As a firm of lawyers who deal only with claims for personal injury compensation, we actually specialise in serious injury claims with payouts that run in to millions of pounds. If there is one thing that is always a certainty in high value compensation claims, it’s that insurers will do ANYTHING to limit or stop a payout. Their interests of course are to protect their shareholders profits and keep costs down.
But you have to really question the lack of humanity when you hear a story like this one; bearing in mind that insurance is there to cover people for claims. According to sources from the Daily Mail, Churchill are going to appeal a decision finding their policy holder 100% at fault for an accident with a payout estimated to be in the millions. The problem though is the circumstances of the accident, and their argument for the appeal…
Churchill are saying that now brain damaged 16 year old Bethany Probert, who was 13 at the time of the accident when she was hit on a dark country road by a speeding motorist, should have been wearing a high visibility jacket. They are actually suggesting that a 13 year old should know to wear a high visibility jacket on the basis that she rides horses and therefore knows to wear one when out on a horse on the roads.
Now, aside from the fact that she was 13 years old at the time, and therefore below the age of mature responsibility in the eyes of the law, and aside from the fact she has only ever ridden horses in a field and not out on the roads, and aside from the fact she is now brain damaged and will need care for the rest of her life, which of course I imagine has been turned upside down by this traumatic event, the family is now facing further litigation because Churchill want to pass some of the blame on to her.
The Defendant was found by the Judge to be driving at a speed that was excessive in the circumstances; which was said to be 50mph on a dark, unlit bending country road. As a result, according to the report, Bethany has been left with limited walking ability, depression, and a lack of concentration and spatial awareness. She requires specialist equipment, a support worker and an open plan single-storey home. The award will now be delayed as a result of the lawyers acting for Churchill putting in the appeal who say “while we accept that our insured was liable in part for the accident, we are appealing the decision that he was entirely to blame.”
This case is set to test the limits of what might be called acceptable contributory negligence on the part of a child. Contributory negligence is a common argument insurers and Defendant solicitors make in claims, and it simply means that the Claimants payout should be reduced to reflect a percentage of blame on the Claimant themselves. The classic examples are failing to wear a seatbelt in a car accident or a helmet when riding a cycle; the point is that the injured person put themselves at increased risk by failing to take precautions they ought to have known to do.
The big issue in this case of course is that Bethany was 13 at the time of the accident; which is still just a child in the eyes of the law and from a common sense perspective irrelevant of how quickly kids seem to want to grow up nowadays! It might potentially be a fairer argument to say that an adult ought to have known to wear such clothing (although even this if you ask me is not an easy argument to make), but a 13 year old child on the basis of the fact she rides horses in a field? It seems totally unfair if you ask me.
It’s not just an issue that the insurers want to fight the case and place some of the blame on a 13 year old girl, but that when it comes down to decisions in a court of law, it can depend entirely on the Judge on the day of the hearing. A Judge may well agree with the insurers, leaving a brain damaged teen with less money that is needed to make sure she is cared for and looked after for the rest of her life, which lets face facts, the quality of which is nowhere near what she could have had if the accident would not have happened. It’s a tragic story and when you look at it from a black and white approach, I’m sure you’ll agree with me when I say that Churchill should just pay out in full! They are an insurance company – their job is to pay insurance claims to injured accident victims.
But, as I said at the start of the blog, we see it all the time when insurers try to limit payouts and put some of the blame on the injured person. In some cases it is a fair argument; but they tend to push these arguments even more in high value cases like this as they can end up saving themselves millions of pounds; at the expense of a permanently injured teenage girl.
We will have to see how this story pans out…
IMPORTANT: advice on this page is intended to be up-to-date for the 'first published date'.