, upon which many of the rules are based, is same as saying the highway code exists due to an act of parliament? That seems a rather odd conclusion, which is convenient to pick an argument. There may well be some act somewhere around 1919–1941 which empowered the then Ministry of Transport to create the highway code, making it meet your requirements, but for the avoidance of doubt nobody is claiming the HWC exists due to an act of parliament, though without looking in to it, I'm not saying it didn't either

None of this is relevant to the point that is being made. You have stated correctly that all road users owe the same duty of care to all other road users, but again that is not the point that is being made. The point being made is that the subjective test to determine "The harm which occurred must be a reasonable foreseeable result of the defendant's conduct" is subject to different standards for driver and cyclists. It is a test that has been applied 100s probably 1000s of times in road traffic accidents to determine liability and associated contributory negligence. Much of this is based on the HWC, and decided cases (which were also based on these rules). There is an argument that its chicken and egg, as revisions to the HWC often reflect decided liability cases as the rules and rulings evolve. In addition there are legal requirements that dictate a higher standard required by drivers of motor vehicles, than for cyclists. So for example a driver may be both guilty of driving with due care and attention and also liable for damages and injuries caused as a result. So in addition to the long list of decided cases that place more responsibility for care on the motorist than the cyclist or pedestrian, we also have the long list of road traffic law (as well as others) that govern the conduct of drivers, but do not govern the conduct of cyclists to the same extent. Thus in both civil law and criminal law the rules which apply to motorists and cyclists are different. Its really this last sentence that is the point of debate.

spen666

diy wrote:

spen666 wrote:

My point is simple - you are talking complete nonsense claiming things are statutory when they are not

So in your opinion when someone refers to the laws which are behind the highway code, upon which many of the rules are based, is same as saying the highway code exists due to an act of parliament? That seems a rather odd conclusion, which is convenient to pick an argument. There may well be some act somewhere around 1919–1941 which empowered the then Ministry of Transport to create the highway code, making it meet your requirements, but for the avoidance of doubt nobody is claiming the HWC exists due to an act of parliament, though without looking in to it, I'm not saying it didn't either

None of this is relevant to the point that is being made. You have stated correctly that all road users owe the same duty of care to all other road users, but again that is not the point that is being made. The point being made is that the subjective test to determine "The harm which occurred must be a reasonable foreseeable result of the defendant's conduct" is subject to different standards for driver and cyclists. It is a test that has been applied 100s probably 1000s of times in road traffic accidents to determine liability and associated contributory negligence. Much of this is based on the HWC, and decided cases (which were also based on these rules). There is an argument that its chicken and egg, as revisions to the HWC often reflect decided liability cases as the rules and rulings evolve. In addition there are legal requirements that dictate a higher standard required by drivers of motor vehicles, than for cyclists. So for example a driver may be both guilty of driving with due care and attention and also liable for damages and injuries caused as a result. So in addition to the long list of decided cases that place more responsibility for care on the motorist than the cyclist or pedestrian, we also have the long list of road traffic law (as well as others) that govern the conduct of drivers, but do not govern the conduct of cyclists to the same extent. Thus in both civil law and criminal law the rules which apply to motorists and cyclists are different. Its really this last sentence that is the point of debate.

So why have you repeatedly said this is not the case in the earlier posts?

This thread would have ended ages ago if youhad accepted this. On 24th April you argued cyclists do not owe a duty of care to other road users property. When I challenged this you started on with the nonsense that they didn't

Now you re agruinfg the opposite

diy

You focused on the test, not the subjective elements. In the context it was like saying concrete is made from ballast, cement and water and therefore all concrete is the same. The test is the same, but the standard is different. My original advice to the OP was that as a cyclist he was subject to a different standard than a driver.

What do you think was more important for the OP, to learn about duty of care and negligence law or to understand that his exposure to a claim for damages were based on different criteria to the drivers for his damages?

spen666

diy wrote:

You focused on the test, not the subjective elements. In the context it was like saying concrete is made from ballast, cement and water and therefore all concrete is the same. The test is the same, but the standard is different. My original advice to the OP was that as a cyclist he was subject to a different standard than a driver.

....?

Your answer is wring in fact and law, but if you want to mislead people, carry on

thefd

Man - you 2 should get a hotel room. Spen666 - let it go. No one knows or cares what this legal argument is about. Even diy has virtually lost the will to live with this one!

Warren11

Why is it always the car drivers fault I've been riding a bike for 15 years and never crashed into a parked car maybe if these people are so stupid they should not be riding a bike.

nweststeyn

Good first post.