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

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.

After an unpromising start, having to be bribed by her parents to learn to ride without stabilisers, Sarah became rather keener on cycling in her university years, and was eventually persuaded to upgrade to proper road cycling by the prospect of a shiny red Italian bike, which she promptly destroyed by trapping a pair of knickers in the rear derailleur. Sarah writes about about cycling every weekend on road.cc.

40 comments

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vbvb [612 posts] 3 years ago
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Strikes me that the Scottish campaign ought to focus on HGVs - an easier sell, thin end of (good) wedge.

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Jonnyd [27 posts] 3 years ago
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All power to you Mr Fallon. Strict liability needs to happen, and anyone who doesn't agree must simply not understand what it means. It's a crucial step this country needs to take to protect the vulnerable on our roads and paths.

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fatbeggaronabike [823 posts] 3 years ago
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+1 for Jonnyd

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mrchrispy [471 posts] 3 years ago
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it does seem a no brainer to sell this to drivers in terms of HGVs vs cars. I doubt they'd realise the implications if has for cars vs bike (and even bikes vs peds).

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700c [957 posts] 3 years ago
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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.

It's innocent until proven guilty in this country and there should be no exceptions.

Let's focus on getting proper justice for victims of road collisions, where dangerous driving is too often classed as careless, defaulting in lenient sentencing.

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paulfg42 [392 posts] 3 years ago
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Justice is a bit late for the victims.

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northstar [1108 posts] 3 years ago
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I think you need to read this sentence from above:

"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."

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northstar [1108 posts] 3 years ago
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I think you need to read this sentence from above:

"Although it's called 'strict' liability, the principle is in fact of 'presumed liability'"

No one will be saying they are guilty without them having their say.

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700c [957 posts] 3 years ago
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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.

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bendertherobot [1146 posts] 3 years ago
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Quite a lot of confusion here, both in the article and the comments.

Where to start. First this is a CIVIL case. So, let's try to ignore the comments about innocence and guilt. Those are the preserve of the criminal law.

Strict liability in civil cases is, as the article says, quite different from presumed liability. Strict is for cases where, for example, a claimant merely has to show that the claim is of a type which the law recognises as strict and which the defendant caused. It requires no fault, merely causation, though those issues can be complex.

Presumed is simply a starting point. The car is presumed to be at fault but it's rebuttable.

Presumed isn't bad. It doesn't make a driver at fault, just starts with a different premise.

But, here's the rub, this will simply be a decision of the High Court. They won't impose such a law and, even if they did, it would be appealed to the Supreme Court. Even if they confirmed it Parliament could overturn it with legislation.

No, the best way that this can happen is to lobby politicians to make legislative change.

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CotterPin [63 posts] 3 years ago
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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.

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robbieC [60 posts] 3 years ago
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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?

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BMC_rider [27 posts] 3 years ago
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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

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atlaz [191 posts] 3 years ago
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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.

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neildmoss [306 posts] 3 years ago
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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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700c [957 posts] 3 years ago
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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.

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Wookie [242 posts] 3 years ago
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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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bendertherobot [1146 posts] 3 years ago
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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.

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700c [957 posts] 3 years ago
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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.

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bendertherobot [1146 posts] 3 years ago
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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

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bendertherobot [1146 posts] 3 years ago
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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.

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mrmo [2088 posts] 3 years ago
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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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700c [957 posts] 3 years ago
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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

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bendertherobot [1146 posts] 3 years ago
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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

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bendertherobot [1146 posts] 3 years ago
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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.

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atlaz [191 posts] 3 years ago
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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?

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bendertherobot [1146 posts] 3 years ago
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Generally a personal claim.

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shockleader [26 posts] 3 years ago
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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.

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SideBurn [890 posts] 3 years ago
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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.

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700c [957 posts] 3 years ago
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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.

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