Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris) (Claimant/1st Respondent) v (1) Damian Smith (1st Defendant/2nd Respondent) (2) The Motor Insurers' Bureau (2nd Defendant/3rd Respondent) (3) Darren Michael Bell (3rd Defendant/Appellant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Underhill,Lord Justice Christopher Clarke |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWCA Civ 380 |
| Docket Number | Case No: B3/2014/0055 and B3/2014/1173 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 2015 |
[2015] EWCA Civ 380
Lord Justice Richards
Lord Justice Underhill
and
Lord Justice Christopher Clarke
Case No: B3/2014/0055 and B3/2014/1173
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Keith
[2013] EWHC 3620 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Grime QC and Richard Whitehall (instructed by DWF Solicitors) for the Appellant
Christopher Melton QC and Simon Kilvington (instructed by Slater and Gordon (UK) LLP) for the 1 st Respondent
The 2 nd and 3 rd Respondents did not appear at the hearing of the appeal
Hearing dates: 4–5 March 2015
Introduction
The background to this case is set out very clearly in the opening paragraphs of the judgment of Keith J in the court below:
"1. Some years ago the police in Carlisle were receiving a number of complaints about trials bikes, the sort used in scrambling. They were being ridden dangerously in an area to the west of the city. It was decided to mount a special operation to monitor the extent of such incidents. It was only a month after this operation was discontinued that the accident which gave rise to this claim took place. That was on 31 January 2007. It involved a trials bike which had been stolen or unlawfully taken and was not allowed on normal roads. It was being ridden far too fast on a path reserved for cyclists by a 16 year old boy who did not have a driving licence or insurance. He was carrying a pillion passenger, another 16 year old boy, even though the bike was not designed for passengers. Neither of them were wearing helmets. Both boys were seriously injured in the accident, the boy who was the passenger particularly so. It is he who brings this claim through his mother and litigation friend. His name is Daniel McCracken.
2. The boy who was driving the bike is Damian Smith. He is the first defendant. He has not been represented, and although he was present during the trial, he has taken no active part in it save for giving evidence. Because his riding of the bike was uninsured, and he has no assets of his own to speak of, any judgment which Daniel obtains against Damian will be valueless, and the Motor Insurers' Bureau ('the MIB') has been joined as the second defendant. The third defendant, Darren Bell, was the driver of the minibus which was involved in the accident. Mr Bell disputes that he was negligent in any way. There is no doubt that Damian's riding of the bike was negligent, but the MIB resists the claim against it on the basis that Daniel's participation in Damian's wrongdoing should disentitle him from being compensated for his injuries. At the very least, the MIB argues that Daniel himself was at fault, and that his damages, if any, should be discounted to reflect his own contributory negligence. Agreement has been reached that the reduction in Daniel's damages because of his failure to wear a helmet should be 15%, but the possibility of a significantly greater finding of contributory negligence exists depending on how blameworthy Daniel was (if at all) in allowing himself to be a pillion passenger on the bike. The MIB also resists the claim on the basis that its liability has been excluded because Daniel knew or ought to have known that the bike had been stolen or unlawfully taken and that it was being used without insurance."
In the event, the judge's primary findings, as set out in his judgment, were as follows:
i) Damian was liable to Daniel in negligence.
ii) As regards the MIB, (a) the defence of ex turpi causa non oritur actio did not succeed in respect of Daniel's claim against Damian or, therefore, against the MIB; (b) the MIB had failed to prove that Daniel knew or ought to have known that the bike had been stolen or unlawfully taken; but (c) the MIB had proved that Daniel knew that the bike was being used without insurance, so that the MIB's liability was excluded by clause 6.1(e)(of the Uninsured Drivers' Agreement under which the MIB had agreed with the Secretary of State to satisfy judgments in respect of injuries caused by uninsured vehicles.
iii) As regards Mr Bell, (a) since the defence of ex turpi causa had been rejected in relation to Damian and the MIB, it was not necessary to consider whether it was available to Mr Bell; (b) Mr Bell had driven negligently; but (c) as to contributory negligence, Daniel's damages should be reduced by 45% (including the agreed 15% for failure to wear a helmet) to reflect his own responsibility for his injuries.
