Paragraph 239 of the Highway Code imposes a duty upon drivers before they or their passenger(s) open a door, to make sure that it will not hit anyone passing on the road or pavement, or force them to swerve. They have a duty particularly to watch out for pedestrians, cyclists and motor cyclists.
Greta, a young, fit and experienced cyclist was knocked off her bike at night by an offside passenger who did not check before opening the door into her path. Greta’s bike was properly lit. Greta struck the car door side on, and suffered spiral fractures to the metacarpals of two fingers on her left hand, which was trapped between her handlebar and the door. She also had some small scarring to her face where she struck the floor.
The Police were uninterested in pursuing the passenger for a breach of her duties to Greta. However, failure by the Police to act is not by any means fatal to pursuing a successful civil claim. A person will not be convicted unless they are believed to be guilty beyond reasonable doubt. Civil claims are proved “on the balance of probabilities” which means “more likely than not”. A claim was therefore made against the driver, who was insured. Insurers will normally deal with the liability of their insured’s passengers in these circumstances.
Although the passenger had been pretty unhelpful to Greta and had assumed that Police disinterest meant that she would face no further claims, her insurers took a more realistic attitude. They did not allege that Greta had been cycling too close to the vehicle. They did raise the absence of a cycling helmet as contributing to the facial injury Greta had suffered.
There were claims for loss of income (Greta had a number of casual jobs, paid in cash and proving loss was difficult). They initially proposed a settlement figure of £10,000 but we persuaded them that a more realistic settlement would be £12,500. We made allowance for a possible argument about the absence of a cycle helmet contributing to the minor scar on her forehead. (The law on cycle helmets is that the defendant has to show that the wearing of a helmet would have avoided or significantly reduced the chance of injury; it is likely if they succeed in proving that, the injured claimant’s compensation for that injury will be reduced by about 15%).
The insurers also paid Greta’s costs, although under the new costs regime which the Government introduced last April, Greta had to make a contribution. The Government has fixed costs recoverable from the driver’s insurer at an unrealistically low rate, which means that accident victims will commonly have to contribute to the cost of getting compensation. Part of that cost is to pay the insurance premium for the policy taken out on all “No Win – No Fee” cases to protect the claimant against costs orders they may face.