Who's at fault????

Quentin

AnxiousMum wrote:

I do feel the moral duty to pay for it

Nevertheless, this is what you pay your insurance for.

As previously advised, you do need to inform your insurer about the incident (irrespective of whether or not you feel liable).

Then await any developments from the third party (and pass them on unanswered to your insurer).

Insurance covers you for incidents - not just "accidents", and the truth is, there aren't many "genuine" accidents - usually someone contributes to an incident through a form of negligence, but that doesn't mean they should feel morally obliged to pay and relieve their insurer of that responsibility.

If it turns out the costs involved mean it would be cheaper for you to pay yourself (rather than lose some NCD), then you can always reimburse your insurer and have the claim removed from your record.

lisyloo

I would always suggest people consider going through their insurer for the following reason.

If you go direct, you face the issue of subsequent claims e.g. personal injury claim for whiplash.
The "victim" has 6 years to claim for vehicle damage and 3 to claim for personal injury, so unless you know how to tie it up legally as "full and final settlement" or are going to pay a solicitor, then you face the possibility of a subsequent claim.
Paying a solicitor probably is not economically viable.

My experience is that if you have full NCD and it's protected then your premium does not rise as the result of a single claim but it almost certainly will after multiple claims, so you have used up a "life" as it were.

When I had a small car claim last year it did not increase my car premium (I had full NCD protected. It did raise my bike premium slightly but I did not have full NCD.

asbokid

Crazy_Jamie wrote: »

We're not talking about contributory negligence here. We're talking about actual negligence.

I'm not sure what you mean..

If a party is held to be Contributorily Negligent, then the Court has decided that they should shoulder part or all of the blame for an accident. It is common for there to be an apportionment of blame according to the extent of negligence contributed by each party.

Hence the term "contributory negligence".

Let's consider a child of average intelligence for his age who opens an off-side vehicle door without taking the basic road traffic precaution of ensuring that no vehicle is approaching along the off-side. That child, or more correctly, his guardian, the car driver, might be held to be 75% contributorily negligent.

And similarly the passing motorist might reasonably have expected a stationary car at a petrol station to contain a child who could, at any moment, open a door without warning, since another child in that car had, perhaps, just seconds before done exactly that, and had opened a nearside door of the car.

Consequently, a cautious motorist should have slowed down to <5mph as a reasonable precaution against the event of another child opening another door on the car. Since the motorist did not slow down as a precaution, in his case, contributory negligence might be held to be 25%.

That is what Contributory Negligence is about.

Gillick competence is used to establish whether or not a child can give consent for medical procedures.

I never said that! I said and I quote: "a Court would probably use something like the Gillick Competence Test"

Note that I said "something like"... i.e. not the Gillick competence test itself.

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.

I'm quite well aware of the Gillick case since the Gillicks have been friends of my parents for decades. As a child, I used to play with their children (which kept me busy as there were a lot to play with!)

And let's not mince our words.. the case was never about unnamed "medical procedures". It was about abortions being carried out on underage girls as young as eight. The Gillicks wanted the courts to rule that this should never happen without parental involvement.

It's a moot point, but since the case went against Victoria, I feel it is pretty cruel that the test for whether a girl of eight should undergo an abortion without her parents' knowledge, was named after the very woman who fought determinedly against that.

Crazy_Jamie

asbokid wrote: »

I'm not sure what you mean..

If a party is held to be Contributorily Negligent, then the Court has decided that they should shoulder part or all of the blame for an accident. It is common for there to be an apportionment of blame according to the extent of negligence contributed by each party.

Hence the term "contributory negligence".

Let's consider a child of average intelligence for his age who opens an off-side vehicle door without taking the basic road traffic precaution of ensuring that no vehicle is approaching along the off-side. That child, or more correctly, his guardian, the car driver, might be held to be 75% contributorily negligent.

And similarly the passing motorist might reasonably have expected a stationary car at a petrol station to contain a child who could, at any moment, open a door without warning, since another child in that car had, perhaps, just seconds before done exactly that, and had opened a nearside door of the car.

Consequently, a cautious motorist should have slowed down to <5mph as a reasonable precaution against the event of another child opening another door on the car. Since the motorist did not slow down as a precaution, in his case, contributory negligence might be held to be 25%.

That is what Contributory Negligence is about.

