G v MIB

30/10/2023

Settlement of £3.55 million in spinal cord injury claim against the MIB under the Untraced Drivers Agreement

Lionel Stride (instructed by Tracey Benson of Slater & Gordon), represented a claimant who suffered a spinal cord injury after collapsing in the road and being run over by an untraced driver. A settlement of £3.55 million was obtained in the teeth of a full denial of liability by the MIB.

Background

The Claimant had been crossing the road to her vehicle after visiting friends when she fainted and fell to the ground. A short time afterwards, as she began to stir, she was struck and then run over by a driver who failed to stop. It later emerged that the vehicle had been stolen and the driver was never traced after it was found burnt out. An application therefore had to be made for compensation to the MIB under the Untraced Drivers’ Agreement. This meant that, despite the criminal illegality, the Claimant still had to prove that the untraced driver had been negligent and that, but for any such breach of duty, the collision would have been avoided.

The incident had been caught on various CCTV cameras and took place on a wet night, on a residential street in a 30mph zone but with the stolen vehicle travelling at only 18.7 mph on impact. There was also evidence that the Claimant knew that she had been feeling dizzy, and had either taken, or suspected that she had been given, drugs prior to trying to cross the road.

MIB’s Evidence & Position

The MIB instructed an accident reconstruction expert, who prepared several reports (the first without attending the accident locus), concluding that the accident had been unavoidable because the Claimant could not have been seen in the road by a reasonably prudent driver until a few metres from the collision. He drew the same conclusion even after attending the site and acknowledging in his second report that, at least in dry conditions, visibility would have been much longer. The expert further contended that the Claimant had been negligent in multiple ways, including crossing the road diagonally to her vehicle (even though the road was clear at the time).

Armed with the accident reconstruction report, the MIB denied liability in full but offered the sum of £1million to avoid an appeal of their decision. They alleged that even if, which they disputed on the analysis of the reconstruction expert, liability was made out, there would be up to an 80% reduction for contributory negligence given the evidence that the Claimant had taken drugs and/or knew that she was dizzy and might faint before crossing and then collapsing in the road. They relied on cases involving claimants who had collapsed in the path of danger after drinking, such as Green v Bannister [2003] EWCA Civ 1819.

Claimant’s Response

The Claimant was advised by previous counsel to accept the MIB’s offer because, on the evidence, primary liability would not be made out even on appeal of the decision. The Claimant then sought a second opinion on the recommendation of Tracey Benson. Once instructed, Lionel Stride was able to demonstrate clear flaws in the reasoning of the expert report, including:

• His over-reliance on the research of Muttart despite its limitations in respect of the locus and precise circumstances of the accident;

• His selective use of analysis in a previous report (not based on the actual locus site) to show that the accident was unavoidable in wet conditions;

• His attempt to show that the driver had been approaching more quickly than 18.7mph (but well within the speed limit) despite the absence of evidence of braking (in order to support his contention that the accident was unavoidable);

• His failure to take into account the additional visibility that would have been afforded to any approaching driver by the Claimant’s bright clothing;

• His failure to take into proper account that his own reconstruction confirmed that actual visibility would have been double the distance he claimed (18 metres); and that at almost any speed under 22.5mph (i.e., a reasonable approach speed in the circumstances), the accident would then have been avoided by a reasonably prudent driver; and,

• His failure to take into account at all that, as there was no head injury despite the Claimant facing forwards, it was likely that the spinal injury had been caused around 8metres into the collision by the driver’s failure to stop (there being an audible crunch at that point). This meant that, even if the initial collision were unavoidable, the critical impact was not.

The Claimant was duly advised to reject the MIB’s offer and to appeal any adverse final decision under the Untraced Drivers’ Agreement given the strength of her case and severity of her injuries. This was duly conveyed to the MIB, who invited the parties to a settlement meeting ostensibly to explain their reasoning prior to confirming their final decision. Once the flawed reasoning of the expert was highlighted, however, and it was made clear that the Claimant would appeal any unsatisfactory decision or award that was too low, the MIB was persuaded to accept a final settlement of the claim at £3.55 million. This was within the reasonable range of full awards that might be made on any re-assessment on appeal and/or a full valuation of the claim with a maximum 1/3^rd discount for the risk on primary liability and/or contributory negligence.

Lessons Learned

The case demonstrates the need carefully to scrutinise any adverse evidence obtained by the MIB as part of their investigation into a claim presented under the Untraced Drivers’ Agreement, as well as the need to communicate (a) clear grounds of opposition to the MIB’s proposed decision; and (b) the intention to appeal if a nil or an unreasonably low award is made. By presenting the Claimant’s critique of the evidence robustly at the settlement meeting, the parties were able to find a compromise that resulted in a fair compromise without the need for such an appeal. It was also to the MIB’s credit that they were prepared to accept such flaws in the evidence once explained, as well as to significantly adjust their assessment of the appropriate award.