court action over idiot throwing the door

[Mrkakaka]

court action over idiot throwing the door of his car into the path of my car when I was driving my daughter to school at the scene he accepted he was guilty but when he came to give me his details he changed his tune I put a sign up for a witness but sadly none came forward know it is coming to court
is my daughter a viable witness in court I was also not speeding I still have photos can they prove apoint about the way my car was struck maybe.
Help V much appreciated

[Amy]

Re: court action over idiot throwing the door

Why is it going to court rather than being dealt with between insurance companies?

[pt2537]

Re: court action over idiot throwing the door

Oh lordy, this ought to be a simple matter of negligence.


There is an established duty of care between road users, therefore you need to show that the other party breached their duty of care by failing to reach the standard of the reasonably competent car driver.

In Blyth v. Birmingham Waterworks (1856) 11 Exch 781, Alderson B stated that the Defendant must meet the standard of the reasonable person. However where a person exercises a skill, they are not judged according to the standard of the reasonable person because the reasonable person does not profess to have that skill. Instead they will be judged according to the degree of skill or competence possessed by a person who has that skill. This test was established in Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118.

The questions are really, was it reasonable to open the door in the circumstances which the Defendant found themselves and also were you driving too fast and too close to the vehicles at the time of the accident

It is clearly not achieving the standard of a reasonable competent motorist to open a car door in the path of an oncoming car, so prima facie, it seems that there is a breach of duty of care. Of course the usual provisos apply given the full facts are not known


you would need to satisfy the "But for" test in Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 the Court developed the test which asks ‘But for the defendant’s breach of duty, would the harm to the claimant have occurred?’

Providing the answer is no then you satisfy this part of the test for negligence.


the next test to satisfy is Remoteness

In The Wagon Mound (No. 1) [1961] AC 388the test for remoteness is one of reasonable foreseeability of the damage and was established as “is the damage of such a kind that the reasonable person would have foreseen it"

It is reasonably foreseeable in my opinion that the damage caused would be as a consequence of the Defendants actions. So remoteness is not likely to be an issue.

I would also raise the question as to whether there was a police investigation and prosecution?

if there was then you may be able to rely upon s. 11 Civil Evidence Act 1968 to assist this case. s.11 Civil Evidence Act 1968 provides that the claimant in a Negligence action may be entitled to succeed simply by proving that the defendant has been convicted of an offence in respect of conduct, which is the basis for the Negligence claim, unless the defendant can discharge the burden of proving that he or she was not negligent

There is also the question as to whether you were contributory negligent in driving too close to the car, this would be dealt with under s1 (1) Law Reform (Contributory Negligence) Act 1945

On the face of it, it seems your case has merit, but of course the full facts are not known at this stage, so there may be further information which if known may change the opinion here

[The Debt Star]

Re: court action over idiot throwing the door

this happened to my brother about 10 years ago. bloke opened his door into bro's car. no witnesses. went to court because insurers and bro felt it was watertight, fault of the other guy. plain sailing. wrong. the bloke lied in court, turned on the waterworks etc and said bro had been driving too close or sumfink and the court believed him. bro lost his case and had to be dragged from court screaming his head off at the injustice of it all when he calmed down he said that the difference was in the quality of barristers the insurers used; his was a greenhorn whereas the other side's was up for it and shredded him in the witness box. All bro did was drive down a road, within the speed limit and some twot opened his car door into him.

[righty]

Re: court action over idiot throwing the door

The point is if you were approaching from a distance & irrespective of your speed you were there to be seen. Dependant on the road being straight at that point I doubt the guy can even argue your speed as mitigation

[Mrkakaka]

Re: court action over idiot throwing the door

Why is it going to court rather than being dealt with between insurance companies?

YES I thought it was a bit strange and I can only think that the insurers can't see who is at fault and he hasn't backed down and nor am I.

[Mrkakaka]

Re: court action over idiot throwing the door

The point is if you were approaching from a distance & irrespective of your speed you were there to be seen. Dependant on the road being straight at that point I doubt the guy can even argue your speed as mitigation

thanks for your reply yes my road is very straight he just didn't look or think about what he was doing the bloke is quite an older gentleman so maybe he is getting a bit forgetful.

[The Debt Star]

Re: court action over idiot throwing the door

The point is if you were approaching from a distance & irrespective of your speed you were there to be seen. Dependant on the road being straight at that point I doubt the guy can even argue your speed as mitigation

well...all I know is what happened both in the accident (bloke opened his car door into my brother's passing vehicle) and then later on in court, when the defendant got clean away with it and also got damages for a bike he said he thad o buy to get him to work while his car door was in fior repairs. oh, and he also appraently turned up limping and on crutches to the hearing. I had a really pished off brother for a few days as the defendant smiled and winked at him afterwards...

[shell]

Re: court action over idiot throwing the door

I'm a bit confused about this, surely when in a car it is your duty to take care and be attentive. So there should be no excuse for opening a car door into oncoming traffic. It doesn't matter how fast you are going or how close you are to the parked car, the person getting out is responsible for checking it is safe to do so.

It's like stepping off the pavement in front of a moving car, getting knocked down and then claiming the driver was to close to the pavement and was going to fast.

[The Debt Star]

Re: court action over idiot throwing the door

The court felt differently. I wish I knew more of the facts but I wasn't with him in court that day. We all thought it was cut and dry just like Mrkakaka does though; bloke opens door into a passing vehicle = fault.

Hence my bro was willing to go to court and argue the case. Ve4ry confident was he. As were his insurers who paid for it all. My brother does put it down to the fact that the other side's barrister was very efficient and twisted events in such a way as to persuade the court it was his fault.

[righty]

Re: court action over idiot throwing the door

There's always a litigation risk but from what you say I can only assume your brothers legal argument was defficient in some way

[The Debt Star]

Re: court action over idiot throwing the door

There's always a litigation risk but from what you say I can only assume your brothers legal argument was defficient in some way

Don't forget his insurers were all up for taking it to court and they backed him 100% on the issue of liability. I gather the scene in court just vresembled an act of melodrama by the Defendant and the court bought it hook line and sinker. I'll ask him more about it when I get the chance & report back if there was a legal deficiency in his claim.

[pompeyfaith]

Re: court action over idiot throwing the door

The first thing you do when you park is look in the mirrors as well as judging the road condition at the time the car will be passing and assessing how close the other car will be to yours.

This quite a simple action to do is there cars on the otherside of the road are there turnings how wide is the road can 2 lanes pass each other while there are cars parked on both sides of the road or is it a single lane with give way priorities.

All this is simple and the situation can be weighed up in a matter of seconds.