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Thank you Tony g, that's all very helpful. There was also a report made on the lorry's level of maintenance which was said to be in order, so accident not due to lack of maintenace. On that day I had previously seen a motorway notice warning of debris on road, so had been looking out for it, but saw nothing, but travelled some way in the slow lane on the alert before overtaking. It is thought that maybe the lorry picked up something - but who knows and does this have a bearing on the situation? I will look into filing in small claims court and notify the lorry firm accordingly as you suggest. Their insurers were agreed on the price but it came unstuck on the liability issue. The other thing you mention about secondhand parts etc. I had also thought of that, but don''t know how to find out about it? This has never happened to me before. Do I do a google search for secondhand parts. Do I look for car brakers etc? I could accept a write-off figure, but then I'd still have the excess to pay + a loss of no claims bonus which is going to bump up the premium considerably.
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Have got on to car breakers in my area - thanks,
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Have got on to car breakers in my area - thanks,
E bay are very good for parts both new and second hand .
Tony g
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It's not as clear cut as that.
If the haulage company can prove a thorough maintenance system is in place that was followed. Then they can argue they have taken all reasonable steps to avoid a claim which is sufficient in law to deny a claim in these circumstances.
This sounds like their argument which appears to have been accepted by the OP's legal representatives
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So ,a tile falls from my neighbours house in a high wind and damages my car ,my neighbour has not been negligent in the maintenance of his roof .
So it's not a maintenance issue ,yet the neighbours insurance pays for the damage .The owner of the vehicle ,house ,whatever, is responsible for the damage it causes . Seems straightforward to me .
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Sorry tony g but that is not correct.
If a tile falls from a neighbours house and damages your car and there is no evidence that roof was negligently maintained then you can not claim off your neighbours insurance.
If there is no evidence that the lorry was poorly maintained then the OP can not claim off either the lorry owner or their insurers.
You can only be liable for damage caused by your property (or vehicle) if there is evidence that you were negligent.
This was previously discussed on this website 3 years ago.
http://www.honestjohn.co.uk/forum/post/index.htm?t=80108
If the OP issues a county court claim it will be dismissed as, unless the OP can demonstrate negligence, there is no case to answer.
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If the haulage company could not prove the vehicle was well maintenained then they would probably loose in court as courts love to documentary evidence. The haulage company in question have sent the OP the documentary proof of a maintenance schedule for their vehicle which (Assuming it's in order) would be sufficient to deny a claim.
A good example of how this system works is Mcdonalds, you may notice they have on the wall a list that shows when the toilets were cleaned which shows time and date. If a customer slipped on a spillage in the toilet, McDonalds would simply send this as their defence and (Assuming it was cleaned and inspected at suitable intervals) the claim would be denied.
Civil law works on the basis of whether the actions of a reasonable person could have avoided the accident, if you have done everything "reasonably possible" to avoid the claim eg check and clean the toilets on a regular basis then the court would normally side with you and deem it an unavoidable accident with no blame.
I had a client who owned a nightclub, he recieved regular claims for customers slipping on split drinks or cutting themselves on broken glasses. The Insurer performed a survey and he put in place a documented system where the glass collectors and toilet attendents recorded each time they performed a sweep of the club or toilet at regular intervals. This along with placing no slip attachments to any stairs along with lighting on each step was enough to stop virtually every single claim of this type. As soon as he received a claim letter from a no win no fee solicitor, he sent them a copy of the insurers risk assesement and the for the night of the glass collectors sweeps of the club. This stopped the solicitors in their tracks.
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So having any form of insurance is pointless for an careful person - if they weren't negligent they can't be held liable for their actions in any other way ?
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I have to disagree with the McDonald's example, I severely injured my back after slipping on spilled ice cream in a Poundland store a few years ago, went through my Trade Union solicitors who successfully proved that a documented maintainance record meant next to nothing as it was said that a spillage on a shop floor should be obvious to staff who traverse the aisles every few minutes. I was awarded £2500.
Don't know if this transfers into insurance regarding the lorry/c4 or roof tile/car scenario. I would think the roof tile in the wind would be argued as 'an act of god' by the insurance company which a lot of insurance companies refuse to cover any 3rd party only the householder if that.
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A spillage on a shop floor is different to a "restaurant" toilet, the staff of a shop would be moving around a shop so could reasonably be expected to notice a spillage.
A restaurant toilet would not be expected to be passed through by staff on a frequent basis. By checking the toilets at regular intervals AND recording it they have done all they reasonably can to prevent an accident.
A court applies a whats reasonable test, it's not reasonable for a fast food restaurant to post a member of staff in the toilets permanently. What is reasonable to try and prevent accidents through slips and trips is to check and clean the toilets at regular intervals eg every hour. This is sufficient in law to prevent most slip claims.
Your claim is different to a Mcdonalds toilet.
Try ringing a no win no fee solicitor and say you have slipped in a Mcdonalds toilet, they will not be keen
The roof tile example would be regarded as an Act of God or force majeure if the home owner had done everything reasonable to prevent the claim eg maintenained and checked the roof at reasonable periods. If the home owned had neglected maintaining the roof then they would normally be deemed negligent and liable for the damage.
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Liability and negligence ,
The english law of tort states states specifically that a claimant or defendant does not have to prove negligence when making a claim .A claimant only has to prove that the actions of an individual or company caused them injury or loss .
