I was knocked off my bike on my commute into work. A Polish registered van pulled up on London’s Haymarket and the right hand door, on a left hand drive vehicle, was opened directly in front of me, which clipped me off my bike.
I had a painful, but short lived, fracture to my little and ring finger and six weeks off work. My insurer appointed Solicitors who got me to see a doctor when my hand was still in plaster (which I thought was a bit odd), but now all progress has ground to a complete halt.
After a year we are no further forward. The Polish insurers have appointed a UK agent to deal with my case, but liability has been denied on the grounds that I should have anticipated the door being opened and I was passing too closely – bear in mind this was down one of the busiest one way streets in London. They also said that as they do not insure the passenger and the driver is not responsible for the passenger, so they will not pay. Finally, my own insurance company appointed Solicitor said he cannot do anything with the judgment or even start proceedings against a person resident in Poland, is any of this correct?
No. Every single point that has been made is wrong. There are very few cases involving ‘door opening’ that go to Court because these are such, ahem, ‘open and shut cases (don’t give up the day Job, Andrew – Ed).
This line of defence was tried in a 2004 Court of Appeal case (Burridge v. Airwork Ltd) and the Court of Appeal dismissed it. You do not owe a duty of care to presume that car drivers or passengers will not throw doors open in your path. The second point is that the harm arose out of the use of a vehicle on the road and it is now absolutely established law that the insurer is liable for all normal uses of the vehicle on the road, which, funnily enough, includes using the doors.
The third point that the driver and vehicle are both Polish is a complete red herring. You have a direct cause of action against the Polish insurer and the Polish driver under European treaty law. if you had a competent Solicitor he would know not only how to serve Court papers out of England and Wales but he would also know that you can sue the insurer directly, which means you do not have to track down the Polish driver.
It seems to me that you have got involved with a claims firm that does not have the technical knowledge to bring an out of Jurisdiction case. Your case will be governed by English law and the Polish Insurers will have to meet any Judgment. Your solicitors are right that enforcing a Judgment in a foreign country can be quite hard work and quite slow.
We have had to do It ourselves, but all EU countries have a method by which judgments can be enforced. It is not something that many Solicitors do regularly, but It seems to me that your Insurance appointed Solicitors do not want to appoint local Polish agents to deal with the enforcement of the Judgment they will inevitably get in your case.
Fast Bikes September 2015