Cyclist hopes to make 'strict liability' legal history with High Court case

Suing both passenger and driver of car after being 'doored' in London

by Sarah Barth   May 12, 2013  

A cyclist who was 'doored' by a car passenger is attempting to make legal history by suing both the driver and the passenger in the High Court for £200,000.

Kevin Fallon, 48, was on his way to work in 2010 when a door opened on him in Dalston, East London.

Despite wearing a helmet, he suffered bleeding to the brain and says he still suffers headaches, mood changes, and low energy. The injury has also increased his risk of developing epilepsy.

Mr Fallon hopes to have a change in the law to a policy of 'strict liability' under which the motorist, as the less vulnerable road user, would be obliged to prove that he or she was not the cause of the incident.

Although it's called 'strict' liability, the principle is in fact of 'presumed liability', in that the person in control of the more dangerous vehicle is presumed to be more likely to have caused a collision.

“There are only a handful of countries in Europe which do not have a policy of strict negligence and the UK is one of them,” financial analyst Mr Fallon, of Walthamstow told the Evening Standard, “It is a civil law, which would state that the motorist has to prove that he did not cause the crash.

“The person in the passenger side opened the door in my path.”

Just last month we wrote about how a law firm in Scotland had launched a campaign to have the country’s civil law changed to introduce a system of ‘strict liability’ liability in incidents involving motor vehicles and more vulnerable road users such as cyclists.

The firm says that introducing the system it proposes would meant that victims would receive compensation more quickly, the burden on the courts would be reduced, and road users’ attitudes would change, with a consequent improvement in safety.

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700c wrote:
You should never presume anything. You should have to prove someone's guilt.

'Having your say' isn't going to help if you're presumed guilty because you drive a car.

Or you could turn this around and say "..if you"re presumed guilty because you were the injured person." Which is how it sort of works in this country now, the injured person has to prove *their* "innocence" (getting compensation for their injuries, etc). As well as recovering from their injuries (or sometimes, having to live with them for the rest of the lives as in this case). In fact if you going to use terms like guilt and innocence, the injured person has not only been found guilty but sentenced as well.

posted by CotterPin [64 posts]
12th May 2013 - 22:35

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Isn't it the case already that if you rear end someone in a car that you are 'presumed guilty' by insurance companies and the courts?

robbiec

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posted by robbieC [62 posts]
12th May 2013 - 22:57

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This blog post (http://www.happycyclist.org/?p=429) gives quite a good explanation of the difference in liability and guilt. Another good point from http://www.cycling-embassy.org.uk is that presumed liability also exists already for certain types of car-car collisions (rear-end shunts) although there is no reference given.

I think it is also highly likely that car insurance companies effectively use this principle in a rather larger range of cases since there must be hundreds of car-car collisions per day and not that many end up in civil courts. I have had a car-car collision where my insurer was willing to compensate the other party for damage without my input. (Eventually I did take the case to a civil court with the judge finding that I was not liable)

These liability / guilt / sentencing topics are complicated and the language used must be carefully chosen to be accurate and non-inflammatory

posted by BMC_rider [25 posts]
12th May 2013 - 23:24

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I have a basic issue with the fact that the driver is also being sued. The person opening the door is, of course, responsible but I just don't think that as a driver you can possibly argue that you have complete control of the people inside your car. The car's insurer is still liable for the damages so if that's the extent of the drivers' liability then that's okay but if there's some further responsibility, it seems designed to punish rather than deal with the fault.

posted by atlaz [154 posts]
13th May 2013 - 7:07

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JonnyD - You're right - I don't understand what it means.

If I gave you a lift and dropped you off at the office, and _you_ door'ed a cyclist, do you truly think _I_ should be presumed to be at fault?

I would then have to prove my innocence?

I really, truly, just don't get it.

Words of one syllable required, please!

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posted by neildmoss [188 posts]
13th May 2013 - 9:28

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Thanks for clarification.. Well ok if this principle is limited to civil cases, perhaps implications are not quite as bad as I first thought.

I understand the civil Court has a lower standard of proof than criminal

Then again, if I was being sued for £200k, it would ruin me -assuming a situation where there was no coverage from insurance company (eg passenger being sued), so consequences almost as severe as if applied to a criminal court.

And yes, I would absolutely expect someone to prove that I was to blame if I was being sued for such a life changing sum of money.

