Clive Bellman (A protected party by his litigation friend Nick Bellman) v Northampton Recruitment Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Cotter QC |
| Judgment Date | 01 December 2016 |
| Neutral Citation | [2016] EWHC 3104 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14P04224 |
| Date | 01 December 2016 |
[2016] EWHC 3104 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Cotter QC
(Sitting as a High Court Judge)
Case No: HQ14P04224
David Sanderson (instructed by Slater & Gordon) for the Claimant
Derek O'Sullivan QC (instructed by Kennedys) for the Defendant
Hearing dates: 23, 24 and 25 November 2016
In the early hours of 17 th December 2011 when a group of people were drinking in the hotel lobby at Hilton Hotel in Watering Lane, Collingtree, Northants, Mr John Major, a director and shareholder of the Defendant company assaulted the Claimant, Mr Bellman, punching him twice and knocking him to the floor in the course of which his head hit the marble floor. As a result of the assault Mr Bellman suffered brain damage.
By this claim, brought against the Defendant company, Mr Bellman seeks damages on the basis that it was vicariously liable for the actions of Mr Major. Mr Major was no longer a Defendant by the time of the hearing as the view was taken by those advising Mr Bellman that he could not satisfy any judgment. He did not attend or give evidence.
The fact of the assault is not in dispute in this action. A flawed decision was taken not to proceed with the criminal charges laid against Mr Major and a complaint in relation to that decision has been upheld.
This hearing is limited to the issue of liability.
I shall first set out the matters that are not in dispute.
Mr Bellman was born on 24 April 1956 so was aged 55 the time of the assault.
John Major, his wife Beverley Major and Michael Geoghegan were directors and shareholders of the Defendant, a company running franchise offices of Drivers Direct, a national HGV driver recruitment organisation which placed commercial drivers with firms in need of temporary staff. John Major was the managing director. Mrs Major worked in the office but Mr Geoghegan appears to have played no part in the day to day operations of the business. The Defendant initially had offices in Leicester, Northampton and Nuneaton, but at some stage during 2011 the Leicester office closed.
In about October 2010, John Major offered Mr Bellman a job as a sales manager for the Defendant, and he took up that role in November 2010. His responsibilities involved the recruitment of drivers to the agency and placing them with clients of the agency. He was paid a daily rate of £80 and a commission based on the performance of the Defendant as a whole.
Mr Bellman and Mr Major had been friends since childhood. Mr Major is approximately three years younger than Mr Bellman. They attended primary and secondary schools together developed a strong friendship. When Mr Major first got married Mr Bellman and his wife took in the newlyweds as lodgers for two years.
At the time the Mr Bellman started his employment there were approximately eight members of staff although this number subsequently grew to eleven (including Mr and Mrs Major) working in two offices: Nuneaton and Northampton. A Mr Steve Kelly, was then recruited to work at the Northampton Office. As Mr Bellman recalled
"one day, all of a sudden and without any warning, Steve Kelly started working for Northampton recruitment Ltd. Word got around that he was being paid significantly more money than anyone else in the firm a number of us could not understand why that was the case. Steve Kelly was based the Northampton office. As I recall he started to work for the company approximately a month or so before Christmas party"
The Defendant's Christmas party took place at the Collingtree Golf Club in Northamptonshire. All members of staff (some drivers were technically employees, but would not have been considered as such by the majority of the staff), were invited, as were their partners.
In all 24 people attended. All members of staff were there, save for a gentleman called Joel, and each brought an additional partner, save for Mr and Mrs Major. Mr Major invited two guests: Mr Gethin Roberts, the owner of Drivers' Direct and Mr Andrew Blakesley, both of whom brought partners. The final two guests were Mr Major's two young children.
Other parties were also taking place at the golf club on the same evening.
The party was an ordinary or usual work Christmas party of the type no doubted dreaded by some and an annual highlight for others. Not surprisingly alcohol was consumed by many attending.