I would suggest that the reason why you don't know what I mean is because you are confused about the terminology of the law. Your quoting of cases and general style of reasoning suggests to me that you are a law student, though irrespective of whether you are or you are not, I will clarify.

The second section that I have underlined is wrong. Contributory negligence is an (in practice partial) defence to an allegation of negligence. In a case where the court decides against the Defendant in an action for negligence the court will record a finding of negligence against the Defendant (not contributory negligence, just negligence). If, however, the Claimant is adjudged to have contributed (note the word) to his own loss, he will half to bear a portion of the loss of his own due to his contributory negligence. It is a defence, not a general term. Which is why in the second underlined section the child will found to have been negligent, and the driver will have a finding of contributory negligence against him. A Defendant cannot have a finding of contributory negligence against them.

asbokid wrote:

I never said that! I said and I quote: "a Court would probably use something like the Gillick Competence Test"

Note that I said "something like"... i.e. not the Gillick competence test itself.

I know what you said. But the fact of the matter is that the Court would not use something like the Gillick Competence Test. They would use standard negligence principles and alter the standards accordingly.

asbokid wrote:

I'm quite well aware of the Gillick case since the Gillicks have been friends of my parents for decades. As a child, I used to play with their children (which kept me busy as there were a lot to play with!)

And let's not mince our words.. the case was never about unnamed "medical procedures". It was about abortions being carried out on underage girls as young as eight. The Gillicks wanted the courts to rule that this should never happen without parental involvement.

It's a moot point, but since the case went against Victoria, I feel it is pretty cruel that the test for whether a girl of eight should undergo an abortion without her parents' knowledge, was named after the very woman who fought determinedly against that.

I didn't say that the case was about 'unnamed medical procedures'. But the test, to which I was referring, does extend to all medical procedures. Not sure of the reason for the immediate defensive response to my point there just because you happen to know Victoria Gillick (actually, that probably is the reason), but in any event you missed my point completely.

EDIT: Oh, and just so you are aware I did see your post before you edited it. And for the record, I have nothing personal against Victoria Gillick, nor have I passed any sort of judgment on her as a person. I have no idea why you would think that, but either way stating that (even temporarily) did suggest pretty strongly that you have allowed personal ties and knee jerk defensive reactions to cloud any sort of objective reasoning in relation to that point. But then again you probably realise that, because you edited it out.

asbokid

Crazy_Jamie wrote: »

The second section that I have underlined is wrong. Contributory negligence is an (in practice partial) defence to an allegation of negligence. In a case where the court decides against the Defendant in an action for negligence the court will record a finding of negligence against the Defendant (not contributory negligence, just negligence). If, however, the Claimant is adjudged to have contributed (note the word) to his own loss, he will half to bear a portion of the loss of his own due to his contributory negligence. It is a defence, not a general term. Which is why in the second underlined section the child will found to have been negligent, and the driver will have a finding of contributory negligence against him. A Defendant cannot have a finding of contributory negligence against them.

Well thanks for clarifying, if that's what you've done. although it strikes me that this is a very pedantic issue over semantics.

This whole argument revolve around the simple question of which party is which. Who is the claimant and who is the defendant here? And since I didn't identify either, I'm not sure what you are arguing..

If the defendant is the passing motorist, then the child's action of opening the car door might be viewed as contributory negligence.

but if the passing motorist is the claimant, as seems to be the case here, then everything is reversed.

It would up to the child's guardian (the driver of the stationary vehicle) to establish that the passing motorist 'failed to take ordinary care' and that this failure of care was negligent and a contributory cause of the accident.

So as I understand it, the term contributory negligence is equally applicable here, depending on who is who.. who is the defendant and who is claimant?

Crazy_Jamie

asbokid wrote: »

Well thanks for clarifying, if that's what you've done. although it strikes me that this is a very pedantic issue over semantics.

It's not semantics. Negligence is a tort. Contributory negligence is a common law defence to an allegation of negligence. The two are different things entirely. Even if you know what you were talking about, at the very least your post muddled the two principles, and as such could well have confused others.

asbokid wrote:

This whole argument revolve around the simple question of which party is which. Who is the claimant and who is the defendant here? And since I didn't identify either, I'm not sure what you are arguing..

If the defendant is the passing motorist, then the child's action of opening the car door might be viewed as contributory negligence.

but if the passing motorist is the claimant, as seems to be the case here, then everything is reversed.

