- March 1, 2021
- By Adam Dyl
- 0 comments
High Court approval for brain injured man
I secured High Court approval last week of a liability compromise for a client who suffered terrible brain injuries following a cycling accident. Where liability in a valuable case is contested, the court will often order a “split trial”, so that the question of fault can be determined as a preliminary issue. This allows for the issue to be dealt with more swiftly and at less cost.
The accident took place close to midnight. My client had been out with friends for his birthday. He had been drinking, found a nearby bike, and cycled into the road. As he crossed over to the other side, he failed to look. He then lost his balance but kept hold of the bike with one hand before continuing along the kerb. As a motorist approached from behind to overtake, my client turned across his path in the direction he came and collided with the car.
Liability was firmly denied. Black box data from the vehicle showed that it was not speeding before or at the time of the collision and the insurers sought to argue that my client has placed himself in harm’s way by being intoxicated and cycling in a reckless fashion. In addition, my client was not wearing a helmet. A split trial was sought in the circumstances and ordered by the court.
The police did little forensic investigation and concluded that my client was primarily responsible for failing to pay due care and attention. The motorist was considered partly responsible for failing to judge the path of the cyclist. There were no independent witnesses. Those who did provide an account to the police were passengers in the car who said that my client gave the driver no opportunity to stop.
The local authority released street CCTV of the accident locus which confirmed that the driver did not brake until after the collision. Further it confirmed that as my client cycled into the path of the car, he did so on or in the vicinity of a crossing. Reconstruction evidence confirmed that my client remained in the driver’s line of sight for some distance prior to the collision. In the circumstances it was my client’s case that the driver ought to have slowed and not attempted to overtake as he did.
Based on the police evidence alone, there was a significant risk of my client’s case being lost but the CCTV helped my client to some extent. Nonetheless the liability issue was contested and only compromised shortly before trial.
Ultimately my client was never going to win his claim outright. Rather the issue was limiting the extent of his own contributory negligence which on the advice of our barrister could have exceeded 75%. Negotiations were exhausted at two thirds: one third apportionment in my client’s favour which the barrister considered to be a very acceptable compromise. This means that my client will receive two thirds of the compensation to which he would have been entitled if the collision had been wholly the driver’s fault.
My client suffered a severe traumatic brain injury. He is significantly under-rehabilitated and has ongoing problems including continuing headaches, personality change, vestibular difficulties, and loss of smell. The medical experts have identified a future risk of epilepsy attributed to the accident and that my client lacks capacity.
The court’s approval of the liability settlement in this case allowed for judgment to be entered in his favour and interim damages will be paid for his treatment and benefit generally. Determination of liability at this stage provides certainty for my client, and his family, that he will recover the damages he is entitled to.
*Disclaimer: The information on the Anthony Gold 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. It is provided without any representations or warranties, express or implied.*
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