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30 October 2022 | Case Study | Article by Hugh Potter

Damages secured in complex claim brought against the government

By Order of the Honourable Mr Justice Fordham on Thursday 25th March there was approval of a confidential settlement in our client’s – Katie Johnson – favour of her claim brought against the Government.

Katie’s claim was complex. It arose out of a road traffic accident as long as 16th July 1997 when she was aged only 7 years old. She was playing on the paved area outside her home in a large estate in Salford when she was ridden into by David Kershaw who was riding an off road scrambler. He did not have insurance. Unhappily she sustained a severe brain injury and serious orthopaedic injuries which have had long term effect. Hugh Potter – Partner in the Serious Injury team here at Hugh James – acted for her then and commenced court proceedings against Mr Kershaw (who took no active part in the proceedings) and the Motor Insurers Bureau which accepted Kershaw’s negligent riding but resisted payment out of the Uninsured Scheme on the alternative bases that the accident had not happened on a ‘road’ and the scrambler was not a ‘motor vehicle’ each as defined within the Road Traffic Act 1988 and so was not covered by the Scheme.

At that time the MIB customarily raised such Defences to indemnify. Counsel’s Advice was obtained and ultimately in 2001 the court approved a liability apportionment of 50/50. In 2009 there was a settlement of £2.2 million gross and so Katie received damages of £1.1 million net.

In September 2014 in a case often referred to as Vnuk, the European Court effectively extended compulsory road insurance under the Motor Insurance Directives (which predated Katie’s accident). A clear implication of this decision for Katie was that properly construed the Motor Insurance Directives would have covered the circumstances of her accident and so raised the argument that the Government’s failure to implement them properly had caused her loss of £1.1 million (ie the ‘missing’ 50%).

Hugh Potter and Jerry Smith of Hugh James acted for her. Court proceedings were brought against the Government in 2019 when it became clear that the Government would not consider any compromise. On Katie’s behalf £1.1 million was claimed plus interest so a total of a little over £1.5 million. The Government resisted the claim on a number of different bases including that she had suffered no loss as she had already received more than the minimum compulsory insurance cover of Eu 350,000. This specific matter was to be heard as a preliminary issue by the court on 25th March but before it did so the MIB applied and was joined as an Interested Party and in terms confidential to the MIB and Katie, paid compensation of an undisclosed amount and costs.

Katie is delighted that her 24 year wait for full compensation is finally over.

The Claimant’s brilliant barristers were Winston Hunter QC of 12 Byrom Street Chambers Manchester and Mathew Sellwood of Devereux Chambers London.

Please find the full Judgment here.

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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