Gemma Witherington

Gemma is recommended by Legal 500 as a leading individual in personal injury work.  She represents both claimants and defendants in fatal and catastrophic injury claims, including severe brain damage, spinal injuries, and amputations.  She has a particular interest in cases involving significant head injuries and is sought after for settling complex Schedules and Counter schedules.

She regularly acts for many leading insurers and is experienced in group litigation. Gemma is known for her fierce advocacy and unrivalled determination to get the best results for her clients as well as for her calm manner and eye for detail.

Her core specialisms include:

Fatal Accident claims

Gemma advises on claims brought by and against Estates for bereavement damages. This often involves complex work on schedules of loss or counter schedules.

Psychiatric Injury

Gemma has settled and advised on many claims for occupational stress and harassment with complex medical causation issues and novel issues of quantum; further Gemma has advised the NHSR, NHS Wales and Claimants in respect of the prospects of success of bringing secondary victim claims, where complex issues arise in respect of whether an event in sufficiently shocking, proximity in space and time and causation.

Catastrophic injuries

Gemma has considerable experience of catastrophic spinal and brain injury litigation encompassing severe cognitive conditions arising in the context of road traffic accidents and employers’ liability claims; and in the analysis of high value complex claims.  She is instructed for her success in mediations in difficult cases such as serious fatal accidents and to attend round table settlement meetings. Gemma understands the emotional difficulties involved in catastrophic cases and the need for sensitivity when dealing with clients.

Motor accidents

Gemma has extensive experience of cases involving allegations of fraud or exaggeration and often involving technical expert reconstruction evidence- please see her Insurance Fraud profile for further information.

Occupiers and vicarious liability claims

Gemma has broad experience for both Defendants and Claimants in occupier’s liability cases.

Animals Act and dog bite claims

Gemma has represented numerous Claimants who have suffered serious life changing injuries from dog bites; and serious injuries from falls and bites from horses.

International Injury & Travel Law

Gemma has experience in representing Defendants arising out of the Package Travel, Package Holiday and Tour Regulations 1992 in respect of gastric illness. She has also dealt with accidents abroad, jurisdictional issues, and the Montreal convention.

Selected Cases

Fatal Accident claims:-

• The Estate of Frederick Oborne v Berkshire Hathaway International Insurance (2021) instructed to represent the estate of the deceased following a horrific road traffic accident where a man was decapitated at the scene of the accident when his bike was struck by the Defendant driver. Case is ongoing.
• The estate of Harry Rice and others v Mr Chudasama (2021) instructed to represent three bereaved families whose children were killed in a fatal car accident in 2018 when they were struck by the Defendant’s vehicle. Claim ongoing.

Psychiatric Injury:-

• JK v Royal United Hospitals Bath NHS Foundation Trust (2021) instructed to act for the Defendant NHSR where the Claimant’s baby died shortly after birth as a result of obstetric negligence. A claim has been brought by the father of the child on the basis that he has suffered personal injuries arising from the psychiatric shock. The father is a well-known international actor, who alleges he lost the chance of significant earnings in Hollywood/blockbuster films on account of his injuries. The Claim was dismissed at trial.
• Mrs Sandhu v Alliance Bernstein Limited (2019) instructed on behalf of the Defendant in this psychiatric injury claim brought by the Claimant against her former employer. There were serious allegations of abuse against employees of the Defendant and the Police were investigating the allegations, which had racist and sexist undertones. The Claim was struck out.

Catastrophic injuries:-

• Vallens v Oxted School (2019) instructed by the Claimant when she was struck on the head in the course of her employment duties at work and has suffered a serious brain injury and impairment of cognitive function. Reconstruction evidence, primary liability, apportionment, and quantum were all in issue. Claim successfully settled.
• Representing the Claimant, a young man under the age of 30, in the High Court who has suffered a brain injury following a head on collision at 80 mph. The case involved loss of cognitive function, long term care issues and complex loss of a chance arguments.
• Piero v TFL, representing the Claimant who suffered a serious and life changing brain injury when he was struck on the head by a falling tube station sign. He was a Captain for an international airline before the accident.

Motor Accidents:-

• Mrs Sarah Stainthorpe (as representative of Donald Stainthorpe) v James Patmore (2021). Represented the Claimant in this catastrophic injury case where the Claimant was knocked from his mobility scooter by the Defendant driver. He lived for a further 9 months before dying from his injuries. Achieved a successful settlement of the case and sizable compensation for his estate.
• Mr Bugden v Drayz representing the Claimant in this action for damages where the Claimant cyclist was knocked from his bike and suffered life changing injuries. Trial listed in 2022.