In subsequent written notes the judge dealt with a number of consequential matters. They included an apportionment of liability between Damian and Mr Bell, in the ratio of 80% to 20%. They also included a ruling that the MIB was entitled to 90% of its costs and that those costs should be paid by Mr Bell (as the unsuccessful co-defendant) rather than by Daniel.
Mr Bell now appeals to this court against (1) the judge's rejection of the defence of ex turpi causa; (2) the finding that Mr Bell was negligent; (3) the judge's reduction in damages by 45%, rather than a substantially higher figure, on account of Daniel's contributory negligence; and (4) the ruling that the MIB's recoverable costs be paid by Mr Bell rather than by Daniel.
The facts in greater detail
At paragraphs 5–40 of his judgment the judge examined the evidence and made detailed findings of fact. I will pick out some of the key findings.
The special operation which the police mounted in Carlisle to monitor the extent to which trials bikes (i.e. motor cycles not adapted or suitable for road use) were being ridden dangerously in and around the town was called Operation Minx and commenced in February 2006. The intelligence gathered by the police was that the road in which Daniel's family, the McCrackens, lived – and in particular the cul-de-sac in which the family lived – was the centre of much of the activity. It was where the bikes disappeared when followed or chased by the police.
The kind of activity the police were monitoring could be seen on video footage posted on YouTube on 13 October 2006. The footage showed a number of people driving dangerously on trials bikes, doing "wheelies" and other manoeuvres. The streets were identified as streets in Carlisle, and the footage ended in the road where the McCrackens lived. At one point the face of a boy could be clearly seen, but the judge rejected a suggested identification of the boy as Daniel's younger brother.
During Operation Minx itself there was no intelligence that Daniel had been involved in the activity. But on 7 January 2007, about three weeks before the accident, a police officer investigating reports of people riding trials bikes in an area of west Carlisle saw Daniel astride a bike in circumstances that caused him to visit Daniel at home later that day and, in effect, to warn him about the use of the bike. The judge found that the likelihood was that Daniel had been riding one of the bikes on the road that day and that the probability was that he rode trials bikes on the road in Carlisle on other occasions. He also found that Damian was likely to have been correct when he said in cross-examination that Daniel had ridden trials bikes on the road about as often as he, Damian, had done. The judge stressed, however, that "the fact that Daniel had been in the habit of riding bikes on the road in Carlisle does not mean that he had necessarily ridden them in the dangerous way depicted on the YouTube footage".
The bike being ridden at the time of the accident was a green Kawasaki 85cc bike which had been stolen over a year earlier from an outbuilding in a remote part of Cumbria. It was an off-road competition bike, designed to carry a single rider and not a pillion passenger. The presence of a pillion passenger on it would have affected the stability of the bike and the efficiency of its brakes. It was not in dispute that it was one of the bikes seen on the YouTube footage. The judge found it likely that the bike was kept by one or other of the McCrackens. The probability was that it had been used recently in Carlisle, which was why it had been at the McCrackens' home on the day of the accident.
The accident took place at about 2.30 pm on Wigton Road, Carlisle, at the entrance to Morton Community Centre. On the stretch of road in question the speed limit was 30 mph and the road had a single lane in each direction. There were cycle paths on both sides of the road, between the road and the pedestrian footpath. They were separated from the road and the footpath by a green verge on either side of them. Where the cycle path crossed the entrance to the community centre, there were double broken white lines informing cyclists that they had to give way to other traffic.
The accident occurred when the bike which Damian was riding, with Daniel as his pillion passenger, collided with the minibus driven by Mr Bell. The bike was being ridden on the cycle path on the southern side of Wigton Road towards the city centre. The minibus had been travelling towards the city centre and was turning right into the community centre. The bike collided with the offside of the minibus near the driver's door. The circumstances of the collision itself are considered in greater detail later in this judgment, when I come to...
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