Multi-million settlement secured for cyclist with brain injury

Case background

Our client, whose case was concluded by our personal injury team, was cycling around a roundabout on a bright, sunny day, when the defendant driver negligently entered the roundabout and collided with him, causing him to be knocked from his bicycle and hit his head on the ground with great force.

It was clear from the outset, given the seriousness of our client’s injuries, that this was going to be a case of substantial value and a full legal team was quickly put in place for our client with Stuart McKechnie KC and Nicola Greaney being instructed from an early stage.

Contributory to negligence and failure to wear a helmet

Nick’s client was not wearing a cycle helmet and, whilst there is no legal requirement so to do, the insurers alleged that he had negligently contributed to his accident because of the absence of such protection. The insurers also made additional allegations of contributory negligence, all of which we considered spurious.

Split trial

Although primary liability was admitted early on, the allegations of contributory negligence were heavily contested. So much so, we decided to ask the court to order a split trial on the issue of contributory negligence, to run concurrently with directions to a quantum trial. This was resisted by the insurers at an early CMC but the court found for the claimant, with the judge commenting that a split trial would “involve the resolution of an issue which may unlock a gateway to other resolutions especially potential settlement of this matter.”

We obtained expert evidence from a consultant neuro-surgeon and a cycle helmet expert / engineer. This evidence highlighted that wearing a helmet would have made no difference to the outcome of our client’s injuries. This was disputed by the insurers’ experts and the matter was listed for a preliminary liability trial in 2021. Just a few weeks before that trial was due to take place, the insurers withdrew their allegations, resulting in 100% liability on the part of the negligent driver.

Interim payments

An early voluntary interim payment was secured to enable a specialist brain injury case manager to be instructed who put together a multi-disciplinary team to support our client. His catastrophic brain injury caused him to suffer extremely severe cognitive, communicative and neuro-behavioural difficulties, with his treating team being firmly of the view that he required 2 to 1 support during the day, with a support worker on duty at night as well.

Unusually, for a number of case specific reasons, our client’s family wanted to provide the majority of the support for him and the case manager put together a team comprising a number of support workers some of whom were close family members. This was initially accepted as appropriate by the insurers but their position shifted as the case proceeded and it was argued that this sort of support regime was detrimental to our client.

Eventually, Nick and the team were able to secure expert and lay evidence to satisfy the insurers that, whilst unusual, in the particular circumstances of this case family input was understandable and appropriate and, moreover, they should not be paid at gratuitous rates.

As well as taking a confrontational stance on liability, the insurers in this case also reached a stage where they declined to provide any further interim payments to enable the claimant to continue with the care regime in place. This stance was largely motivated by the insurers’ care expert, who asserted that one support worker was appropriate at all times during the day and night, despite the unpredictability of our client’s behavioural issues.

With funds dwindling, our client had no choice but to apply to the court for a substantial interim payment to safeguard his care package. This led to a very hard fought contested application; taking almost 2 days to hear the evidence and arguments. At the end of this hearing, the judge ruled in favour of our client, awarding substantial interim funds to ensure our client’s support team could remain in place as the case progressed towards a trial. Masterful advocacy from Stuart McKechnie KC, one of the leading PI silks in the country, was critical to the success of this crucial application.

Issues between parties and settlement

The issue of 2:1 v 1:1 care continued to be fiercely fought on both sides. So contentious was the issue that even when the parties came together for a JSM, they could find no common ground. Whilst the balance of the claim was settled at the JSM, for a substantial lump sum, the issue of future care and case management remained very much alive.

An initial approval hearing dealing with all items save for future care and case management was ably conducted by senior counsel, Nicola Greaney of 39 Essex Chambers. This case was hugely document heavy and Nicola provided vital support throughout the case and offered meticulous advice and assistance at various significant stages.

As the quantum trial approached (to deal with future care and case management), the insurers made a Part 36 offer at a much more competitive level than offers made at the JSM. This was considered carefully by our client and his legal team but the level of the offer was felt to be insufficient and rejected. A counter proposal, which allowed for 2:1 support to continue for the rest of our client’s life (together with associated case management) was put forward in response and accepted by the defendant shortly before the offer was due to expire. The settlement based on this offer was then approved by the High Court.

Anonymity

The settlement and the case is protected by an anonymity order, which was in force from the date of the first CMC hearing, and will remain in place indefinitely. The settlement figure is confidential but comprises a multi-million lump sum and a very substantial periodical payment order together with provisional damages and a variable PPO in relation to post traumatic epilepsy.

Testimonial from client’s litigation friend

After approval, our client’s Litigation friend was kind enough to comment that: “we have seen how much you have all fought for us against difficult defendants and we are grateful. Your work to understand our situation and the complexities of it have meant so much to us and backing us up when you’ve been pressured otherwise we realise cannot have been easy but has been so appreciated.”

Take-away points

The importance of this case cannot be underestimated for our client. Had it not been for the family’s unswerving determination and his legal team’s commitment to ensuring our client was adequately compensated, the care package, which is working so well, would have been at risk.

Whilst collaboration and negotiation are often useful tools in litigation, when critical issues cannot be resolved in this way lawyers should be prepared to avail themselves of the judiciary.

If you've been involved a road traffic accident which has resulted in injury and would like to speak to one of our specialists, call us today for a free, confidential consultation on 0330 041 5869, or contact us online. Our experts accept personal injury claims under a No Win No Fee agreement. This means that if you lose your case, you won’t have to pay any legal costs, allowing you to bring a claim at no financial risk.