After the party at the Golf Club ended just over half of the guests went onto to the Hilton Hotel. Those that did not were Mrs Major, her two young children, Mr Ben Major and his partner and a lady called Val from accounts and her partner. It is not clear whether or not Steve Kelly and his partner initially went on. Thus between thirteen and fifteen of the 24 party guests went on to the Hilton, including either five or six or the Defendant's eleven staff. Most were staying at the Hotel, others such as Mr Major and Mr Bellman and his partner Ms Thomas were not. This was not a pre-planned extension to the party.
At 3 am or so in an unprovoked attack Mr Major assaulted Mr Bellman. His conduct was shameful and no doubt in part fuelled by alcohol. Mr Bellman was punched twice. On the second occasion he was knocked to the floor, stuck his head and was rendered unconscious with blood coming from his ears. One employee present, Mr Hancocks, feared that he was dead. He was taken to A&E where he was confused and uncooperative with a significantly impaired conscious level (CGS of 8/15). An initial CT scan revealed a skull fracture and extradural bleeding. He was taken to the neurosurgical service at the John Radcliffe Hospital in Oxford where a further scan revealed a left frontal lobe contusion with residual subdural and subarachnoid haemorrhage. He had also suffered a fracture of the right temporal bone and the left orbital floor. In order to relieve intracranial pressure he underwent a decompressive craniectomy and following that a further operation as intracranial pressure began to rise.
The brain injury sequalae include headaches, anosmia, fatigue, low mood, deficits in verbal reasoning, verbal memory and word finding, speech and language impairment. He is a protected party and lacks the capacity to litigate or manage his affairs. He is unlikely to return to any paid employment. There is a neuropsychological report from Dr Brooks following an examination on 20 January 2015 which sets out that Mr Bellman suffered "very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences". The opinion is that his thinking is simplistic and concrete and he believes there are real constraints on decision-making in relation to litigation and the management of money concluding he currently lacks capacity.
Although the fact of the assault was not in issue some matters of fact relevant to the issue of vicarious liability remained in dispute.
A useful starting point is the CCTV footage which gives valuable assistance as to exactly what happened before the second blow which caused the injury.
Mr Bellman could provide no useful evidence concerning the circumstances surrounding the assault due to his injuries. However Susan Thomas gave evidence on his behalf and reliance was placed upon the agreed statement of Mr Steven Tomlin.
The Defendant called James Harman and Hayley Thompson-Pettitt. They are both now living in Sydney, Australia and their evidence was given by video-link.
Mr Major was not called. In a police interview on 17 December 2011 he stated that an argument developed because of Mr Bellman's
"continual need or want to be in control of the Nuneaton office… as it were and I just don't believe at this point he would be ready for that".
He explained that at the time he struck Mr Bellman
"I believed he was in my face and so I lashed out to keep him away… I felt I was protecting myself. He went down. He got back up again and came towards me to people in between us as well. I hit him again because he was coming forward at that point he fell and hit his head."
He also stated that Mr Bellman was coming towards him with a look on his face, a staring look and that he was "moving towards me". That he thought Mr Bellman was going to hit him and he told the officer that he believed he was acting in self defence.
This version of events is plainly inconsistent with the CCTV coverage. I reject the notion of either provocation or self-defence with no hesitation. It was brutal assault comprising of two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike again at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense.
Not surprisingly Mr Major was charged with assault. On 15 May 2012 Mr Bellman gave a statement setting out that he could not remember anything about the incident as he had no memory of the events before until waking up in hospital. He stated that he been friends with Mr Major for forty years and was sure that it did not mean to cause him harm and could not see the point in prosecuting him as he did not want to ruin his life. I do not know what medical evidence was available at this time as to the effects of the accident upon Mr Bellman. There was certainly one statement from Dr Wade that stated that he had suffered significant brain damage with resultant cognitive dysfunction and that he would never function at his pre-injury level again. Given the totality of the evidence before me it seems highly likely that he would have presented as a man who had a degree of damage resulting from the accident. It would be reasonable to...
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