An insurance company is trying get out of a £5million payout to a 16-year-old girl by blaming her for being hit by a car because she wasn’t wearing – a high-visibility jacket.
Bethany Probert, 16, was struck by a car while she was walking home from a horse riding lesson along a country lane on the evening of December 3, 2009.
The schoolgirl, aged 13 at the time, suffered a broken collarbone, lung damage, and devastating head injuries which have caused permanent brain damage.
A judge found the driver 100 per cent liable for the crash and his insurers were ordered to pay out up to £5million in compensation to fund Bethany’s full time care.
But insurance giant Churchill has now launched a “disgraceful” bid to wriggle out of paying the cash – claiming the accident was Bethany’s fault.
The Court of Appeal has allowed the insurers to appeal the original ruling which means Bethany could be left with nothing , if they find her to be at fault.
Churchill’s lawyers plan to tell the court Bethany should have known to wear reflective clothing because she was an experienced horse rider.
But her family have slammed the claims as “ridiculous” – arguing Bethany was just a child.
Bethany and her family have already been forced to sell their house to accommodate the teenager’s disabilities.
Her mother Joanna Probert, 51, was forced to quit her own event management and financial advice firm to care for her daughter full time.
Bethany yesterday accused the insurers of dragging up the trauma of her crash all over again.
She said: “Do you know what. The worst thing is that nobody actually knows what this is like.
“Nobody’s been through this and nobody knows what it’s like to have it brought up all over again.
“Some days I feel like it’s not too bad but other days it’s just awful and it gets hard to deal with.”
Furious Joanna accused the insurers were heaping fresh misery on her family, whose lives had already been “ruined”.
She said: “It is just ridiculous. They are saying that she should have been wearing a high visibility jacket because she rode a horse but she only ever rode a horse in the field.
“You don’t expect three years down the line to be still waiting for closure. It’s not about the compensation it’s about starting to plan for Bethany’s future.
“I just think it’s disgraceful that they have appealed.
“Our lives have all been ruined. We had to sell a house to afford her care and I had to leave my job to be able to care for Bethany full time.
“We have run out of money now and even if they lose the appeal the process is delaying any compensation claims.
“She has a lack of spatial awareness, she struggles to walk, she can’t run or ride her horse properly. All the things that we take for granted.
“It’s just devastating for us that they have been allowed to appeal and it was so upsetting for Bethany when she found out. She has to relive it all over again.”
Bethany, of Silverstone, Northamptonshire, had been to see her horse Troy at the riding stables near her home in Silverstone, Northants., in December 2009.
Instead of waiting for her mother to collect her, the school girl decided to walk home down the narrow, bending, unlit lane.
At the time she was listening to music on earphones.
Paul Moore, a fitter, had moved aside to pass an oncoming vehicle on Abthorpe Road, near Silverstone, as he rushed to work in his Saab 9-3.
But seconds later he clipped Bethany as she walked on the grass verge – sending her flying into a nearby hedgerow.
He stopped and found Bethany lying yards from where she had been hit and alerted emergency services.
Bethany survived the accident but was left with limited walking ability, depression and a lack of concentration or spatial awareness.
She now requires specialist equipment, a support worker and an open plan, one level home.
Joanna Probert, Bethany’s mother, sued Mr Moore for enough compensation to sustain care costs for the rest of her life.
In August of 2012 London’s High Court cleared Bethany of any contributory negligence and held the insurers Churchill fully liable.
Mr Moore was found to be driving at about 50mph – which the judge considered to be too fast for such a road in darkness.
Bethany was granted payment to help cope with her injuries with the compensation set at up to £5million.
Now the Court of Appeal has allowed the insurers to appeal and if judges decide that Bethany was at fault they can proportionately cut any payments awarded.
Churchill argue that Bethany was at fault because she walked down the country lane without high-visibility clothing.
Their lawyers have argued that the teenager should have known from her training with horses about the need to be visible at night.
It means the case will be the first to decide the extent to which children can be held responsible for their own injuries in road accidents.
RJW Slater & Gordon, Bethany’s solicitors, said: “This is the first case on the question of an accident victim’s culpability for walking on the road at night for more than 20 years and the first case of a child’s culpability.”
During the original trial the High Court upheld a principle laid down in 1966 by Lord Justice Salmon in the case of a 13-year-old girl who walked into the path of a car.
The judge said that the test should be the behaviour of an ordinary child adding: “I do not mean a paragon of prudence; nor do I mean a scatterbrained child; but the ordinary child of 13.”
The High Court judge, Mr David Pittaway, QC, said: “An ordinary 13½-year old should not be expected to consider taking the same level of precautions as an adult.
“It would be asking too much of her to say that she should not have started to walk home at all or should not have started to walk home without borrowing a high-visibility jacket, reflective markings or torch from the stables.
“Her decision to walk home was ill-informed, but not culpable.
“It would be asking too much of her to say she should not have set off.”
Bethany’s solicitor confirmed the payout due to the disabled teenager was expected to be up to £5m.
So far the High Court has already cleared Bethany of any contributory negligence and held the insurers fully liable.
The payout was due to be set at a separate hearing, which has been delayed by Churchill’s appeal.
Richard Langton, managing partner at RJW Slater & Gordon, Bethany’s solicitors, said: “So far the issue of liability is all that has been decided.
“The final amount due is decided at a subsequent hearing once the future costs for the victim are known.
“The likely value of this claim was due to be between £3million and £5million.
“The valuation at present is £125,000 a year just for the 24hour care that Bethany needs.
“Because she is 16 and has a normal life expectancy this is likely to be needed for 70 years.
“The court will not simply award the annual need multiplied by the life-expectancy. They rule on a lump sum that is invested to generate the income needed for the victim’s lifetime.
“That is why we anticipate the award of between £3million and £5million.”
Churchill said: “While we accept that our insured was liable in part for the accident, we are appealing [against] the decision that he was entirely to blame.”