Occupiers and vicarious liability claims:-

• Aukett v London Borough of Hillingdon (2022); instructed to represent the Claimant, a teaching assistant, who suffered a serious and life changing assault by a school pupil. The claim settled during the course of a 3-day trial following cross examination of the Defendant’s witnesses and with the Claimant receiving a signifcaint settlement.
• D’Agostino v Caroline Farthing and Farthing Flowers Limited (2021) instructed to represent the Claimant in a claim for damages where he fell down a set of stairs at an Ottolenghi Deli and severed an artery in his arm. He nearly died due to the blood loss and the injury had life changing consequences. Gemma succeeded in establishing liability and a significant damages award.
• Clark v Warmlington Methodist Church (2019) instructed to represent the Defendant in this public liability claim for a trip in a town hall. The claim was dismissed following trial.
• Instructed to advise the National Research Council of Great Britain in respect of an injury sustained by one of their employees in Antarctica during a research mission. The Claim was successfully struck out.

Animals Act and dog bite claims:-

• Pamela Menzies v Doggie Holiday Homes and others (2021) instructed on behalf of the First to Third Defendants in this Animal’s Act claim. The Claimant was knocked over in the park by the Fourth Defendant’s dog causing lifelong injuries. Claim successfully dismissed at trial.
• Alan Michael Carr v Mrs May and Mr Hammick (2021) representing the Defendants in this claim alleging serious injuries sustained by the Defendants’ dog. Trial listed for autumn 2021.

International Injury & Travel Law:-

• Daniel Samuel v Expedia (2021) acting for the Defendant in this claim by a hotelier against the booking company. Claim ongoing in 2021.
• Groves v Red Sea Holidays successfully defended the holiday company against a travel sickness claim brough by mother and daughter for allegedly contracted norovirus whilst on holiday in Egypt. The claims were dismissed after a trial.
• Shakespeare v British Airways (2020), representing a claimant for personal injuries following bed bug bites she received whilst on board a BA aircraft.

Other recent instructions:-

• Aylse McCamish and Sydney Feder v Royal Welsh College of Music and Drama (2023): represented the successful Claimants, two actresses, who were sexually assaulted by a fellow student whilst studying at the renowned Royal Welsh College of Music and Drama, whose alumni include Sir Anthony Hopkins and of which, King Charles is a former President. This landmark case is the first reported decision to establish that a university does owe a positive duty of care to its students when they report sexual assault allegations.

Gemma has extensive experience of clinical negligence work for Claimants and Defendants in a wide range of fields including claims involving obstetrics, orthopaedics, oncology, gynaecology, paediatrics, neurology, urology, and general surgery.

She is frequently instructed to attend joint settlement meetings on negligent provision of treatment; catastrophic brain injuries caused at birth; failure to diagnose cancer and the negligent execution of cosmetic and gastric surgery; death resulting from delayed cancer diagnosis, loss of sight cases, wrongful birth, suicide attempts and other negligence.

She also advises on the issues that commonly arise in disease claims, including causation and evidence including technical/scientific expert evidence, parties, limitation, and apportionment. She regularly advises the NHSR on tactical, quantum and liability issues.

Examples of recent work:

• JK v Royal United Hospitals Bath NHS Foundation Trust (2021) instructed in this High Court case to act for the Defendant where the Claimant’s baby died shortly after birth as a result of obstetric negligence. A claim was brought by the father of the child on the basis that he has suffered personal injuries arising from the psychiatric shock. The father is a well-known international actor, who alleges he lost the chance of significant earnings in Hollywood/blockbuster films on account of his injuries. The claim was dismissed following a successful trial.
• Uriely v Royal Free NHS Hospital Foundation Trust (2021) instructed to defend a claim by the parents of a deceased child, who died aged 9 years old after suffering a fatal asthma attack. Listed for trial autumn 2021.
• Scott v London Centre of Aesthetics Surgery (2021) Appeared in the High Court for a plastic surgeon accused of malpractice in breast augmentation and assault. Claim successfully settled.
• Katy Richards v Cornwall Hospital Trust (2021) Instructed to represent the Defendant NHS Trust in this case where it is alleged that the Claimant’s daughter died because of neglect by the Hospital. Claim is ongoing.
• LR v GC Instructed to represent the Defendant, a renowned Oncologist, who is accused of failing to identify breast cancer when the Claimant reported to him that she had identified a lump in her breast. The Claimant alleges that she was wrongly reassured and later went on to develop aggressive breast cancer, which is likely to be fatal. Claim is ongoing and listed for trial 2022.
• S v Basildon and Thurrock Hospitals NHS Trust (2020) acted as junior for the Defendant in this alleged secondary victim claim. The Claimant’s wife died from sepsis in the early stages of pregnancy and an inquest found the Defendant had missed several opportunities to save her life. The case is ongoing.
• Omoroghomwan v North Middlesex University Hospital Trust (2019) instructed to represent the estate of the Claimant, who was overlooked in an A&E cubicle and found dead with rigor mortis 4 hours after suffering a heart attack. Case successfully settled.
• ML v Grimsby Maternity Trust (2019) instructed on behalf of the Claimant whose baby was stillborn following negligent care at the Defendant hospital. Case successfully settled.
• RM v South Warwickshire NHS Foundation Trust (2019) Advised the NHSR in respect of the alleged failure to diagnose and treat a patient who left A&E and committed suicide. Case successfully settled.
• Bonner Williams v East Sussex Health Care NHS Trust (2019) Represented a Claimant who had suffered a twisted testicle and alleged the Hospital failed to diagnose and treat his condition, leading to gangrene and the loss of a testicle and reduced fertility and erectile dysfunction. Case successfully settled.

