Article

Gavin's story

Gavin H, a 12 year old, was walking to school one morning. He stepped off the pavement to cross the road, into the path of a motor car which was travelling at 30 mph. It appeared that he had not seen the car approaching. The driver was not prosecuted and the witnesses to the accident stated that in their view the driver could not have avoided the collision. Sadly, Gavin suffered a severe brain injury. Under those circumstances many parents might think that it was not even worth taking legal advice about a compensation claim on their child’s behalf. However, they would be wrong since in fact in this recent High Court case the Court decided that the driver was 80% responsible for the accident. In consequence, Gavin will receive very substantial compensation which will make a huge practical difference to his life and that of his parents. On the basis of detailed analysis of the evidence and with assistance from expert accident reconstruction experts, the Court determined that Gavin was almost halfway across the road before he was hit by the car. He was also there to be seen on the kerb for some distance as the driver approached. There were a number of schools in the area and a lot of children around at that time of the morning. Accordingly, the driver should have been doing less than 30 mph, he should have been alert to what the children were doing and should have seen Gavin standing on the pavement and realised that he might step off it and he should have seen him doing so. Had the driver been paying proper attention and travelling at a safe speed, he could have avoided the collision despite Gavin stepping off the pavement when it was unsafe to do so. Gavin was only 20% the author of his own misfortune. Crucial points which arise are:

(1) Whether the Police have prosecuted is irrelevant.
(2) The opinion of other drivers is not conclusive. Being drivers themselves, they may well be too favourable to the car driver in question.
(3) Driving at the speed limit may not be sufficient under certain road circumstances. Sometimes a lower speed is essential.
(4) Expert reconstructive evidence can establish, for example, the point of collision, how much time the driver would have had to react etc.
(5) The Court regards a car as potentially a dangerous weapon and imposes a high duty of care on drivers particularly where child pedestrians or cyclists are concerned.
(6) The Court noted the statistic that when a collision occurs between a pedestrian and a driver going at 20 mph, only 5% of pedestrians sustain fatal injuries whilst most injuries are slight and 30% suffer no injury at all whilst at 30 mph the fatality rate rises to 45% with many seriously injured.

The Moral of the Story

In cases where a child is injured whether as a pedestrian or as a cyclist by a car and suffers serious injury, it is always prudent to seek specialist legal advice from a Solicitor experienced in such cases on whether a claim can be brought. Sometimes with detailed investigation and analysis a claim may be successful in circumstances in which this might not have been apparent at the outset. Also the Court can apportion responsibility. If a claim has a value of say £1,000,000 on a full liability basis, then even if only 50% responsibility can be established leading to an award of £500,000 that is still a very substantial sum of money. Even a 30% finding of responsibility against the driver would still generate a very large sum. On the other hand, if a claim genuinely has no prospect of success, the child’s parents can be advised of this, but at least they will know that they have had the issue properly looked into on their child’s behalf. We are one of the 7 law firms that make up the Child Brain Injury Legal Group. All members are experienced in advising in these sorts of cases and are always happy to help.

For further enquiries please contact Jonathan Clement (view full profile) on 01892 701264 or email jclement@ts-p.co.uk.

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