The Court of Appeal has upheld the original decision in Barrow & Others v Merrett in favour of the defendant and its insurer, LV= General Insurance (LV=GI).
The case, which was dismissed in March 2021 before being appealed, centred on a disputed claim worth more than £10 million following a road traffic accident in 2015. Aged 11 at the time, Felix Barrow suffered orthopaedic and traumatic brain injuries after being hit by a car driven by an LV=GI policyholder, who was found not liable for the crash.
It was successfully argued, based on contemporaneous accounts, that the claimant ran into the road and made the collision unavoidable. The Court of Appeal ruled that eyewitness accounts take precedence over expert testimony when the latter is unable to “unlock” the case.
“This is a very tragic case, and our heartfelt sympathies go out to the family of the injured child,” said LV=GI claims director Martin Milliner. “However, based upon the unique facts of this case, it is right that the Court of Appeal concurred that our insured driver was powerless to avoid the collision.”
The insurer was represented by BLM, which is now known as Clyde & Co following the law firms’ merger this year.
“This has been a tragic and drawn-out case made all the more significant by the severity of the injuries involved,” noted Clyde & Co partner Andrew Hibbert (pictured). “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.”
According to Clyde & Co, the expert evidence in the case could not determine factors central to the issues of the claim.
“By focussing 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,” added Hibbert.