Gemma’s abuse work covers both Claimants and Defendants. She is experienced at dealing with complex vicarious liability arguments, limitation issues, anonymity orders, and the credibility of parties’ recollections which are commonplace in such claims. She has defended clams against large organisations.

In particular, Gemma is highly knowledgeable about psychiatric injuries such as PTSD, adjustment disorders and depression, and claims under the Protection from Harassment Act 1997. She is experienced at handling emotionally vulnerable clients.

She has an in depth understanding of the importance of forensic analysis of documentation spanning long periods of time and the leading case law on duty of care. She was named the Times Lawyer of the week in October 2023 for her work on the case of McCamish and others. A landmark case in establishing a duty of care in a university setting.

She also has good working knowledge of safeguarding issues; local authority work, and childcare legislation by virtue of her training as a family law (private and public) Recorder.

Her recent work includes:

• The Odey Litigation, 2024. Ongoing High Court action in respect of alleged widespread sexual abuse spanning 25 years.
• McCamish & Feder -v- Royal Welsh Drama and Music (2023) where she successfully secured a landmark decision establishing that a university owes a positive duty of care to its students when they have suffered sexual abuse by another student.
• AB v CD, defending a large multinational organisation against a former employee’s claims for emotional and sexual abuse spanning back many years.
• Defending a claim against a Psychiatric Hospital, where various clinicians were alleged to have emotionally and physically abused an in-patient. The claim concerned damages under the Human Rights Act as well as damages for false imprisonment.

Gemma has extensive experience of cases involving allegations of fraud or exaggeration and often involving technical expert reconstruction evidence. She is ranked in Tier 1 of the Legal 500 for fraud work.

She is regularly involved in the management of high-value and document heavy claims, including those where fraud is alleged in road traffic claims, including staged accidents (including fraud rings), slam-on accidents, phantom passenger claims and low velocity impacts.

She was instructed in the leading case of Accident Exchange Ltd v Broom [2017] EWHC 1096 on behalf of the one of seven Defendants in a civil contempt of court action in the High Court arising out of the Accident Exchange litigation. This multi-party action required delicate cross-party co-operation and meticulous analysis of the evidence.

Her core specialisms include:

• Exaggeration
• Fraud
• Findings of fundamental dishonesty claims
• Section 57 of the Criminal Justice and Courts Act 2015
• Abuse of process applications
• Fraud rings
• Late discontinuance in the face of allegations of fraud
• Committal proceedings
• Costs issues relating to fraudulent claims.

Recent cases:

• Debar v DTZ Management Services (2021) Acting for the Defendant in this claim for damages following a staged accident at work. The Claimant alleged that he slipped over on a patch of water at the Defendant shopping centre and suffered life changing injuries and was unable to work again. Gemma drafted a robust Defence pleading fraud based on the covert surveillance evidence and Facebook material. The claim was withdrawn the day before trial.
• Sarah Sentence v London Borough of Hillingdon (2021) representing the Claimant in this allegedly staged accident claim against her former employers. The Defendant alleged that the Claimant had contrived an accident because she was bitter about her treatment in general by her employer. Claim successful on liability and quantum trial listed in the spring of 2021.
• Shona Simpson v Michael Payne (2021) represented the Claimant in the High Court to appeal of a finding of fundamental dishonesty.
• Dutra v Aoi Nissay (2020) acted for the Defendant in this claim for damages following a staged road traffic accident. Gemma drafted a robust Defence pleading fraud based on the telematic data (black box) contained in the insured’s vehicle. Claim withdrawn based on the Defence.
• Hassan v Tariq and Aoi Nissay (2020) acted for the Defendant insurer in this fraud ring of staged road traffic accidents where there is believed to be at least 15 other accidents in the same locality linking the same parties. Case ongoing.
• Miss Groves and Mrs Groves v Red Sea Holidays (2019) instructed to represent the Defendant in this travel sickness claim where the Claimants (mother and daughter) had alleged that they had suffered severe food poisoning in Egypt whilst on holiday. Claim dismissed at trial.

