Liability Agreement approved by the High Court for a Claimant with a catastrophic brain injury

On the day of his accident, our client, JF, had been for a long bike ride around Surrey.  He was a keen cyclist and belonged to a local cycling group.  He was returning to his home, cycling downhill on a road in London when he came off his bike.  This was likely caused by a depression in the road which was in very close proximity to a speed bump. The accident was not witnessed and therefore, there is no account of the precise circumstances, but it was clear that, despite wearing a cycle helmet, he hit his head, sustaining a catastrophic brain injury.

Due to JF lacking capacity to litigate and manage his finances, we were instructed by JF’s litigation friend (JF’s sister) to pursue a claim against the local Highways Authority.  

Denial of liability

The Highways Authority denied liability based on the Statutory Defence found under Section 58 of the Highways Act 1980. The Statutory Defence states:

“58 Special defence in action against a highway authority for damages for non-repair of highway.

• In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”

Witness statements were taken from the residents of the road.  They confirmed that the depression in the road had been present for a significant amount of time and had caused previous accidents.  We also demonstrated that the Highway Authority had received several complaints relating to this hazard, but, due to issues within their own reporting systems, had not actually inspected the defect when complaints arose.

Expert advice

We sought advice from a leading cycling barrister.  He agreed that prospects of success were good, so we issued Court proceedings.  The Highway Authority responded, relying on the Statutory Defence to deny liability completely.  They also argued that the accident was JF’s own fault, caused by his speed and braking method.

The outcome

We obtained expert opinion in the fields of Accident Reconstruction and Highway Engineering.  The case was listed for Trial in July 2022, solely to deal with the preliminary issue of liability.  Prior to the Trial, the parties engaged in a Round Table Meeting to see whether an agreement on liability could be reached.  After a fruitful negotiation, settlement was agreed between the parties at 76.5% in the Claimant’s favour.  Due to JF’s lack of capacity, his Litigation Friend provided instructions to accept to settle at this level.  The settlement was subsequently approved by a High Court Master at an Approval Hearing in May 2022.

This was a good result for JF and it means that we can now push on with gathering our quantum evidence.  Due to the nature of his injuries, the settlement sum is likely to be a considerable amount.  The court of Protection has already appointed a Deputy to Manage JF’s funds, because he now lacks the ability to do so himself.  We were able to secure a seven-figure interim payment at the Approval Hearing which will enable JF to fund any additional rehabilitation required when the case ultimately concludes.

How Moore Barlow can help

This case is a good example of the fact that Moore Barlow does not shy away from litigation and we are willing and able to push cases all the way to Trial if required.  In this case, liability was settled just before Trial but, in any event, we were ready to proceed should liability have remained in contention.

Our Serious Injury Team are highly experienced acting for those who have suffered serious orthopaedic injury including those who have had a traumatic amputation or are at risk of elective amputation.