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Clark: Road Traffic Accident

Clark's Story

Young man seriously injured whilst sat as a front seat passenger in a friends car.

Clark: Road Traffic Accident
Clark was the front seat passenger in a motor car being driven by the Defendant. The owner of the vehicle, was one of two rear seat passengers.

The Claim involved issues of liability and contributory negligence arising in respect of injuries sustained in a road traffic accident.

In the early hours of the morning the Defendant lost control of the car, collided into another car and crashed it into a wall and some railings.

As a result of the accident, Clark sustained serious spinal injuries. The injury was a severe injury to the spinal cord at C5. Mr Gardner, spinal expert, considered that the Claimant had made a moderately good recovery but had ongoing problems which were likely to be permanent. He also had had a brain injury however this did not seem to have resulted in permanent problems.

The Defendant was not insured to drive his brother’s car. The Defendant Insurers confirmed that a policy was created in respect of the vehicle but had been cancelled about half an hour later. Proceedings were issued and the MIB were added to the claim.

The liability of the MIB under the Uninsured Drivers’ Agreement will be passed to an “Article 75 insurer” if such an insurer exists. An Article 75 insurer is one who was providing motor insurance in respect of the offending vehicle at the time of the accident or, in the case of a normal 12 month renewable policy, up to 15 days before the accident, notwithstanding that the insurers did not cover the offending user and are not “Road Traffic Act Insurers” under section 151. In the circumstances of this case, it was likely that Article 75 would not be engaged.

In most circumstances, the passenger in a vehicle of which the driver loses control, has a considerable advantage in any claim for compensation. In this case, however, there were a number of complicating features in relation to insurance and alcohol.

First of all, clause 6.1 of the 1990 Agreement provides a number of exceptions to the MIB’s obligation to satisfy compensation claims. One such category of claim is that “which is made in respect of a relevant liability by a claimant who, at the time of the use giving rise to the relevant liability, was voluntarily allowing himself to be carried in the vehicle and, either before the commencement of his journey in the vehicle or after such commencement, if he could reasonably be expected to have alighted from it, knew or ought to have known that…the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the 1988 Act.”

Clause 3.6 goes on to state:

The burden of proving that the claimant knew or ought to have known of any matter set out in paragraph 1(e) shall be on the MIB but, in the absence of evidence to the contrary, proof by MIB of any of the following matters shall be taken as proof of the claimant’s knowledge of the matters set out in paragraph 1(e)(ii)… (d) that the claimant knew that the user of the vehicle was neither its owner nor registered keeper nor an employee of the owner or registered keeper, nor the owner or registered keeper of any other vehicle.”

In this case, however, the Claimant believed that the driver was the owner of a family 7-seater vehicle. The burden would, therefore, fall on the MIB to demonstrate either knowledge or a reckless disregard on the part of the Claimant as to the insurance status of the driver. On the evidence there was no direct indication that the Claimant knew that the driver was uninsured or that he was reckless in this regard.

Stinton [1993] PIQR P135). Mere knowledge that the driver has taken some alcohol is not sufficient to establish contributory negligence. In Brignall v Kelly [17 May 1994, unreported], McCowan L.J. observed:

For my part, I refuse to accept the proposition that if a man in a public house observes a man drink one pint of lager and give no sign of intoxication, he cannot accept a lift from him without interrogating him as to exactly how much he has had to drink.

In this case the Clark’s evidence suggested that he was not put on notice that the driver had too much to drink. There was no direct evidence of what the driver had to drink. The Defendant beat a hasty retreat from the scene of the accident and subsequently made a “no comment” response to all of the questions asked by the police during the course of interview.

A further allegation made against Clark was that he failed to wear his seatbelt. Generally speaking, where injuries could have been avoided by wearing a seatbelt, a deduction of 25% will be made from the damages to be awarded. However, a report was been obtained from Mr Parkin which concluded that Clark was probably wearing his seatbelt. In any event, because the impact was to the side, the wearing of a seatbelt offered little protection. If Mr Parkin’s evidence were to be accepted at trial (the Defendant intended to instruct Mr Rattenbury on this issue) then no deduction will fall to be made.

Court proceedings were issued but the Defendants finally capitulated a few days before the trial date set to be heard in the Royal Courts of Justice in London.

The Claimant obtained expert evidence from the following experts:

  1. A Leading Spinal Expert
  2. Care Expert
  3. Architect
  4. Housing Expert
  5. Neurophysiotherapist
  6. Case Manager

The Claimant offered to settle his claim for damages for future care, assistance and case management for annual periodical payments of £120,000 per annum until he attained the age of 50 and £175,000 per annum thereafter. Such periodical payments were to continue during the lifetime of the Claimant with no minimum number of periodical payments to be paid but with the periodical payments to cease on the Claimant’s death. Each periodical payment to be recalculated each year before payment by reference to the Standard Occupational Classification (SOC) 6115 at the 85th percentile in the Annual Survey of Hours and Earnings (ASHE) published by the ONS.

During the life of the claim the Claimant secured interim payments and also received a substantial payments to cover the cost of purchasing and adapting his home.

A number of Joint Settlement meetings took place but no agreement could be reached until finally Mr Clark was awarded a sum that was capitalised at £6.7 million pounds.

We continue to advise the client and his funds are in a Personal Injury Trust to ensure he has enough funds to support himself for the remainder of his life.