Gemma appears at lengthy and complex inquests, including jury inquests concerning the right to life. She has advised and represented bereaved families, individuals, statutory bodies, and corporate entities in cases covering a vast range of complex legal and factual issues. She often advises and represent parties through all stages of the civil litigation that can often follow an inquest.

She has advised and represented clients in connection with health and safety matters such as an explosion on a ship, fatal accidents in factories, a death in a lift shaft and mesothelioma claims.

Examples of recent work:

• Acted for a lift engineering company at a 5-day jury inquest following the death of a man in a residential lift shaft. The case was extremely sensitive due to the nature of the death and the family circumstances, with HSE involvement in the background.
• Instructed in a 5-day jury inquest to represent the family of a deceased navy officer following an explosion on a ship.
• Acting for the family of a man who died following the incorrect insertion of a gastric feeding tube at Hospital. Gemma was instrumental in gaining a narrative verdict for the family and establishing changes of practices at the Hospital following his death.

Gemma has experience in product liability work involving complex technical, engineering and design issues, causing serious personal injuries, property damage and business interruption.

Her recent cases have involved defective tyre claims; vehicle fires and other defects in vehicles; fire damage claims arising from faulty equipment; a fire on board a dredger ship arising from faulty fuel lines causing significant damage, and faulty playground equipment.

She has experience of misrepresentation issues, product labelling, and cross border issues. She is also acutely aware of the wider reputational issue which can be at stake in claims.

Examples of recent work:

• In 2021, Gemma is instructed by Baldwins Crane Hire in respect of a claim brought by QBE insurance regarding a large wheel coming loose from a mobile crane on the motorway. The wheel caused extensive property damage and several road traffic accidents involving personal injury claims.
• In 2020, Gemma was instructed as junior in the Group Litigation case of Ms Carrie Brett and others v Mr Shiva Singh and others action against several surgeons who are accused of negligent supply of PIP breast implants causing injury.
• Mills v Alton Towers, acting for the Defendant, Merlin Group, in respect of an alleged faulty ride at its water park, where the Claimant rider had suffered a serious injury to this shoulder. The claim was dismissed at trial.
• Paul Stokes v Air Products PLC, acted for the Defendant manufacturer in this claim of an alleged defective vehicle. The claim was settled with a successful outcome.
• Mrs Patricia Jones (Personal Representative of Anthony Jones) v Hanson Aggregate, where an explosion aboard a ship caused by faulty equipment lead to an engineer suffering 70% burns to his body and dying.
• Jessica Oseland and Alison Foxall v Thomas Jones; Fairground inspectorate, Sure check Limited and Tivoli Manufacturing Limited. Acted for the designer of a fairground ride which had suffered a malfunction and lead to a carriage breaking free from a ride and the occupants, two teenage girls, suffered life changing injuries, and one became a tetraplegic.

Gemma’s insurance practice frequently involves advice and litigation relating to policy coverage and the construction of policy wording. She also regularly advises on and drafts letters of declinature on behalf of insurers.

For example, she has advised in matters where cover has been declined under healthcare policies where policy holders develop terminal illness. She has also advised on claims brought by widows for payment from life insurance schemes.

She is experienced in issues related to ATE policies, insolvencies of insurers, and disputes between insurers on different years of account. She has also advised on cases involving more niche areas such as the effect of the Consumer Credit Act 1974, financial mis-selling, and the effect on insurance policies.

Her experience covers:

• Actions for negative declaratory relief;
• Fire and flood claims;
• Claims arising under permanent health insurance policies where parties or estates have been refused coverage or settlements;
• Represented insurers in motor policy disputes and employer’s liability cases;
• Policy disputes arising out of alleged fraud and material non-disclosure;
• Motor insurance disputes arising in relation to policy coverage and the MIB Agreement.

