Is it lawful for carers and others working with someone with a “mental impairment” to help them to access and pay f… https://t.co/AmHLmi8uau
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:
- There had been no negligent driving of the quad bike;
- 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;
- In any event, our client knew that her driver had been drinking and so his ability to drive safely was impaired;
- 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;
- 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.
I am delighted by the outcome and in particular that our client is now able to pay for the rehabilitation and support she needs.
The amount of compensation will be assessed by the Court towards the end of 2021.
The claim was referred to Potter Rees Dolan by Andrew Kirkpatrick of Butterworths Solicitors who were unable to act because of a potential conflict. Mr Kirkpatrick is himself a Brain Injury Solicitor specialist of wide renown.
The Claimant’s Counsel was Marc Willems QC of Cobden House Chambers, 19 Quay Street, Manchester, M3 3HN.