Extract below
Tort law
(In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible.)
Tort is civil law ,the word is generally meant to describe an injury not just to a person but also to his property.
Strict liability ,is the description in tort law that says a defendant is liable even though he can prove negligence was not an issue .
It seems that this would apply in the op,s case .
Definetly worth spending £200 in the small Claims court to find out .?
Tony g
Edited by tony g on 20/08/2012 at 00:09
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Do you have a reference for the above ?
I'm guessing you've summarised the above from Wiki which if you have it American biased, if you did you missed this line from it
"Under English and Welsh law, in cases where tortious liability is strict, the defendant will often be liable only for the reasonably foreseeableconsequences of his or her act or omission"
http://en.wikipedia.org/wiki/Strict_liability
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(Rylands v. Fletcher, the defendant is liable notwithstanding that he has taken reasonable care, )
Landmark English law case from the late 1800s.I understand notwithstanding to mean ,even though he has taken reasonable care .
As a basic principle doesn't it seem reasonable that if you suffer damage to your property ,caused by a third party ,the third party should pay for the damage ,whether they were negligent or not .
The op is looking at a substantial loss through no fault of his own ,the damage was clearly caused by the third party ,they should pay .
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(Rylands v. Fletcher, the defendant is liable notwithstanding that he has taken reasonable care, ) Landmark English law case from the late 1800s.I understand notwithstanding to mean ,even though he has taken reasonable care . As a basic principle doesn't it seem reasonable that if you suffer damage to your property ,caused by a third party ,the third party should pay for the damage ,whether they were negligent or not . The op is looking at a substantial loss through no fault of his own ,the damage was clearly caused by the third party ,they should pay .
An interesting case but not relevant here. As I said earlier strict liability does not apply to road claims.
For example, if you parked your car on the road (entirely legally) and as I was passing in my car I suffered a heart attack and crashed into it you would only be able to claim off my insurance if you could show that I was negligent - either through a previous history of heart attacks or if I had been feeling unwell before hand and should have foreseen that it was not safe for me to drive.
There would be no debate that the damage to your property was caused by me but without demonstrating negligence you would not be able to claim.
If you had comprehensive insurance you could make a claim on your own policy (happened to a previous poster on here when there car was hit by someone who passed out at the wheel).If you were insured third party only you would not be able to claim off anyone.
http://www.honestjohn.co.uk/forum/post/index.htm?t=88444#m999700
Going back to the roof slate example there was again a thread on here where the poster was unable to claim for the damage to their car from a fallen roof slate.
http://www.honestjohn.co.uk/forum/post/index.htm?t=92942#m1029411
Edited by rjr on 20/08/2012 at 15:09
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It seems that this would apply in the op,s case . Definetly worth spending £200 in the small Claims court to find out .? Tony g
Strict liability does not apply in motor claims in the UK - the onus is on the claimant to show that the other party was negligent.
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Strict liability does not apply in motor claims in the UK - the onus is on the claimant to show that the other party was negligent.
How are motor claims any different, in principle, to other types of claim?
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Very simply they are seen as not serious enough to justify strict liability. Therefore they are judged on ordinary fault based liability so negilgence must be shown.
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Thank you for above on tort law and previous message as previously cited. I think the samll claims court costs are £120 for up to £5000 unless the rates quoted on the internet are out of date. I am the owner of the Citroen C4 and writer of the original message. You suggested other ways of getting car repaired - so got on to breakers as you suggested and found that I could get total parts, bumper, wing and lamp for a total of £321 including delivery. My original quote from car body shop was for £1500 (and even that I was told by insurers was very cheap) - so a huge saving there - but who was going to fix it? So went this morning to another body workshop, explained position and asked if would install seconhand parts. Enlgineer ooked at it and as I thought really minimal damage, yes some clips were ripped off the headlight and wing, but not all and he could make clips to replace - cost £100 - maximum £200 if I wanted some of the scratch marks( made by exploding tyre) painted out. So thanks for yur advice.
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Well done ,a good result ,however I still find it hard to believe that negligence has to be the criteria for claiming from a third party .
After , all it's clear in this case who caused the damage and who suffered the loss.
Does the forum know of any cases involving motor vehicles where this peice of legislation has been challenged in court ,
Alternatively do we have examples of a case where this decision has been applied .
Tony g
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It is not unknown for lorry tyres to explode, but the difficulty is proving why, unless the tyre remains are examined. Number of causes: kerbing, under inflation, over-loading, damaged sidewalls, fault during remoulding process etc etc. The routine check list will not uncover errors due to operator error or misuse. One tack might be to see if theier system had a method of auditing tyre failures. Lack of such a system might be taken to mean they did not try to learn from events, thus NOT doing all that is reasonable, given that a tyre explosion has the potential for fatalities. As they are quite expensive, the truck owner may have had it examined. This could be disclosable I suppose. In the circumstances here the more realistic repair costs make a trip to the small claims court unviable?
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I have used the following procedure several times when I needed to convince whoever it was that I meant business.
Go to http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf
And fill in this form with your claim, keep it brief and keep it sensible.
Print it off and send it to the person who you are trying to get payment from with an accompanying letter saying that if they do not pay whatever is due, you will send the claim form to the court and start a claim.
It works much better than a letter and has never failed to get satisfaction for me.
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