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How far should culpability go?

When dealing with a personal injury case, one of the most important matters to settle is the question of liability - who should take responsibility for the accident? 

Most claimant personal injury lawyers will probably agree that they can reasonably estimate what a defendant insurer's position will be on any given case, but there are always times when a case surprises and a defendant insurer either denies liability or requests that a client assume some level of contributory negligence; i.e. that they should admit part responsibility for an accident.  

One such case that has grabbed the headlines yesterday is that of Bethany Probert.  Bethany, now 16 but 13 at the time of the accident, was walking beside a road during the evening when she was hit by a motorist running late for work.  Bethany suffered a broken collarbone, lung damage, head injuries and brain damage.  

Her mother decided to make a claim for Bethany's injuries on her behalf and although the High Court found in favour of Bethany last summer, insurer Churchill has brought a test case to the Court of Appeal to encourage judges to decide the extent to which Bethany was responsible for her accident and therefore, how much compensation she should be awarded.  

This seems to be a cold-hearted move; Bethany is clearly going to be affected for life as a result of these injuries and encouraging a ruling on culpability smacks of kicking her when she's down.  But Churchill clearly believe they have grounds for the case; the road Bethany was walking near is a single lane country lane, and therefore has no path running alongside it, suggesting she should have been taking reasonable precautions when walking near the road.  However, Bethany was not wearing high visibility clothing and the area was dark.  There could therefore be a case made to suggest that Bethany left herself exposed to the possibility of injury.  

As reported by her local paper, the driver who hit Bethany was driving at more than a reasonable speed, as he was late for work.  Although Bethany wasn't wearing high vis clothing, the driver, who had used the road for over a decade during his commute to work, was driving fast enough to throw her into a hedgerow, where he then struggled to find her, so clearly, this was an impact at a considerable speed.  

Surely, the signs in this case suggest that the driver is at fault and Bethany should assume minimal, if any, responsibility for her actions?  Testament to the oddity of this case is that this is the first ever case on the question of a child's culpability in an accident.  

You have to wonder just how far a defendant's insurer is willing to go in order to avoid multi-million pound payouts, which Bethany will almost certainly get as a result of her case.  Should culpability really go this deep?  

If you or someone you love has an accident that wasn't your fault and you decide to make a claim, I'm happy to help.  And even if we do run up against someone as contrary as Churchill, you can rest assured I'll still work hard to get you the best result.  

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