Daryl Owens v Ross Lewis

Hearing dates: 13 and 14 March 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 19 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HIS HONOUR JUDGE Keyser KC

JudgeKeyserKC:

Introduction

On 6 August 2020 the claimant, who was then aged nearly 16 ¹/₂ years (he had recently completed his schooling) and is now aged 20 years, was one of three passengers on a quad bike being driven along a public highway by the defendant, a friend of his, when he came off the quad bike and suffered serious injury, including a traumatic brain injury. The defendant, who at the time of the accident was aged 15 years and was shortly to enter his final year at school, later pleaded guilty to charges of causing serious injury by dangerous driving, using a motor vehicle on a public road without third-party insurance, and driving a motor vehicle otherwise than in accordance with a licence.

These proceedings were commenced on 4 July 2022. The claimant claims damages from the defendant for negligence. By an order dated 26 May 2023 District Judge Roberts directed that there be a trial of the preliminary issue of liability (including contributory negligence). This is my judgment after that trial.

By his amended defence dated 20 June 2023 the defendant admitted primary liability on the basis that he was negligent in permitting the claimant to travel as a passenger on the quad bike, which was not intended to carry passengers. He denied, however, that he was negligent in the other respects alleged, in particular as regards the manner in which and the speed at which he drove the quad bike.

The defendant avers that the claimant was contributorily negligent in that he: (i) agreed to be carried on a quad bike that was not designed to carry passengers; (ii) positioned himself on the quad bike in such a way as to be vulnerable to coming off it; and (iii) did not wear a motorcycle helmet. The submission on his behalf is that a deduction of 65% ought to be made for contributory negligence.

The claimant accepts that he was at fault in agreeing to be carried as a passenger on the quad bike and that this fault was increased by the fact that he was not wearing a helmet. However, the submission on his behalf is that the deduction to be made for contributory negligence ought not to exceed 20%.

The Accident: evidence and facts

It is unnecessary to recite at length the details regarding the accident. There is no basic dispute as to what happened; the summary given above will suffice, and I shall focus on those matters that appear to be relevant to the issues before me.

The claimant's written evidence was to the following effect. On the day of the accident he received a telephone call from the defendant and another friend, Scott Evans, who asked him if he fancied going rabbiting that evening. He did fancy it. They arranged to meet at the defendant's farm and then to go rabbiting at the farm of Scott Evans' grandfather. (There is an issue, which I regard as unimportant, as to whether the intended location was in fact the farm at which Scott Evans lived rather than his grandfather's farm.) The claimant arrived at the defendant's farm at about 6.45pm; he had with him his two terriers, which he was going to take rabbiting. When he arrived, the defendant and Scott Evans and the defendant's younger sister were there. They had a quad bike with them.“I said to [the defendant] I thought we would be walking over to Scott's farm. They said just to jump on the bike, it will be quicker. At first, I protested but in the end I relented because they were all adamant it was quicker and insistent I should just get on the bike.”1 There was no discussion concerning helmets. The defendant sat on the large driver's seat, with his sister behind him but also on the seat. The claimant and Scott Evans sat behind, more or less back-to-back, the claimant looking out to the left and Scott Evans looking out to the right, each of them holding one dog. The claimant was holding a dog in his right arm, and with his left hand he held onto the metal bar forming part of the rack that ran along the back of the quad bike. The claimant had believed that they would take a route across the fields to Scott Evans' grandfather's farm but was surprised when the defendant rode the quad bike straight down the track and out onto the main road. The claimant's witness statement did not describe the accident itself. In cross-examination he said that he had no recollection of it or of how it occurred, though he recalled the journey up to the point of the accident.

There is CCTV footage, which shows the claimant arriving at the defendant's farm with his dogs and, after a short conversation just out of shot, getting onto the quad bike. It shows the quad bike leaving the farm at 6.48pm with the defendant and his three passengers and three dogs, one held by each passenger. The positions of the three passengers are clearly visible from the footage and from a helpful still taken from it and are essentially as the claimant described in his witness statement. He and Scott Evans were sitting on the rear rack, behind the driver's seat, the claimant on the nearside and Scott Evans on the offside, and they were facing not directly forwards but at an angle of roughly 45 degrees. The claimant's left leg can be seen hanging down towards the ground at a position between the front and rear nearside wheels but nearer to the rear wheel. The footage shows the quad bike driving down the track or driveway at the defendant's home and turning right onto the B4390 road. It shows the defendant alone returning on the quad bike about three minutes later, followed shortly afterwards by his sister and Scott Evans on foot.

The main significance of the CCTV footage is that it proves, at least to my satisfaction, that the claimant has no reliable memory of the circumstances of the accident, let alone of the accident itself. In cross-examination he confirmed that his present recollection was the same as the account he gave to the police when interviewed some six weeks after the accident, when, after having previously suffered from amnesia, he claimed to have recovered a clear recollection of the incident. That account described the journey to Scott Evans' grandfather's farm and said that, after they had spent about 40 minutes rabbiting there, the accident had happened on the return journey, when the defendant was driving too quickly as the quad bike went over bumps on the road. As the claimant readily accepted both in his witness statement and in cross-examination, that account must be wrong: the accident happened within moments of the quad bike leaving the defendant's farm; there was no rabbiting and no return journey. Yet the account given to the police remains (as I accept) the claimant's recollection of what happened.

In cross-examination, the claimant maintained the correctness of the evidence in his witness statement regarding the conversation before he got onto the quad bike (which is neither confirmed nor refuted by the CCTV footage) and the manner in which he was holding onto the bar on the rack at the back of the quad bike (which is confirmed by the

Both the defendant and Scott Evans gave evidence regarding the accident and its circumstances. They both said that there had been no conversation about walking to their destination and that the claimant had shown no reluctance to ride as a passenger on the quad bike. They accepted that there were no helmets and that there was no discussion about helmets. They said that they did not know how the accident had occurred. Scott Evans stated: “We were driving along and one second [the claimant] was sitting on the quad, the next he was gone. I have no idea how he came off the quad.” The defendant, who was facing forwards and had the claimant behind him, did not see what happened. Both the defendant and Scott Evans said that the accident had occurred after the quad bike had passed the brow of a hill but before it reached a “bumpy” part of the road.

As regards the speed at which the quad bike was travelling, Scott Evans stated in his witness statement that it was “faster than a walking speed” but that he “[could not] say how fast in numbers.” When cross-examined, he said that he could not comment on the speed. His witness statement also...