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22 October 2022 | Case Study | Article by Hugh Potter

Court approves agreement to apportion liability 70/30 in our client’s favour

We acted on behalf of L who unhappily sustained a severe brain injury in a road traffic accident and which has had life changing consequences for her. On 31 January 2020, the Court approved an agreement between Parties to apportion liability 70/30 in our client’s favour.

The circumstances of the accident were very unusual. The accident occurred several years ago, when our client was a passenger on an uninsured quad bike which had not been adapted to carry passengers. Our client’s quad bike was one of four which had been driven along public roads. It was common that prior to our client’s accident, the drivers of all four quad bikes had had the opportunity to drink alcohol and it was acknowledged that our client’s driver had drunk at least some alcohol, although it was a matter of dispute how much he had drunk.

In circumstances which were not totally clear, our client fell from the back of her quad bike, sustaining a brain injury. There was no evidence that the quad bike was driven in excess of the speed limit.

As a consequence of her injuries, our client had no recollection of the accident and understood (from the driver of her quad bike) that she had merely fallen or tripped over a kerb. It was not for years afterwards that the full circumstances became apparent.

Proceedings were brought by our client against her driver primarily on the basis of his negligent driving and failure to observe the Road Vehicles (construction and use) Regulations 1986 and in particular, Regulation 100 (1) and (3) and Regulation 100 (2) which imposed upon her driver, an obligation to ensure that the Claimant – as his passenger – was safe and that nothing could fall from his vehicle so as to cause injury whilst it was being used on the highway.

The Claimant pursued the Motor Insurers Bureau (MIB) as Second Defendant, reflecting that the quad bike was uninsured.

The claim was resisted by our client’s driver and the MIB on a number of bases, including:

  1. There had been no negligent driving of the quad bike;
  2. The sole cause of the accident was our client’s failure to comply with the driver’s instruction to sit behind him, facing forwards, instead of which she chose to face backwards;
  3. In any event, our client knew that her driver had been drinking and so his ability to drive safely was impaired;
  4. Our client knew or must have known that the quad bike was uninsured and so dis-entitled to any indemnity under the MIB Uninsured Scheme;
  5. That in any event, the claim was barred under the Limitation Act and that our client’s brain injury had not robbed her of capacity under the Act for the purposes of commencing Court Proceedings.

The agreed liability apportionment of 70/30 reflected Parties’ arguments.

Hugh Potter, Partner in the Serious Injury team here at Hugh James, had conduct of the Claimant’s claim. Hugh comments:

I am delighted by the outcome and in particular that our client is now able to pay for the rehabilitation and support she needs.

Author bio

Hugh Potter is Joint Head of the Manchester Office and Head of the Personal injury team in Manchester. Throughout his career, Hugh has acted on behalf of clients with brain and spinal cord injuries of the utmost severity, as well as having experience handing professional negligence cases, achieving record settlements with a reputation recognised nationally.

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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