What gets me wound up is the lenient sentences passed to drivers when they are proved to have hit cyclists. This is what campaign groups should focus on, not something that makes compensation claims easier based on presumptions. Compensation itself can be a really thorny issue and such changes will do nothing to improve public perception of cyclists.

posted by 700c [556 posts]
13th May 2013 - 9:37

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robbieC wrote:
Isn't it the case already that if you rear end someone in a car that you are 'presumed guilty' by insurance companies and the courts?

Simple answer is no. you still need witnesses as I discovered.

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posted by Wesselwookie [129 posts]
13th May 2013 - 10:08

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Again, let's look at the issues calmly.

In relation to the comment about "If I were a passenger, it would ruin me financially."

Yes, it would. It would ruin you if you opened a door into a cyclist without looking and you were not able to rebut the presumption that it was your fault. Now, let's think about proving the blame. What's wrong with the simple factual situation where a stationary car, opening a door into traffic, hits a cyclist passing by. Isn't that a good presumed liability situation? Now, you aren't simply going to have to pay up simply because it occurred. It's just a reversed starting point. If you can show that you did nothing wrong and the cyclist was at fault you walk away.

It's that simple really. Compensation is designed to put the injured party, to the extent money can do so, into the same position that they would be if the accident had not occurred.

Now, suing the driver as well? Difficult territory. They've done nothing wrong. The reason that's being tried here is because the passenger doesn't have insurance. It's not likely to succeed unless the driver should reasonably have stopped the passenger from acting in the way they did.

posted by bendertherobot [268 posts]
13th May 2013 - 10:39

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Hang on a second Benderthebot, I have nothing against compensation per se, and understand it's propose. As for making presumptions about this case -well you can't and neither can I, as we don't know the facts from both sides. I was merely pointing out the stakes, in a situation where the individual, not the insurance company, can be sued.

Yes the claimant should still have to prove the alleged perpetrator is at fault, using strict liability puts the onus on the person being sued to prove his innocence, does it not?

This, I believe is still inherently unfair.

posted by 700c [556 posts]
13th May 2013 - 10:52

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Perpetrator and innocence? They're not charged with a crime. They're claimed to be at fault.

It's simply a reversal. Currently the burden falls with the Claimant in all cases. Here the burden would fall to the dangerous vehicle user to show that they were not at fault. If they were not then they will escape liability.

Of course, a lot depends on witnessess and proof. But that's no different now to where the claimant, who, remember has been injured, stands.

As to the present case I would imagine, even without knowing the facts, that the Court will simply determine it on a fault basis and dodge presumed liability

posted by bendertherobot [268 posts]
13th May 2013 - 11:05

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Added to this, of course, is the fact that, knowing such a reversed presumption exists, motorists might be that little bit more careful.

posted by bendertherobot [268 posts]
13th May 2013 - 11:09

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driver is guilty because they are in charge of the car and all its occupants i believe, isn't it the case that if a passenger refusese to wear a seatbelt the driver can be prosecuted?

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posted by mrmo [1064 posts]
13th May 2013 - 11:36

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Ok, so if a kamikaze cyclist serves in front of your car, you hit him as you cannot avoid him. You do not have proof that you are not at fault, nor does he have proof of any kind.

You get sued.

as a car driver and a cyclist, I find this unfair. Would it not have the effect of increasing the amount of compensation
claims that are erroneous?

Someone bringing a civil claim should need to prove fault, surely.

And if the aim is to improve safety and driver behaviour, the powers that be should focus on increasing penalties and prosecution rates on the criminal side, rather than this focus on compensation and the civil courts

posted by 700c [556 posts]
13th May 2013 - 12:03

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No, unless they are a child. That's for the criminal offence of not wearing a belt though and again not a civil offence. A driver could be held at fault for the acts of his children in civil law

posted by bendertherobot [268 posts]
13th May 2013 - 12:16

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700c, yes, that's certainly the flip side of the coin.

But that ignores the point to "you get sued."

You go before a Court and the judge will determine whether said cyclist was at fault. You give evidence. He gives evidence.

There's nothing all that different to now save that you start the case presumed to be at fault. That's all.

