Settlement achieved: 100% liability finding in favour of our client
Case handler: Various members of our specialist team
Key elements of our client’s case
In this case, our client, who was a child, was crossing the road at a pedestrian crossing, close to a supermarket, when the Defendant collided with our client resulting in them sustaining life changing injuries including a traumatic brain injury, multiple internal injuries and fractures.
Where our specialist serious injury experience really added value to our client’s situation
Within less than a week post-accident, we had sent a formal Letter of Claim to the Defendant Insurer (Defendant) inviting them to agree to an Immediate Needs Assessment to address our client’s rehabilitation needs. Very shortly thereafter, we invited the Defendant to agree to an interim payment which they did, albeit, they only paid a modest four figure sum.
A few weeks after the accident, the Defendant confirmed that liability for the accident was in dispute.
Upon receipt of the Immediate Needs Assessment report, we requested a further substantial interim payment to fund the recommended medical treatment.
Full medical and school records were obtained and disclosed to the Defendant and a further interim payment requested.
In light of the ongoing dispute on liability, we requested the police report and obtained CCTV footage and photographs taken by the police. We then arranged for a meeting with a barrister to consider the subject of liability where it was recommended that a report be obtained from an expert that provide analysis, enhancement and interpretation of CCTV images.
We then prepared formal letters of instruction to a Consultant Psychologist and Orthopaedic Surgeon along with a request to the relevant city council for traffic light sequence information and instructed an expert in the field of Collision Investigation.
After a further conference with the barrister and the expert on CCTV imagery, the barrister prepared Particulars of Claim and a preliminary Schedule of Loss in order that we could issue legal proceedings to progress the liability element of our client’s claim.
The Defendant filed and served their Acknowledgment of Service indicating their intention to defend the whole of our client’s claim. Some time later, after an agreement to allow the Defendant more time to file their defence, the Defendant filed their formal written defence suggesting that their policyholder (the actual Defendant) drove across the junction when the traffic lights were green in his favour and that it was our client who was to blame as he ran from the vehicle’s near side and across the road into the path of the Defendant’s vehicle. We forwarded the Defence to our barrister for consideration and on the same day invited the Defendant to address the issue of liability by way of a split trial.
Following the completion of various procedural matters for the Court process, the Court ordered that liability be tried as a preliminary issue and directions were issued to address how the matter would proceed.
The Collision Investigation Report was then received and carefully considered. The parties exchanged witness evidence and after consideration of the Defendant’s witness evidence, we noted that the Defendant conceded that he did not brake until after striking our client and therefore invited the Defendant to admit primary liability. The Defendant’s witness evidence was forwarded to our barrister and the liability experts for their consideration and a conference later took place with our barrister to analyse the issue of liability forensically.
We wrote to the Defendant expressing our view that the interim payments made to that date were insufficient to meet our client’s needs and that it was our intention to make an application to the Court for a substantial six figure sum. We also invited the Defendant to agree an expedited timetable for the liability trial. The Defendant responded the following day, advising that they were in a position to release an interim payment for a modest five figure sum but were not able to agree the six figure sum as requested. However, they confirmed they would take instructions on paying more.
As indicated to the Defendant, we then filed an application with the Court for the six figure interim payment and for an expedited trial on liability. Further discussions later took place with the Defendant ahead of the application hearing where we were able to agree terms and the court approved the parties agreement to a further substantial interim payment along with the proposed timetable to reach the liability trial. The parties agreed that they would meet for a Joint Settlement Meeting on an agreed date to explore a possible settlement of the liability element.
The Defendant later flagged a point of concern with regards to liability, in that contributory negligence would attach to our client because they had separated from the group they were with and was therefore acting independently at the time of the collision . The Defendant also advised that they would not have any expert evidence to serve ahead of the Joint Settlement Meeting.
Reaching settlement
As agreed, the Joint Settlement Meeting then took place to address the issue of liability. Unfortunately, the parties were unable to reach agreement and subsequently the Defendant made an offer to settle liability on a 90/10% basis in our client’s favour. We recommended that our client reject this proposal and made a counter offer to settle liability on a 97.5/2.5% basis in our client’s favour. This offer was later rejected by the Defendant.
Our leading barrister then requested a pre-trial conference with the liability experts which took place and we then completed the remaining procedural matters prior to the liability trial.
In an effort to avoid the costs of Trial, we made an offer to settle liability on a 92.5/7.5% basis in our client’s favour which was rejected by the Defendant the following day.
The formal liability trial therefore proceeded and after a five week period of deliberation, the Court handed down their judgment and found that no liability attached to our client at all and that they would therefore receive 100% of their damages.
This case demonstrates perfectly how important it is to instruct highly specialised serious injury lawyers who have a track record of success in extremely difficult and technical liability cases
If you or someone you know would like to speak to our serious injury specialist about a pedestrian accident, please contact us today.
