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Title: Car passenger opened door as I filtered past

Date: 20 March 2013

Question

As I filtered between two lines of stationery traffic a passenger in a car in the outside lane opened a door to exit the vehicle and knocked me off my bike! I have a fractured clavicle and nerve damage to my shoulder. I am seeking compensation though my solicitors but I want the police to prosecute this careless person but they refuse – can their decision be overturned?

Colin Campbell – by e-mail

Answer

The driver of the car is responsible for his or her passengers’ actions and therefore it is the insurer of the car that should be dealing with your civil claim for compensation. It does not surprise me that the police are not willing to prosecute. The burden of proof in criminal cases is higher than that in civil cases and I am at a loss to identify what it is they would charge the passenger with. You would need to establish that the passenger had the intention (mens rea) and guilty act (actus reus) to succeed if a charge could be identified although in some cases recklessness can be enough.

I sincerely doubt that you will be able to convince a criminal court that the passenger deliberately intended to cause you harm and I suspect it will go down as a simple accident, albeit a painful one with on-going repercussions. I suggest you pursue the civil claim and get compensated for your injuries and financial losses.

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