Who's at fault????

AnxiousMum

Thank you dacouch, quentin and cogito - child locks have been put back in order - thank you all for your useful comments.

lisyloo

and insinuating someone being an irresponsible parent

Sorry if this came across wrong.
What I meant by responsible is liable under UK law.
My belief is that under UK law a driver is responsible (i.e. liable) for their passengers actions (I can't give a link but I've seen it elsewhere on the net).
Personally I don't agree with this particular law but my guess is that it might be in place to provide practical financial liable to others as cars must be insured under law (and there is MIB if there is for the uninsured).
I remember it from before because I took exception to it. I don't see why a driver should be responsible for the actions of other adults, but that's the way it is.

gettingbetter

AnxiousMum wrote: »

The panel on his car is scratched with a slight dent to the front drivers quarterpanel - but he's saying of course it will need to be fully replaced.

hi

fully replaced

surely any panel beater worth his salt should be able to fix this without replacing the panel and just blow in respray.
i might be wrong but will ask brother in morning

kas xx

lisyloo

surely any panel beater worth his salt should be able to fix this without replacing the panel and just blow in respray

I've had the siutation before that a panel could not be pushed out (not economically anyway).
It was a door in this case and the dent was in front of parts which meant the whole door would need complete stripping down to get to the dent.
It was technically possible but replacement was cheaper.
I know this isn't a door, but it's a genuine example of where replacement rather than repair was the solution.

So it is possible.
Whether it's true in this case we don't know.
It's not uncommon for car repairs to be more expensive than people initially think.

SolicitorMidlands

Very unfortunate. If the damage isn't significant and the other party's excess is large, they might not bother claiming?

Quentin

You would (probably direct off the third party/their insurer), wouldn't you?

asbokid

cogito wrote: »

Can an 8 year old carry out a negligent act?

"Though there is no age below which it could be said that a child could not be guilty of contributory negligence, age is a most material fact to be considered. The question whether the claimant could be said to be guilty of contributory neglience depended on whether any ordinary child of 13 could be expected to do any more than she did."

Per Lord Denning MR: A very young child cannot be guilty of contributory negligence. An older child may be, but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not be found guilty unless he or she is blameworthy." , Gough v Thorne, All ER 398 [1966].

See the tragic case of Andrews v Freeborough, also from 1966... an eight year old child stepped off a pavement into the road and was fatally injured.. On appeal, Willmer LJ found that... "it is not necessary to express any decided view on this point for the little girl was only eight years of age. Even if she did step off into the car, it would not be right to count as negligence on her part such a momentary though fatal act of inattention or carelessness.."

Another case from 1966 Prudence v Lewis, reported in The Times.. "A child of just under-three years old was incapable of being guilty of contributory negligence."

Then there is the case of Morales v Eccleston from 1991... where blame was apportioned 25% to a motorist and 75% to an 11 year old who followed his football into the carriageway and was struck by the defendant's car and suffered serious injuries..

In your circumstances, Moore v Poyner [1975] could be relevant.... a child of six ran out from the front of a stationary bus, and was struck by the defendant's car... Was the motorist travelling too fast? Should he have anticipated the child doing that? Should he have slowed down to make quite certain that no accident would occur? "Ought he to have slowed down to such an extent that there could have been no possibility of a child's running out at any moment in front of him and his being unable to stop without striking the child? In the present case for the defendant to do so he would have had to slow down to something like 5mph. Such a duty of care would be unreasonable..."

The above cases were all taken from a very tragic chapter of Bingham & Berrymans.. "Liability of Children."

Forget Hans Christian Anderson and the Brothers Grimm, it is the true life tragedies from B&B that make for useful bedtime stories. It almost brings a tear to your eye reading about all those kids whose lives were so short.

I'm sure I read about a case of negligence where a passenger in a stationary vehicle opened the door into the carriageway and it was struck by a passing vehicle. If I find it, I will post it..

That actually happened to us once.. On the A46 in Coventry. A passing coach took the door clean off!

I suspect on the question of your daughter and whether she could be held contributorily negligent, a Court would probably use something like the Gillick Competence Test.. a test cruelly named after Victoria Gillick, the staunch Roman Catholic and campaigner for parental rights..

From what you've said here, if it were me, I would feel some moral duty to pay for the damage to the other vehicle..

asbokid

Cyclists have even coined a verb for this type of road accident... "dooring"...

This from a report by Andrew Wilson of Levenes Solicitors, Cambridge.....

Significant legal victory for cyclist

As any cyclist who rides on the public road will know, there are hazards from other road users, and not just from moving vehicles. Stationary vehicles also present a risk of injury, particularly where negligent motorists open their doors without looking. In a recent case, the Court of Appeal had to decide whether a cyclist was in any way to blame for failing to avoid a collision when a door was opened as he was overtaking the vehicle.......

See: http://www.camcycle.org.uk/newsletters/56/article4.html

See also Part 239 of the Highway Code...

you MUST ensure you do not hit anyone when you open your door. Check for cyclists or other traffic

That Rule is apparently a statutory duty, defined somewhere in: [Laws CUR reg 98, 105 & 107, RVLR reg 27 & RTA 1988 sect 42]..

Crazy_Jamie

Quentin wrote: »

You would (probably direct off the third party/their insurer), wouldn't you?

I'd say so. I think the key here is that you'd probably claim direct from the driver/parent and not the child in any event. I say that because I would imagine that the insurance covers her and not her child, though by all means if I'm wrong about that one of the insurance experts can correct me. Which makes the actual issue of whether the child is negligence somewhat moot. Though it may be harsh, I think realistically the fact that child locks were not used when they could have been would probably be enough for the insurance company to find liability. Not that I'm passing a judgment on you here, AnxiousMum. This is a very unfortunate situation all round, but objectively I have to agree with the general consensus that you'll be found at fault here.

asbokid wrote:

*Big section about contributory negligence*

We're not talking about contributory negligence here. We're talking about actual negligence. Children can be negligent, it just depends on the circumstances, and they will of course be held to different standards of care than adults will.

asbokid wrote:

I suspect on the question of your daughter and whether she could be held contributorily negligent, a Court would probably use something like the Gillick Competence Test.. a test cruelly named after Victoria Gillick, the staunch Roman Catholic and campaigner for parental rights..

Again, it's not contributory negligence. Also, Gillick competence is used to establish whether or not a child can give consent for medical procedures. An equivalent test based on the same principles is also used to establish whether or not a child is competent to give evidence in court proceedings, though that's a side point. The point is that it has no application here. The straightforward law relating to negligence would apply.

This is another side point, but I wouldn't say that the test was 'cruelly' named after Victoria Gillick. She brought the original action in Gillick v West Norfolk and Wisbech Area Health Authority, hence the test is named more after the case than her. Much like the Bolam test, to give a further example. That point is not relevant to this thread though- just me going off on a tangent.

AnxiousMum

[QUOTE=asbokid;21031959From_what_you've_said_here,_if_it_were_me,_I_would_feel_some_moral_duty_to_pay_for_the_damage_to_the_other_vehicle..[/QUOTE]

Exactly Asbokid - and I do feel the moral duty to pay for it.