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Chambers & Partners
13/02/2020

Barakov v Higgins (2019) – trial success for a Claimant who had no recollection of what happened in a pedestrian vehicle RTA

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Trial success for a Claimant who had no recollection of what happened in a pedestrian vehicle RTA where no accident reconstruction evidence had been obtained; apportionment of 80/20 in his favour.

Recorder Barakov sitting in the Central London County Court found for the Claimant pedestrian in a liability trial (the Claimant having suffered significant brain injuries)  and made a reduction of 20 percent contributory negligence to reflect the fact that he had walked backwards into the road without looking when the Defendant, driving slowly at 15MPH, failed to respond appropriately to his presence in the road and drove into him. Counsel was instructed late in the case and far too late to seek accident reconstruction evidence; previous counsel had turned the case down as unlikely to succeed given the foolishness of his decision to walk backwards into the path of the car and the limited time the driver had to respond.  The Claimant recovered indemnity costs and interest having beaten his own offer of 70/30; the Defendants lump sum offer was beaten by some margin. The case is of interest because the Claimant had no idea what had happened to him; there were no witnesses in attendance and no permission had been sought for reconstruction evidence.  A plan of the location was agreed with the Defendant on counsel’s advice which allowed the court to be satisfied that the Defendant could have avoided the accident the Defendant having been extensively cross examined. Until the Defendant was cross examined the Claimant’s case amounted to, I was hit in the road in circumstances I cannot explain. The case applied Bruma v Hassan [2017] EWHC 3209 a relatively little-known decision of Patrick Curran QC sitting in the High Court that interprets Eagle and Sabir (well known pedestrian vehicle RTA’s with findings of 60/40 and 75/25) in a way that is generous to most pedestrians where both parties have acted foolishly.

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