A question of fault
Discussion
All,
Looking for some help here.
The situation is that one evening, I walked out of the house to find an Audi A3 (fairly new) parked in my wifes front bumper. Essentially, the other party's car had rolled down the hill with them not in it (whilst they were in the house of the people that they were visiting). Details were exchanged however the other party was careful not to admit liability and "blamed" it on the handbrake now working properly. The car had been left in neutral (this is hard to prove now but I do have a picture of the inside of the car showing the position of the gear stick and handbrake which was on but not very high).
They told me that this had happened to them before recently and she had been arguing with a garage or the lease company (theirs is a company car) or something about getting it fixed (i suppose this is impossible to prove now as all witnesses would be partial one way or the other).
The issue is that my wife's insurance company have come back to her and told her that the other party's insurance co is claiming that if it can be proved that the handbrake failed then "no one is at fault" and therefore my wife will loosse her excess and her no claims bonus.
This does not seem right to me because it was her defective car that rolled into ours. In my view, whether or not she knew the car was defective, she should have left the car in gear in case the handbrake fails and to not do so is negligent in any case. FFS you fail your driving test if you park the car and do not leave it in gear.
Can anyone advise if they are talking out of their collective arses because it seems like my wife's insurance company are being lazy or incompetent or trying to bend her over and ream her dry (and that's my job).
Edited for spelling and to add comedy.
Looking for some help here.
The situation is that one evening, I walked out of the house to find an Audi A3 (fairly new) parked in my wifes front bumper. Essentially, the other party's car had rolled down the hill with them not in it (whilst they were in the house of the people that they were visiting). Details were exchanged however the other party was careful not to admit liability and "blamed" it on the handbrake now working properly. The car had been left in neutral (this is hard to prove now but I do have a picture of the inside of the car showing the position of the gear stick and handbrake which was on but not very high).
They told me that this had happened to them before recently and she had been arguing with a garage or the lease company (theirs is a company car) or something about getting it fixed (i suppose this is impossible to prove now as all witnesses would be partial one way or the other).
The issue is that my wife's insurance company have come back to her and told her that the other party's insurance co is claiming that if it can be proved that the handbrake failed then "no one is at fault" and therefore my wife will loosse her excess and her no claims bonus.
This does not seem right to me because it was her defective car that rolled into ours. In my view, whether or not she knew the car was defective, she should have left the car in gear in case the handbrake fails and to not do so is negligent in any case. FFS you fail your driving test if you park the car and do not leave it in gear.
Can anyone advise if they are talking out of their collective arses because it seems like my wife's insurance company are being lazy or incompetent or trying to bend her over and ream her dry (and that's my job).
Edited for spelling and to add comedy.
Edited by hahithestevieboy on Thursday 24th January 09:59
It's a case of negligence, if the handbrake has failed then they haven't been negligent and can't be liable.
Saying that if they were aware of the issue with the handbrake and haven't rectified it themselves or the lease company that may be an avenue the insurer could look at, slim one though.
Saying that if they were aware of the issue with the handbrake and haven't rectified it themselves or the lease company that may be an avenue the insurer could look at, slim one though.
First there's no way you should be out of pocket for this, whether our wonderful insurance companies see it that way if of course completely different.
IF the 3rd party insurer refuses to meet your costs in full, I would sue the other driver.
It's possible that the other driver has committed some offence by leaving a car with a known fault in a dangerous situation, definately negligent. What if a mother and baby been in the way when the Audi slid down?
Handbrake fully on, in gear, with the wheel turned against the kerb.
IF the 3rd party insurer refuses to meet your costs in full, I would sue the other driver.
It's possible that the other driver has committed some offence by leaving a car with a known fault in a dangerous situation, definately negligent. What if a mother and baby been in the way when the Audi slid down?
Handbrake fully on, in gear, with the wheel turned against the kerb.
If they knew the handbrake was defective then why were they driving it and/or parking it on a hill where it could have rolled and hit someone? They can complain all they want but the chances of proving a 'defective' handbrake is slim to none I reckon. I'd be having a word with your local friendly traffic officer about this, there must be some law broken by parking a car with knowledge of defective brakes (as the A3 driver implies)somewhere where it could hit someone.
OP I think they are deffo at fault.