Now, it may affect premiums, that's for sure.

posted by bendertherobot [268 posts]
13th May 2013 - 13:38

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How does compensation work right now if a passenger opens a door and injures a cyclist? Is it on the car insurance or a personal claim?

posted by atlaz [154 posts]
13th May 2013 - 14:35

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Generally a personal claim.

posted by bendertherobot [268 posts]
13th May 2013 - 14:50

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An interesting article here:-
http://citycycling.co.uk/Issue1/Legal.html

It is important to understand that the concept of Presumed Liability already exists in England and Wales (sorry, I can't speak for the Scottish legal system)especially in Elf and Safety law, from a road danger reduction perspective all that supporters of PL are seeking to do is move the concept out of (for example) the workplace and onto the roads.

posted by shockleader [20 posts]
13th May 2013 - 15:58

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Strict liability already exists in road traffic law; the prosecution only need to demonstrate you have alcohol in your blood or breath. They do not have to prove you -deliberately- consumed alcohol. It is up to you to demonstrate it was accidental; if that was the case. Same with red lights; if you do not stop before the line when the red light shows you are guilty. You can claim that the lights were not functioning properly or were obscured.
Where 'dooring' is concerned the fact that a person collides with your door is evidence of negligence. Nothing to stop the driver claiming that the act was accidental; poor visibility, no lights on bike, on pavement etc.
The (generally) uninsured and consequently (generally) unrepresented cyclist is always going to be at a disadvantage in these cases. Strict liability helps to even the balance.
Remember; the first rule of suing is to make sure the defendant is sufficiently insured.

posted by SideBurn [785 posts]
14th May 2013 - 13:28

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@Sideburn, the two examples of strict liability you give are situations where the driver can be proved to have committed a misdemeanour, so of course it should be up to them to provide proof of mitigation (unlikely where alcohol is concerned, I would have thought!)

However if we always start from the premise that the driver of a vehcle (compared to cyclist or pedestrian), is liable unless he can prove otherwise, then I still believe it is inherently unfair. None of the arguments here have convinced me otherwise.

The focus of campaign groups should be on prosecution and conviction rates rather than compensation (which is of course why law firm in Scotland pushing this, as it has a vested interest!)

Fortunately it's very unlikely to be introduced in England any time soon.

posted by 700c [556 posts]
14th May 2013 - 15:48

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Here is a link to the article that Brenda Mitchell has written in response to the reaction to the push for strict liability here in Scotland. She also spoke at the Scottish Bike Show a couple of weeks ago. I can also dig out the link for that as well if wanted.

The whole strict liability will be a step forward in making our roads safer. If you are a good driver then you have nothing to worry about. Those that don't like it are the ones who do not take responsibility for driving with respect for vulnerable road users. The same applies to cyclists. Police reports ( if involved ) witnesses etc will show who was in the right or wrong and so determine the result of the claim.

http://www.cycling-accident-compensation.co.uk/blog/dispelling-the-myths...

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posted by giff77 [1045 posts]
14th May 2013 - 16:16

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Giff77, thanks for the link. Confirms my fears that someone can bring a civil case against you as a driver, (or cyclist if involved in collision with ped), and the onus is on you you to prove that you weren't at fault. Completely unfair.

As for your sweeping generalisation:

giff77 wrote:
Those that don't like it are the ones who do not take responsibility for driving with respect for vulnerable road users.

I have set out the reasons why I don't think it's a good idea, and I can confirm I am a responsible driver and cyclist, particularly with respect to vulnerable users, so you're wrong on that one.. In fact statements like yours are simply trying to quell reasonable debate on the issue, aren't they.

posted by 700c [556 posts]
14th May 2013 - 17:27

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Quote:
Whilst I have every sympathy for Mr. Fallon, 'strict liability' is not the answer and will only worsen public perception towards cyclists, enhancing the 'them and us' attitude.

Reversing or improving the current situation may take some unpopular moves, so be it, the responsible cyclist is already in a poor position too often.
I don't find a 'them and us' situation while cycling in Europe where there is assumed liability. Quite the opposite. I'm not getting into cause and effect here but I would say if the same assumed liability is placed on cyclists in pedestrian collisions I'd agree with it.

posted by james-o [190 posts]
14th May 2013 - 18:07

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700c wrote:
Giff77, thanks for the link. Confirms my fears that someone can bring a civil case against you as a driver (or cyclist if involved in collision with ped), and the onus is on you you to prove that you weren't at fault. Completely unfair.

Consider this: You are cycling along minding your own business in a responsible way, and a car collides with you causing severe injuries that mean you are in hospital for months and cannot remember the incident. You will need a lot of money to adapt your house so you can live there with your disabilities, you cannot work and will need help and care with everyday living for the rest of your life. There were no witnesses and the driver claims it was not his fault. You are in no fit state to challenge him or her in court and the stress of it all delays recovery. Completely unfair.

