As an expert scooter accident lawyer I am often approached by scooterists who collide with car doors being opened directly in front of them. Most will form the initial impression that they are to blame particularly as they would inevitably have been filtering or at least overtaking. Well, from my 28 years of experience, I can tell you to think again.
Firstly we must as scooter riders accept that one of the joys of riding a scooter is that we can nip through traffic and make progress when others can’t. Filtering is not illegal it is just a riding skill that needs to be carried out with the upmost care.
Indeed I have heard a judge in a trial describe filtering as a “manoeuvre fraught with great hazard” and have always remembered the quote and repeat it to clients and my staff regularly to focus the mind when analysing the aftermath of a scooter accident.
Another way of putting it is to remember at all times when you are filtering that if something goes wrong you must be able to explain every aspect of your riding from a witness box. You will have a very difficult day in court if the evidence suggests you were weaving like an eel and a collision occurs.
Be that as it may we are talking here about a scooter striking an open car door or to be more precise a car door striking or blocking a passing scooter. So let’s consider the law that is at play.
Well to be able to claim damages and compensation you have to be able to establish that the other person owed you a duty of care, breached that duty and caused you injury and loss.
Every road user, driver, pedestrian and passenger owes each other a duty but establishing breach of that duty is often difficult. In this case we are saying that the person opening the door has a duty to keep a good look out and not cause a preventable accident. This precise scenario however is greatly strengthened from the scooterist’s point of view by the fact that opening a car door to cause injury to another is actually a road traffic offence.
The offence is contained in Regulation 105 of the snappily titled The Road Vehicles (Construction and Use) Regulations 1986 which succinctly states “No person shall open, or cause or permit to be opened, any door of a vehicle on a road so as to injure or endanger any person.”
Section 42 of the Road Traffic Act 1988 goes on to say that if you are convicted of this offence you are liable to a fine of up to £1,000 following a summons from a Magistrates Court.
This legal provision is still not very widely known despite it having been in existence for thirty years and in fact the law in the area of causing injury to anther road user can be traced back to the Highway Act 1835.
So the police could prosecute a driver or for that matter a passenger for this offence but it is rare indeed for that prosecution to happen. Normally when and if the police turn up for such an event they merely want to establish that insurance is in place and leave it for the parties to sort out.
Of course whether or not a criminal prosecution takes place is not the be all and end all of the scooter rider bringing a case for compensation. He would still have to go on to prove negligence against the person opening the door in order to succeed in his compensation claim. I pause to mention of course that because of the Civil Evidence Act 1968 and section 11 thereof if the person opening the door is convicted then that can be used as proof of evidence in the court dealing with the claim. Indeed even the papers and summons form can be produced in the Civil court showing how the accident happened. The door opener will therefore be effectively blocked from arguing primary liability.
They would however be able to argue that any award of damages should be reduced to take account of contributory negligence even if they have been prosecuted. Here it will be essential to examine evidence of the riding pre accident and as I said before the microscopic analysis of speed and weaving comes in to play. It can still be an uphill struggle though as the other person will have to prove any allegations of contributory fault and as witnesses have a tendency to scarper that evidence just may not be available.
So we have reached the point where the person opening the door may have been prosecuted and if so we have a good chance of a “slam dunk” in any legal proceedings. It’s unlikely that a prosecution would have been brought so we have to consider whether there is good evidence that the opener was negligent.
A lot depends here on the physical layout of the accident scene. If for example the rider suddenly came from directly behind to overtaking the stationary vehicle then there could be real fault found against the rider. Similarly if inappropriate speed or other reckless riding is alleged, witnessed and proved then damages could be reduced or even extinguished.
The allegation of riding too close, i.e. within a door’s width is however an easy allegation to level against the scooterist but one I always seek to counter. If the accident happens where a car ahead clearly pulls over to park then there is good argument that the rider should predict that a door may open and ride accordingly. Contrast that however with a rider filtering past stationary traffic where it cannot be predicted that a door would be opened. It is again subject to microscopic analysis of the accident.
A major problem of course is to find out who actually opened the door as there is an enormous gulf in the prospects of success for a claim where a driver or alternatively a passenger opens the door.
Clearly we are after an insurance company being in the frame to pay any award of compensation for any injuries. They insure the driver of the vehicle for any third party liability so if it is the driver opening the door we are home and dry. But what if it is a passenger?
It can be very difficult to hold an insurance company for the driver liable for the independent actions of a passenger. So if a passenger just opens the door we may be in difficulties, practically speaking, in securing a recovery of compensation for the scooter rider’s injuries. We could take action directly against the passenger if we know their details but this is ill advised as they may be a “man of straw” so in reality we would never obtain payment of damages.
It is better if we can establish some control over the passenger by the driver or in other words make the driver responsible for the actions of the passenger so his insurers are back in the frame. We can do this easily if the passenger is employed so a driver’s assistant would be a good prospect from our point of view. Similarly if the driver has some other control e.g. for a child passenger or a taxi driver dropping off a paying customer, will again give us scope to pursue recovery of damages against the insurers of the vehicle.
Insurmountable problems can occur however when an adult passenger opens the door completely independently. In that case there may only be a claim against the passenger and the risk of obtaining merely a paper judgment that can never be realised is probably going to mean no lawyer will take the risk of running the case for no reward.
Scooter riders hit by car doors have excellent prospects of recovering compensation subject to the pitfalls described above and perhaps this is a moment for me to give a tip to us all when travelling in a vehicle and opening the door to prevent causing injury to our fellow scooter rider. Open the door with your opposite hand! So if you are a driver open the door using your left hand. This will force you to turn to the right and prompt you to make that final check of your blind spot. Try it.
Lampkin & Co Solicitors
Office address: Newgate House, Broughton Mills Road, Broughton, Chester, CH4 0BY. Telephone: 01244 525725. Vat registration number 736 401 842.