It would up to the child's guardian (the driver of the stationary vehicle) to establish that the passing motorist 'failed to take ordinary care' and that this failure of care was negligent and a contributory cause of the accident.

So as I understand it, the term contributory negligence is equally applicable here, depending on who is who.. who is the defendant and who is claimant?

Commendable attempt at salvaging your position, but it is abundantly clear at this point that the car driver here is going to be the Claimant and the OP is going to be involved as the Defendant, either personally or through her child. There is no question about that. As such the issue is whether her or her child has been negligent, and whether any level of contributory negligence can be placed on the driver due to his speed and/or not keeping an adequate look out.

But keeping things practical, the evidence of contributory negligence here is somewhat slim. Whilst I do not doubt what the OP is saying about her son being able to judge speed, more substantial evidence would be required for that argument to have a chance of succeeding realistically.

darich

lisyloo wrote: »

My experience is that if you have full NCD and it's protected then your premium does not rise as the result of a single claim but it almost certainly will after multiple claims, so you have used up a "life" as it were.

i always thought that NCD maintained your percentage of discount, and didn't guarantee no premium increases.
By that i mean i have max NCD - say 60%. if i claim my insurance and my NCD is protected then i'll still have 60% but the insurance could easilty increase my premium if they consider me a higher risk and still give me 60% discount.

i realise you're relating to your own experience and i'm not disputing what you say. Would be grateful if you could clarify - i've never actually had to make an "at fault" claim - my 2 or 3 claims have all been other drivers' faults......touch wood so far!!!

Quentin

You can have a "play" with your profile (to show no claims, or 1 claim etc) by doing "virtual" quotes on line to see what difference having a claim would make to premiums (even though your ncd is protected).

lisyloo

i always thought that NCD maintained your percentage of discount, and didn't guarantee no premium increases. By that i mean i have max NCD - say 60%. if i claim my insurance and my NCD is protected then i'll still have 60% but the insurance could easilty increase my premium if they consider me a higher risk and still give me 60% discount. i realise you're relating to your own experience and i'm not disputing what you say. Would be grateful if you could clarify - i've never actually had to make an "at fault" claim - my 2 or 3 claims have all been other drivers' faults......touch wood so far!!!

Yes you are right.
There are two elements.
There is the NCD discount and a possible loading on your premium for accidents.

I had a small fault claim last June.
Before deciding to go via insurance or pay directly, I investigated whether my car premium would rise, so I did quotes with 0 claims and 1 fault claim.
This is quite easy these days with confused.com because you can edit quotes so you don't to re-enter everything.
The prices were unaffected.
Therefore I concluded that Iwas not loaded due to the accident.
A friend of mine also had the same experience.

However on my motorbike I have not got to full NCD yet and the (car) claim did affect my premium slightly (although not my NCD as it's a seperate NCD).

This is clearly all anecdotal and could be also down to other risk factors like age, but from these 3 anecdotes, it does appear that a single claim does not affect you if you have full NCD protected. when I put in a higher level a claims, then my premium was certainly affected, so you are only allowed to be "unlucky" once. Therefore although you are unaffected you have to remember that you've used up your "free ticket".

asbokid

The following from Bingham & Berrymans - [9.108] in the 12th edition...

Claims for damages for personal injuries or for damage to passing vehicles caused by the opening of the offside door of a stationary car are extremely common but, perhaps because the negligence is self evident, they rarely result in a reported decision.

For examples where a passenger was to blame, see Brown v Roberts [1965] 1 QB 1, [1963] 2 All ER 263, [1963] 3 WLR 75, 107 Sol Jo 666, [1963] 1 Lloyd's Rep 314.

Prosecutions were at one time laid under the Highway Act 1835, s 77 or 78. They are now brought under the Road Vehicles (Construction and Use) Regulations 1986 SI 1986 No 1078, reg 105 which provides:

'No person shall open or cause or permit to be opened any door of a motor vehicle or trailer on a road so as to cause injury or danger to any person.'

The regulation does not give a right of action to a person injured by the breach - see Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 and Phillips v Britannia Hygienic Laundry Co [1923] 1 KB 539; affd [1923] 2 KB 832, 93 LJKB 5, 129 LT 777, 39 TLR 530, 68 Sol Jo 102, CA.

For a case in which justices were held on a prosecutor's appeal to the divisional courts to have been entitled to hold that there was doubt whether opening a car door had caused danger, see Sever v Duffy [1977] RTR 429.