The concept of presumed liability -- which is often used in health and safety legislation -- simply moves the burden of proof from the victim to the perpetrator. One of you must carry that burden, of course, and by making the weaker party carry it, as we do now, leads to greater injustices than it would the other way round. Presumed liability ensures that victims are compensated by drivers' insurers (rather than their becoming a burden solely on the NHS) when they are not in a position to prove it, unless their own fault can be proven.

You fear being held responsible for a collision that was not your fault (a much lesser sentence than the victim's in this hypothetical case though). Of course, if the cyclist's behaviour caused the collision, so that a judge would declare them the author of their own misfortune, you would be cleared.

posted by arowland [84 posts]
14th May 2013 - 18:30

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I think the fact that there is a cyclist, pedestrian etc injured and your door is damaged are good evidence that a misdemeanour has taken place in the same way as having alcohol in your body suggests you have deliberately consumed the alcohol.
If instead of thinking that strict liability means, 'proving your innocence' you think that the accused 'looses the right to silence'.
The victim still has to demonstrate that they have a reasonable case. The accused simply has to provide a reasonable explanation for how the event could have happened without their guilt or negligence. This should be straightforward, unless in reality they are guilty or negligent.

posted by SideBurn [785 posts]
14th May 2013 - 19:35

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You mean, it moves the burden of proof from the 'alleged' victim to the 'alleged' perpetrator.

Ie there is no proof either way.

Or to put it another way, you can bring a civil case against somebody and because of their mode of transport, the odds are attacked against the car defendant and he is sued because of the presumption made by the civil court using strict liability.

This is the kind of thing that would be exploited by litigious individuals I'm sure. Just look at the number of erroneous whiplash claims and staged accidents that result in insurance fraud. People exploiting the system.

The scenario you outline above would almost certainly have resulted in a criminal conviction anyway, assuming the police investigated properly.

as I've said, it's problems with lenient sentencing in the criminal justice system that should be addressed rather than lawyers trying to increase their income from greater numbers of compensation claims.

Must stop posting on this topic now! Would much rather be out on my bike instead but the bloody weather is miserable today.. Surprise

posted by 700c [556 posts]
14th May 2013 - 19:48

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700c wrote:
As for your sweeping generalisation:

giff77 wrote:
Those that don't like it are the ones who do not take responsibility for driving with respect for vulnerable road users.

I have set out the reasons why I don't think it's a good idea, and I can confirm I am a responsible driver and cyclist, particularly with respect to vulnerable users, so you're wrong on that one.. In fact statements like yours are simply trying to quell reasonable debate on the issue, aren't they.

I have no doubt that you are a responsible driver or cyclist as are many on this forum. I was taught to drive by somebody who held an advanced licence. I was taught to show consideration, courtesy and care towards other drivers. Something that sadly does not appear to be taught any longer. I am not making a sweeping statement to quell the debate here. As has been mentioned strict liability would make our roads safer. Motorists generally drive with care when interacting with other motorists. They seem to abandon this concept whenever they have to interact with vulnerable road users. Only when they realise that there are consequences for their poor driving skills be it civil or criminal will things change.

I was hit by a hit and run driver a lot of years ago. He was 100% in the wrong. He was also drunk. Fortunately a witness got his number which allowed the police to arrest him. I never received compensation from his insurance company as they refused to pay out. Strict Liability would have changed all that.

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posted by giff77 [1045 posts]
14th May 2013 - 20:55

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I also agree with you on the prosecution side of things 700cc. If some tosser new he was going to be flung into the clink for 5 years minimum for killing a vulnerable road user I am sure he/she would not drive like a total tosser.

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posted by giff77 [1045 posts]
14th May 2013 - 20:59

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WELL DONE Mr Fallon , let's all start a fund to help meet the expenses !

properly done with a 3rd Party Org. to avoid repeat of the situation that is occuring with Paul Kimmage's situation !

Skippy(advocate for "Disabled / Para Sport")@skippydetour. blogging as skippi-cyclist.blogspot & Parrabuddy.blogspot currently on the road with ProTour Grand Tour Events .

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posted by skippy [383 posts]
16th May 2013 - 19:34

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Suing the driver: yes, because the driver can see in both wing mirrors and should have checked before ANYONE opened a door.

posted by drmatthewhardy [303 posts]
10th August 2013 - 9:20

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