Thoerectical question

lisyloo

Gale force winds.
Normal parking spaces i.e. you cannot open door fully without hitting another car.

A driver gets into the car and is unable to control the door in gusty gale force winds. Door flies out of their hands and hits nearby car.

Is the driver liable?

I know in a normal situation these actions would not be considered negligence. But the RTA and car insurance has rules of it's own.

forgotmyname

Dont let go of the door. Where i park my car is like a wind tunnel. I open it carefully grabbing the edge of the door as well as the handle.

I dare not open the boot in case it flies away. Boot is shaped just line an aeroplane wing when open.

If someone hit my car with their door i would expect them to pay up. If they didnt i would go through the insurance.

lisyloo

Dont let go of the door.

That's simply not always going to be possible for someone elderly, disabled, small, weak etc. or even for a healthy big strong male in extreme conditions.

If someone knows the legal liability answer then I'm intrigued as I saw it happen today (looked like a sudden gust took the driver completely by surprise).

vaio

Old story......If there is no negligence then there is no liability so it's going to come down to convincing a judge that there was no negligence.

Throw in a bit of pragmatic reality and I suspect the drivers insurer would just pay up as for a dented door it's likely the unrecoverable court costs would out way any possible gain by trying to convince a judge

Yorkie1

The RTA does not use the concept of negligence.

Owing to the presence of one car in the public place, damage has been caused to another car. That gives rise to the duty to provide details to the car owner at the scene or as soon as reasonably practicable to the police. Failure to do so is a criminal offence, irrespective of the blameworthiness of the person in the original car.

Can't remember the insurance policy situation - that's civil law.

By the way, some scum of the earth did this to me in Tesco's car park a couple of weeks ago. Massive dent in one door. No note left, no CCTV, no report to the police. Thanks very much to whoever it was. :mad:

thenudeone

Insurance will not pay out (nor will a court make a judgement) unless there is negligence.

This is shown vividly if, for example, you have a heart attack at the wheel and have an accident killing someone. Your insurers WILL NOT pay out unless there was some negligence on your part (eg: driving against medical advice, not taking your medication etc.).

This known as the automatism defence.

Not really relevant to a banged door but below is a quote from a debate in parliament on the injustice caused by this issue:
http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm081119/debtext/81119-0004.htm (it's a long page - search for automatism)
19 Nov 2008 : Column 237
Road Traffic (Accident Compensation)
12.35 pm
Dr. Brian Iddon (Bolton, South-East) (Lab): I beg to move,
That leave be given to bring in a Bill to provide for no-fault compensation for personal injury in road traffic accidents where liability cannot be established.

As the House knows, British civil law says that in cases where an accident has taken place, negligence and liability must be established before compensation can be paid. In the vast majority of cases, negligence and liability are established through insurance firms and compensation is awarded to the injured party. Where liability and negligence are contested, the case may go to court and the decision on the levels of compensation will be made by a judge.

Every year, a small number of people are injured in road traffic accidents where liability cannot be established and a defence of automatism, or involuntary action, is used by the defendant. The victim is left injured, with no compensation to ameliorate the situation. It is because of such a case in my constituency that I have been moved to act on this issue and to seek to introduce this Bill.


So if there is no negligence - there is no payout

vaio

Yorkie1 wrote: »

The RTA does not use the concept of negligence.

Owing to the presence of one car in the public place, damage has been caused to another car. That gives rise to the duty to provide details to the car owner at the scene or as soon as reasonably practicable to the police. Failure to do so is a criminal offence, irrespective of the blameworthiness of the person in the original car.

Can't remember the insurance policy situation - that's civil law......

Nah, RTA does recognize negligence.

For example s151 requires insurers to pay judgements against drivers and for a judgement there must be negligence

lisyloo

Owing to the presence of one car in the public place, damage has been caused to another car

There might be an obligation to leave details, but just because damage is caused does not mean anyone is liable.

For example if tiles fall off a roof in a storm the householder is generally not liable (unless there is negligence - but that doesn't normally apply in extreme weather).
The second example is the car driver that has a heart attack.

It's just one of those things.

I think that things flying about in the wind (shopping trolleys, car doors etc) in extreme weather are generally not a case of negligence - although as some have pointed out insurance companies take pragmatic decisions.

Yorkie1

vaio wrote: »

Nah, RTA does recognize negligence.

For example s151 requires insurers to pay judgements against drivers and for a judgement there must be negligence

Sorry, I was too imprecise. I meant that s.170 doesn't recognise the concept of negligence.

lisyloo

I don't know what s151 and s.170 are, but I know there are parts where the insurer has to pay out as a last resort when there is no negligence.
The damage can be caused by an uninsured driver or a thief but the insurer is found to be the last resort.

I think that's probably a good thing and doesn't apply here.

The reason I asked the question is that the RTA is sometimes different from general law e.g. being the insurer of last resort when there is no fault/blame/negligence at all.

In this case it appers normal law applies i.e. no negligence, then no pay out.

Aretnap

All liability in road accidents ultimately arises from negligence. You're perhaps thinking of situations where an insurer has to pay third party claims against an uninsured driver or a thief, in spite of the fact that the driver wasn't covered by the insurance policy. However for the liability to arise in the first place there must still be negligence on the part of the driver. If someone steals your car and drives it perfectly but has an accident anyway (perhaps a pedestrian runs out in front of them and they have no chance of avoiding the collision) your insurer won't have to pay out to the injured party, even as the insurer of last resort.