OP I think they are deffo at fault.
hahithestevieboy said:
I should add that this happened a couple of weeks ago and there was not any snow or ice. I dont think that I will be able to prove that she knew it was defective, but I can probably prove that it was not left in gear.
The garage or lease company will know, maybe some way of contacting them. The evidence is there if you can get hold of it.3Dee said:
you fail your driving test if you park the car and do not leave it in gear
If this is true then it is simple negligence irrespective of whether the handbrake was faulty or not- surely!
This is what I'm getting at - the handbrake failure is irrelivant. I think it even tells you to do this in the highway code. Failure of driving test was certainly the case when I did mine, but I did it in the Isle of Man and they were really arsey about such things.If this is true then it is simple negligence irrespective of whether the handbrake was faulty or not- surely!
hahithestevieboy said:
FFS you fail your driving test if you park the car and do not leave it in gear.
No you don't.However it is certainly best practice to leave the car in gear and wheels turned to the kerb when parking on a hill. I've no idea if that will help your case or not, although pointing that out certainly won't hurt.
From the highway code
252
Parking on hills. If you park on a hill you should
park close to the kerb and apply the handbrake firmly
select a forward gear and turn your steering wheel away from the kerb when facing uphill
select reverse gear and turn your steering wheel towards the kerb when facing downhill
use ‘park’ if your car has an automatic gearbox.
252
Parking on hills. If you park on a hill you should
park close to the kerb and apply the handbrake firmly
select a forward gear and turn your steering wheel away from the kerb when facing uphill
select reverse gear and turn your steering wheel towards the kerb when facing downhill
use ‘park’ if your car has an automatic gearbox.
3Dee said:
you fail your driving test if you park the car and do not leave it in gear
If this is true then it is simple negligence irrespective of whether the handbrake was faulty or not- surely!
You certainly do NOT fail your driving test for not doing this (although it's a very good idea). In fact I don't think it's in the driving test whatsoever.If this is true then it is simple negligence irrespective of whether the handbrake was faulty or not- surely!
(although I always do it for this exact reason - I let the car roll into a position it's happy with in gear and then use the handbrake so if it fails, the car won't move an inch)
hahithestevieboy said:
All,the other party was careful not to admit liability and "blamed" it on the handbrake now working properly.
told her that the other party's insurance co is claiming that if it can be proved that the handbrake failed then "no one is at fault" and therefore my wife will loosse her excess and her no claims bonus.
So they know of the fault beforehand yet still left it on a hill not in gear. Sounds like negligence on their part to me.told her that the other party's insurance co is claiming that if it can be proved that the handbrake failed then "no one is at fault" and therefore my wife will loosse her excess and her no claims bonus.
Surely it is down to the other parties insurance to prove that it failed as it is their clients car that rolled in to yours? How can it be down to you to prove it failed? If they are saying it didn't fail then surely it would still be their clients fault for not putting the handbrake on properly?
The facts (if I have interpreted them right):
1. The 3rd party admit they knew that the handbrake was faulty BEFORE the accident
2. The 3rd party's car was parked on an incline, therefore there was an obvious potential for the car to roll forward if not securely prevented from doing so.
3. No other mentioned action appeared to be taken to prevent the car from moving other than the handbrake being engaged (if it was done adequately)even though the driver KNEW of the fault.
Ergo - Negligence IMHO.
An analogy although not the same - If you tow a trailer, and the trailer parted company from the towing vehicle and caused damage to another car, then if the police are called, you WOULD be prosecuted for this. It matters not as to how secure you thought the trailer was connected, or that you suspected there was an inherent fault with the connection because you elected to still tow! The accident happened and it was my charge that caused it.
I know - it happened to me many years ago and I learned from it!
If the 3rd party knew of the faulty handbrake (ADMITTED IT APPEARS), then they would reasonably be expected to either not use the car at all until fixed, or that they would take positive steps to mitigate the fault by other actions to ensure that car could NOT roll when parked.
NEGLIGENCE!
Question? - if you knew you had a faulty foot-brake, would you still drive on the highway? You would be a fool if you did!
1. The 3rd party admit they knew that the handbrake was faulty BEFORE the accident
2. The 3rd party's car was parked on an incline, therefore there was an obvious potential for the car to roll forward if not securely prevented from doing so.