In 2021, Gemma has advised various insurers including Beazley and Davies Group in respect of a variety of policy claims. Many of the cases are highly confidential and the full details cannot be shared.

Example of recent work include:

• CC v Northern Ireland Hospice (2021) instructed to represent the Defendant’s insurer and advise on the terms of a medical insurance policy and issues of non-disclosure and drafting a declinature letter.
• Ms Wilson v My Aesthetics (2021) advising the insurer of a clinical aesthetics practice on the terms of a policy and the interplay of financial mis-selling on the policy.

Legal Professionals

Gemma acts for both claimants and defendants and has an excellent track record in achieving highly desirable outcomes. She acts for a wide range of professional bodies, insurers, and individuals. She is highly experienced in handling high value claims against solicitors and Barristers involving limitation issues, under-settlement, negligent assessment of the merits of a case, capacity issues and procedural default.

She has also dealt with cases involving family or matrimonial issues. Gemma sits as a Recorder with tickets in both private and public family work, and so has solid experience of such issues. She also has excellent working knowledge of the CPR and matters such as relief form sanctions application or failed appeals.

She has been instructed on more novel issues related to professional negligence matters such as contempt of court and wasted costs applications, and applications made directly against insurers.

She is experienced in dealing with issues of apportionment where claims are brought against multiple solicitors’ firms and counsel, and where there are causation arguments about the potency of breaches of duty.

Her experience covers areas such as negligent advice in respect of possessions, mortgages, leases, forfeiture, and contracts and employment disputes in the Tribunal.

Many of the cases Gemma is instructed in are highly confidential and therefore cannot be stated here.  She is presently instructed to represent a high-profile personal injury silk against a high value and complex negligence claim (2021), and the case is ongoing.

She is also representing several large international law firms against claims in negligence (2021). In 2020, she acted for a law firm and successfully defended a wasted costs application against the firm and individual solicitors.

Further recent work:

• Andrew Withey v Associate Law Firm and others (2021), representing the Defendant law firm in a claim where it is alleged the Claimant’s personal injury claim was badly handled and struck out and there was a failure to make a relief from sanctions application. There are issues of apportionment between two solicitors’ firms who had acted on the case before it was struck out.
• Horton v Wright Hassall, Gemma was instructed for the Defendants in a claim alleging negligent advice related to high value property transactions. The Claim was struck out early on in the proceedings and a successful costs award achieved in favour of the Defendant.
• Slater and Slater v Steels Law Ltd – successful early settlement of a claim against former solicitors who had negligently advised the Claimant in respect of the purchase of their property, which ought to have been their dream home. However, the solicitor searches failed to establish a 500+ housing site being built behind it.
• Instructed in a multimillion-pound claim, where both solicitors and counsel are alleged to have undervalued a catastrophic injury claim.
• Represented an insurer in respect of a solicitor’s firm’s failure to issue a claim in time resulting in the claim being statue barred.
• Instructed by an insurer to defend a claim where a solicitor’s firm had failed to issue an application for relief from sanctions, which resulted in the claim being struck out.

Gemma is regularly instructed in costs disputes in the Senior Courts Costs Office, the High Court and the County Courts. She has considerable experience of detailed assessments of costs, acting for paying and receiving parties. She was recently instructed in the Privy Council in respect of a detailed assessment of costs.

In addition, she has litigated matters such as wasted costs orders; the premature issue of proceedings and the effect of Part 36 offers. She has also advised on the recoverability of ATE premiums and CFA funding arrangements and on issues of proportionality.

Her work also includes:

• Costs management under the recent CPR 3.12-3.18
• Costs budgeting and CCMCS
• Costs capping orders under CPR 3.19.
• Disputes arising from CFAs and DBAs following the Jackson reforms.
• All matters arising under pre-April 2013 CFAs.
• Application and interpretation of principles and rules on costs – e.g. the indemnity principle, scope of Part 36.
• Detailed assessment hearings – both where points of principle are raised and the more standard assessment hearings.

Gemma has also delivered numerous seminars on the nature and effect of Part 36. Her recent blog article on Part 36 case law appears on Lexis Nexis.

Examples of notable work include:

• Kagalovsky and Balmore v Wilcox and others [2015] EWHC 1337 (QB). Gemma acted as junior in one of the largest wasted costs cases reported.
• Silver Point Condominium Apartments v Swart and others JCPC 2013/0073, in 2016, Gemma has represented the Appellant in an assessment of costs in the privy council.
• Representing the Claimant in a dispute about the validity of a Part 36 offer and whether it is capable of acceptance. The case involves detailed analysis of both Part 36 and the common law regime of settlement.