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3 July 2020 | Comment | Article by Ciaran McCabe

Successful complex brain injury settlement while in lockdown

Just days before the Government announced a complete lockdown across the UK, and with a trial due to start April 2020, we successfully negotiated and resolved liability in our client’s favour in a complex severe brain injury claim.

The settlement was subsequently approved by the court remotely, via a telephone conference. At the approval hearing, the Judge stated that “the case contained complex detailed liability issues”. Settling this claim would have been challenging at the best of times, but with lockdown looming, there was an added layer of complexity.

The tragic road traffic accident had occurred over 20 years ago, resulting in a young pedestrian child being left with a severe brain injury following a collision with a motorbike. As a result, the young person will never live independently and will require ongoing care and support.

The claim was first transferred to Hugh James in early 2018 and, at that point in time, very little work had been undertaken on it by the previous firm of solicitors and liability was strongly denied. 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 was that the motorbike was not insured and was not required to have insurance – because it was an off-road bike and not a motor vehicle within the meaning of section 185 of the Road Traffic Act 1988.

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

The defendant did not accept that the accident location was an adopted highway, or that the motorbike was a motor vehicle within the meaning of section 185 of the Road Traffic Act 1988.

The claimant’s position throughout 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, the Supreme Court had rejected an application by MIB, in February 2020, for permission to appeal Motor Insurers’ Bureau and Others and 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.

Therefore, on the basis of our case, the two key elements of the defence had to fall away at trial. This then enabled a settlement to be achieved.

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

This case illustrates the importance of instructing specialist brain injury litigation lawyers from the beginning. 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 what was a complex liability claim and also obtain substantial funding for private rehabilitation. A multi-million pound settlement will now follow, which will offer the claimant financial compensation for the injuries sustained, enabling the claimant to enjoy life with the best private care package and without financial worry.

It also illustrates Hugh James’ strength of expertise in this complex area of 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.

Finally, there are very strong arguments that the UK government should seek to amend the Road Traffic Act 1988 following this claim and MIB v Lewis. It should be enshrined in statute that compulsory insurance should be required for 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. This stance needs to be urgently examined by the UK government, as this ruling could be lost when we leave the EU.

This positive change has been won in hard-fought battles for those who have suffered life changing injuries and it should not be lost.

Author bio

Ciaran McCabe is a Partner and joint head of the National Serious Injury Department. The department was awarded Claimant Catastrophic Injury Team of the year at the PI Awards in 2021. He has specialised for over 20 years in assisting both adults and children, through England and Wales, who have sustained life changing injuries to the brain, spinal cord and limb loss.

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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