Gemma Witherington

Personal Injury

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.

Abuse

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.

Selected Cases

Costs Litigation

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.

Selected Cases

Articles

• Lessons for Universities: the Appeal in Abrahart
• E-Scooters to be legalised for private use on public roads

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News

• Gemma Witherington: The Times Lawyer of the Week
• Gemma Witherington successful in establishing that a university owes a duty of care towards their students when making sexual assault claims against a fellow student

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Qualifications

• BA (Hons)
• PgdDip
• BVC: Very competent
• Inner Temple Exhibition Award 2007-2008
• Streuben Benefactor Award 2007- 2008

Memberships

• The Honourable Society of Inner Temple
• Personal Injury Bar Association
• Association of Personal Injury Lawyers