3. No other mentioned action appeared to be taken to prevent the car from moving other than the handbrake being engaged (if it was done adequately)even though the driver KNEW of the fault.
Ergo - Negligence IMHO.
An analogy although not the same - If you tow a trailer, and the trailer parted company from the towing vehicle and caused damage to another car, then if the police are called, you WOULD be prosecuted for this. It matters not as to how secure you thought the trailer was connected, or that you suspected there was an inherent fault with the connection because you elected to still tow! The accident happened and it was my charge that caused it.
I know - it happened to me many years ago and I learned from it!
If the 3rd party knew of the faulty handbrake (ADMITTED IT APPEARS), then they would reasonably be expected to either not use the car at all until fixed, or that they would take positive steps to mitigate the fault by other actions to ensure that car could NOT roll when parked.
NEGLIGENCE!
Question? - if you knew you had a faulty foot-brake, would you still drive on the highway? You would be a fool if you did!
3Dee said:
you fail your driving test if you park the car and do not leave it in gear
Not true.http://www.a-class-driving.com/practical-driving-t...
'How to' here: http://www.drivingtesttips.biz/bay-parking.html
That said, there are issues with some cars with parking brakes acting on the rear discs. Apparently as the disc cools & contracts it can effectively release the parking brake. There are a number of threads on the internet dealing with this. My wife's 307 did try to escape down the drive after a rear disc & pad change. Although I initially thought it was just a case of improper parking brake application I did find after taking it for a drive to get the discs hot that it didn't take much extra pushing effort on the drive to get the car to move after leaving it to cool - hence researching the net to see if it was a known issue. She now leaves it in gear, I always have done.
ETA As far as the admission of a known faulty handbrake in this instance, I expect the other insurance company will deny their insured said anything of the kind.
Edited by paintman on Thursday 24th January 11:04
Slight thread hijack...
Whose liability would it be if a car was parked in a sloping car park which was covered in ice and slush and it subsequently slid into the car next to it?
The car park isn't a public car park and the policy is not to grit it. Several other cars had slid out of their spots but they hadn't been left with the wheels pointing at another car. It had not been left in gear.
Whose liability would it be if a car was parked in a sloping car park which was covered in ice and slush and it subsequently slid into the car next to it?
The car park isn't a public car park and the policy is not to grit it. Several other cars had slid out of their spots but they hadn't been left with the wheels pointing at another car. It had not been left in gear.
hahithestevieboy said:
The car had been left in neutral (this is hard to prove now but I do have a picture of the inside of the car showing the position of the gear stick and handbrake which was on but not very high).
It's been proven by the fact that the car rolled into your's.Honestly how thick are people? They suspected there was a problem, yet they still parked on a hill and didn't leave the car in gear or turn the front wheels into the kerb. You say the handbrake wasn't up very far, although I've noticed my daughter's Golf it doesn't come up very high, I wonder if they're aware of the the proper way (which hardly anyone does) of applying a handbrake?
hahithestevieboy said:
They told me that this had happened to them before recently and she had been arguing with a garage or the lease company (theirs is a company car) or something about getting it fixed (i suppose this is impossible to prove now as all witnesses would be partial one way or the other).
Having said the above about people being thick, this is is typical company car driver (I've been one, and been around them, for many years) behaviour. They'll have been willing something to happen so they could say "told you so" to the lease company and garage. They won't care themselves as there are no consequences for them.I can't see Audi holding their hands up - they'd have to recall all affected vehicles. It'll be the usual handbrake not holding on the rear discs issue.
Edited by Deva Link on Thursday 24th January 11:03
14-7 said:
So they know of the fault beforehand yet still left it on a hill not in gear. Sounds like negligence on their part to me.
Surely it is down to the other parties insurance to prove that it failed as it is their clients car that rolled in to yours? How can it be down to you to prove it failed? If they are saying it didn't fail then surely it would still be their clients fault for not putting the handbrake on properly?
Not down to me - the other parties insurance co are trying to prove it so they can get out of paying the claim. Our insurance co seem to be accepting this. I think that I need to find out whether or not the insurance company is the same for both of us because that would explain alot.Surely it is down to the other parties insurance to prove that it failed as it is their clients car that rolled in to yours? How can it be down to you to prove it failed? If they are saying it didn't fail then surely it would still be their clients fault for not putting the handbrake on properly?
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