Simon

The Facts

Four years ago, I visited Simon at Stoke Mandeville Hospital at the request of his parents. Simon had been celebrating his stag day in London. A minibus had been hired to take Simon and his friends to London and back again. The driver of the minibus drank no alcohol during the day; the rest of the party drank heavily. On the way back home on the motorway, Simon opened the sliding door of the minibus, took hold of the roof-rack and swung his legs up onto the roof with the intention of "urban surfing". The driver of the minibus pulled over onto the hard shoulder, slowed his speed and persuaded Simon to get back inside. Later, and while still in the middle lane of the motorway, Simon opened the side door again, stood up and took hold of the roof-rack. Almost immediately the driver swerved towards the hard shoulder. Because of roadworks the hard shoulder was being used as another carriageway. While turning round to view Simon, he lost control of the minibus and went down an embankment on the nearside of the motorway. Simon was thrown out of the open side door, the minibus rolled on top of him, resulting in his paralysis at T5/6.

The Difficulties

Simon, not surprisingly, following his stag party was drunk. His actions were reckless and it was foreseeable that anybody "urban surfing" may be liable to serious injury. Hearing this case a Court was bound to regard Simon´s behaviour unsympathetically.

Overcoming the Difficulties

Despite Simon´s recklessness, it was important to understand the mechanics of how Simon´s injuries had been caused. There were two avenues to investigate. Could the Highways Authority and/or the contractors have some responsibility for not placing barriers at the point where the minibus left the motorway? On the advice of experts, it was decided that such a claim was unlikely to succeed. Having ruled out a claim against one or more of the passengers, the only potential defendant was the driver of the minibus. He pulled off the motorway, knowing there was no hard shoulder and he failed to cope with the hazardous situation caused by Simon. He crossed to the near side of the motorway with unnecessary vehemence and lost control of the minibus.

If primary liability could be established against the driver, it was inevitable that a judge would make a substantial finding of contributory negligence against Simon ie the extent to which Simon had contributed to the accident. However, even if a judge found Simon to be 75% responsible for the accident, 25% recovery of damages would still equate to a significant award of compensation.

The Outcome

Tactically we decided to separate the issue of liability (ie who was to blame) from quantum (ie how much). In 1997, immediately prior to the trial on liability and following negotiations with the Defendants, liability was admitted on behalf of the driver subject to a deduction of 66.6% for Simon´s contributory negligence. Given the significant risk of completely failing to establish liability against the driver, this was considered to be an exceptional outcome for Simon. In 1998 damages were agreed with the Defendants. Simon returned to work 10 months after the accident and married the following year.