In a precedent-setting judgment, the Court of Appeal has today ruled that the evidence of eyewitnesses and other contemporaneous accounts should take precedence when expert testimony cannot ‘unlock’ a case.
Global law firm Clyde & Co, which has represented LV= General Insurance in the case of Barrow & Others v Merrett (initially as BLM) since 2015, has welcomed the judgment, saying it will bring greater clarity and transparency to catastrophic injury claims.
Barrow & Others v Merrett is a road traffic accident liability case in which a minor, 11-year-old Felix Barrow, received catastrophic injuries when hit by a car in 2015. A claim for compensation worth in excess of £10m was made but disputed by the motorist’s insurer, LV= General Insurance, on the basis that the minor ran into the road making the collision unavoidable. It was argued on behalf of the claimant that he was walking at the time of the accident, fell and was in the process of standing up when he was struck by the defendant’s car.
Expert evidence could not determine factors central to the issues but contemporaneous accounts supported the defendant’s case. The case was originally dismissed (no liability on the defendant) by Richard Hermer KC in March 2021 but was referred to the Court of Appeal in June 2022. This latest judgment supports the initial decision and upholds the defendant’s case.
Andrew Hibbert, partner, Clyde & Co, said: “This has been tragic and drawn-out case made all the more significant by the severity of the injuries involved. Because of the conflicting accounts, it has taken seven years to reach a conclusion, a timescale that has been detrimental to all parties. The initial offer to the claimant may well have been received more favourably had objective scrutiny of the contemporary and witness evidence been made at an earlier stage.
“By clarifying the weight that a court should place on contemporaneous evidence in a road traffic liability case, the Court of Appeal has sent a clear signal to the judiciary. By focusing on contemporaneous accounts, we hope these actions can be resolved more quickly and efficiently, thus giving all parties the degree of certainty needed to plan ahead. It’s a decision that will engender both clarity and transparency in these actions.”
Martin Milliner, director of GI claims, LV= General Insurance, said: “This is a very tragic case and our heartfelt sympathies go out to the family of the injured child. However, based upon the unique facts of this case, it is right that the Court of Appeal concurred that that our insured driver was powerless to avoid the collision.”
In the Court of Appeal’s judgment, referring to the original case, Lady Justice Elisabeth Laing said: “The Judge recognised that the ‘hard’ evidence [expert testimony] might unlock the case. He analysed the evidence with that point in mind and decided that the ‘hard’ evidence was not the key.”
Andrew Hibbert also praised Derek O’Sullivan KC, who represented LV= General Insurance and the defendant in court.
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