Open and shut case?
by Andrew Dalton on Jan.05, 2012, under Andrew Dalton, Articles
When you crash into a car after a door’s been opened, who do you claim against?
I was knocked off my motorcycle when the passenger of a car got out. The car was parked facing towards me in a queue of traffic and as I rode past it the door shot open. I hit the door, the door smacked back hard, apparently breaking the wrist of the passenger, and I now find myself getting sued. I did not suffer any injuries but I do have quite a deep gash on the fairing of my bike.
I think it is a real cheek that I am being sued over this, when I want to sue the car driver for the damage to my bike. Where do I stand on this as I want my bike fixed, rather than pay for someone’s broken arm?
Name withheld
Answer
You have raised a very difficult point of law. As a preliminary point, the passenger opening the door in front of you has no claim whatsoever. Make sure your insurers resist this with everything they have got. An adult opening a car door into the path of a motorcyclist would be found to be negligent. You had right of way, you were there to be seen, and there is no allegation of excessive speeding against you.
However, your proposal to sue the insurers of the car is rather more difficult. Road traffic insurance has to cover the user of a vehicle. The act of negligence is not that of the driver. It is the act of the passenger, and the passenger is not covered, nor does he have to be covered, for third party risks, including yours.
However, I would say that this is a very technical application of the law, and I suspect the car driver’s insurer would, if you put a reasonable claim to them, pay up, even though as a strict matter of law they do not have to.
Andrew Dalton
Fast Bikes January 2012
Andrew Dalton has been writing articles for Fast Bikes Magazine for a considerable period and have condensed what we believe are the most useful articles to you. White Dalton Motorcycle Solicitors deal with personal injury claims and our sister company, Motor Defence Solicitors, deal with any road traffic offences.
About Andrew Dalton
Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focussed on getting the best possible outcomes for his clients.
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January 9th, 2012 on 8:24 am
Surely the driver should carry some responsibility for the actions of his passenger, making him and his insurers liable in this case?
February 10th, 2012 on 7:32 pm
I sometimes find it difficult to understand exactly what the ‘insurers’ are actually insuring. Are they insuring (in my case) me or the vehicle. I am not sure the ‘insurers’ really know either. Logically I would suggest that it is me they should be insuring as the driver of whatever vehicle, or vehicles, I nominate and the premium should be based on my record as a driver.
I cannot see that changing a vehicle should alter a premium significantly – But, however, it seems the insurers want to have their cake and eat it – If I want to by a bike better suited to my needs, say for example a Fireblade to replace my CBR600RR (so I can have a lazier ride with fewer gear changes per yard) the premium jumps with gasps of ‘Oh but it is a much more powerful bike’. On this basis it looks as though it is the vehicle that is the prime driver. But, when I queried why my renewed car policy now excluded ‘any other car’ they responded with cries of ‘Oh, but you are over 75.’ So they are now using ageism, not my driving record, as a means of extracting more money from me. When I pointed out that my bike insurers placed no such limitations on my bike policy, covering a bike with a power to weight ratio that few cars ever see, with a top speed at least 60 mph faster than my car at a policy cost that is less than they charge for the car (1997 Carina E SE Auto) all I got was a mental shrug of the shoulders.
For the record I have a clean licence for 61 years. I have had, as far as I can recollect, two definite claims made against me in that time, both very minor, both car related. There was a possible bike related claim, back in the 60s, but I am not sure the outcome was in that instance. With around one and a half million miles under my driving belt I think my record is pretty good and that is what should govern the cost of any insurance I require.
Ken Lines.