23 February 2021 | Comment | Article by Ciaran McCabe

Catastrophically injured children and adults will no longer receive damages due to British Government decision

Grant Shapps, the Secretary of State for Transport has recently confirmed via the government website that the government intends to “Bin the EU’s “Vnuk” motor insurance law “.

This means that once British legislation is amended, compulsory motor insurance will not extend to either (a) various non-standard motor vehicles or (b) the use of motor vehicles on private land. Non-standard motor vehicles which can include types of scrambler and quad bikes which are often illegally ridden on the public highway and private land without insurance.

Ciaran McCabe, Catastrophic Injury Partner at Hugh James commented: 

“I fundamentally reject Grant Shapps unfortunate comments, when he states that, 'this over-the-top law would do only one thing – hit the pockets of hard-working people up and down the country with an unnecessary hike in their car insurance'. It is a simple fact that Grant Shapps is wrong, and he should urgently reconsider matters. His decision will sadly ensure that all people injured by non-standard motor vehicles or by a motor vehicle on private land will not be entitled to receive compensation, this will be especially detrimental to those who have sustained life changing injuries such as to the brain and spinal cord injury. These individuals will now be dependent upon the state for their care and welfare rather than receiving compensation via the MIB (funded by the insurers) as they rightly should. It’s a sad reflection, especially in current times, that the insurance industry as one has welcomed this decision as a victory. It's far from a victory for the catastrophically injured. This decision puts even more pressure on the NHS and public purse. The decision is also said to protect the multi-billion-pound UK motor sport sector from litigation relating to race collisions, this is nonsense and is simply a smokescreen-to save the insurance industry billions of pounds.”

In summer 2020, a team led by Ciaran McCabe of Hugh James succeeded in a claim implementing Vnuk in a claim where we were acting for a severely brain injured young girl. As a consequence, she will now receive an award to enable the total costs of her life time care and rehabilitation as well as compensating her for her inability to work. This will run into millions of pounds. However, the effect of the proposed amendment in the law is that children like her who sustain similar accidents will receive no compensation whatsoever.

The accident dated back over 20 years ago when, in a tragic road traffic accident, a young pedestrian child was severely brain injured in a collision with an adapted motorbike. The child can never live independently and requires care and support for the rest of their life. 

The claim was first transferred to Hugh James in early 2018 and, at that point in time, very little work had been undertaken on the claim by the previous firm of solicitors and liability was strongly denied by the defendants. We had to carry out an intense amount of work in a very short period of time to ensure that the claim could be rescued and had a good chance of success.

The defence case was that the motorbike was not insured and was not required to have insurance. They argued it was an off road bike and not a motor vehicle within the meaning of section 185 of the Road Traffic Act 1988 therefore requiring no insurance.

In addition, the defendants case was that the accident took place on private land, therefore limited the liability of the Motor Insurers Bureau (MIB) liability under the Road Traffic Act 1988 because this act only requires compulsory insurance to cover collisions “on a road or other public places”.

The defendant’s did not accept that the accident location was an adopted highway on the basis of the highway evidence we had disclosed. It also had not accepted that the motorbike was a motor vehicle within the meaning of section 185 of the Road Traffic Act 1988.

The claimant’s position throughout the claim remained that, in accordance with previous high court decisions, the motorbike fell within the definition of a motor vehicle within the relevant section of the Road Traffic Act 1988. In addition, and very importantly for this claim in February 2020, the Supreme Court had rejected an application by MIB for permission to appeal Motor Insurers’ Bureau v Lewis [2019] EWCA Civ. 909 which meant that the MIB was liable to indemnify a claimant in respect of injury sustained when he was struck by an uninsured vehicle on private land.  This decision followed the CJEU decision in Vnuk (2014), from when it could not be doubted that the 2009 Motor Insurance Directive required insurance cover to be in place for the use of vehicles on private land.

Therefore on the basis of our case, the two key elements of the defence had to fall away at trial and this enabled a settlement of the liability aspect of the claim to be brought about.

As a consequence of this settlement the claimant, now a young person, can expect a multi-million pound settlement once medical evidence has been finalised and has already received a substantial interim payment to fund a case manager and private rehabilitation.

The liability settlement and interim payment were approved while in lockdown remotely by a High Court Judge at Cardiff District Registry.  The settlement was brought about following a long hard fought piece of litigation of which the lockdown was the final hurdle.

However, this successful claim also illustrates the importance of instructing a firm from the beginning who are specialists in brain injury litigation. In the decade before I inherited this claim it had sadly not progressed. When I took it over, we were able to reach a settlement within 2 years in a complex liability claim and obtain substantial funding for private rehabilitation. A multi-million pound settlement will now follow, which will offer the claimant financial compensation for the injuries they sustained and enable them to enjoy the rest of their life with the best private care package and without financial worry.

It also illustrates that Hugh James understands the law. We are willing to stand by our professional opinion and apply it for our client’s benefit - even in the most complex claims.

In the summer of 2020, Ciaran McCabe said on settling the claim that there were very strong arguments that the UK government should seek to amend the Road Traffic 1988 following this claim and MIB v Lewis, to enshrine in statute that compulsory insurance should be required by vehicles on both public and private land. The Court of Appeal judgment in MIB v Lewis applied an EU directive which has not yet been adopted in legislation by the UK government. Very sadly this prediction is now reality and the positive change brought about by Vnuk and the MIB v Lewis, won after hard fought battles for those who have suffered life changing injuries may well be lost.

Ciaran McCabe was assisted by Ellice Harding in this claim.

References: Successful complex brain injury settlement while in lockdown | Hugh James


Author bio

Ciaran specialises in assisting those who have suffered life changing injuries to the brain (adults and children) and spinal cord. He has also acted for those who have suffered amputation, severe orthopaedic and brachial plexus injuries.

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Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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