Flabio Guianni Flaviis v Malcolm Charles Pauley Leslie William Morriss (Trading as Banjax Bike Hire)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nelson |
| Judgment Date | 29 October 2002 |
| Neutral Citation | [2002] EWHC 2886 (QB),[2002] EWHC J1029-1 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ 0101579 |
| Date | 29 October 2002 |
[2002] EWHC J1029-1
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Honourable Mr Justice Nelson
Case No: HQ 0101579
Michael Tillett QC (instructed by Royds RDW, Solicitors) for the Claimant
David Melville QC and Rohan Pershad (instructed by Taylor Wessing, Solicitors) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this Version as handed down may be treated as authentic.
Mr Justice Nelson
The Defendant's application is to re-open the issue of liability which had been conceded by letter dated 10.10.01 in a claim arising out of a serious road traffic accident which occurred on the 22 nd April 1998. The Defendants paid �702,421.80 into court on 14 February 2002. It was accepted six days later, whilst the defendant's employment expert, Mr Green, was in Brazil making enquiries into the Claimant's academic success in view of the Defendants belief that he was exaggerating his claim for loss of earnings.
Mr Green's report revealed that the Claimant had lied about his claim, his age, his prospects and his entitlement to be in the UK. In fact he was an illegal immigrant who had overstayed his limited permission of five days to remain here granted on 11 December 1995.
The Claimant has conceded that the stay, which was automatically imposed when he accepted the money paid into court, should be lifted, and that the money taken out on his behalf should be retained by his solicitors and repaid. The only issue before me was whether the Defendants should be entitled to litigate the question of liability as well as quantum, or as the Claimant asserts, only quantum.
THE FACTS
The Claimant arrived in England on 11 December 1995. He was born in Brazil on 30 May 1977. His Brazilian name is Wires De Silva. He arrived in England with a valid Brazilian passport but was only permitted to enter for five days. He failed to report for his return to Brazil and has lived in England, apart from a visit home to Brazil, ever since.
He obtained a stolen Italian passport which he purported to be his. The passport showed his name as Fabio Guianni Flaviis, his date of birth to be 30 May 1975 and his place of birth to be in Brazil. The passport was stolen in Naples. It purported to be valid from January 1997 to January 2002. The Claimant has now obtained a new Italian passport to which he is also not entitled, purporting to be valid from 2002 for five years. He also obtained a stolen Italian driving licence, which gives his name as Flaviis, his date of birth as 30 May 1975 but his place of birth to be Parete, Caserta in Italy.
These documents, a stolen Italian passport, and the stolen Italian driving licence, enabled the Claimant to present himself as an EU National, entitled to be and remain in the UK. Once he had created the lie in order to be able to stay in England, the Claimant then had to live the lie so as to ensure that his true identity did not cause him to be removed to Brazil.
As a consequence the Claimant has deceived many as to his true identity and in the course of doing so, has lied to the court about his identity and the circumstances in which he came to have an Italian passport and an Italian driving licence. He lie permitted his school records to be falsified so that they coincided with the name on his Italian passport, which was also the name in which he brought these proceedings. The extent to which he has exaggerated his scholastic achievements, his prospects and hence his claim will be for a court to determine on the issue of quantum, but his now admitted lies as to his identify, his age and his possession and use of stolen documents go to the heart, the Defendants submit, of his claim on liability, based as it is on the contract of hire of the motor cycle he was riding at the time of the accident, which he obtained by fraudulent misrepresentation.
TITLE CLAIM
The Claimant was working as a motor cycle courier. In place of his own machine which was out of service, he hired a motor cycle for the purposes of his work on 30 March 1998 from the Defendants. In doing so he presented the stolen driving licence and an insurance certificate which, by virtue of the fact that the claimant did not hold a valid driving licence, was itself invalid. The evidence from the Defendants is that if the true situation had been known the motor cycle would not have been hired to the Claimant.
Each week during the course of the hire, the Claimant took the machine to the Defendants for a check and service. On the 21 April 1998 the Defendants issued an MOT certificate in respect of the machine which the Claimant was hiring, certifying that at the date of that examination the requirements of the regulations made under Section 45 of the Road Traffic Act 1988 were satisfied.
On the following day, 22 April 1998, the Claimant was riding the motor cycle along the M1 when he lost control of it and fell off. The independent evidence suggests that he was travelling at some 60 mph and that he began to slide along the road with the bike on top of him after he had fallen off. It may be that a lorry ran over him while he was lying in the roadway. He sustained very serious injuries to his right leg, as a result of which it had to be amputated later that day.
The two lorry drivers, Mr Savage and Mr Paull who were also travelling North along the M1, saw the motor cycle clearly struggling to maintain control. Mr Paull noticed the front wheel of the motor cycle start to wobble and when the motor cyclist was ten to fifteen yards in front of him there was a big wobble, the wheel came around square to the front of the bike and the rider came off. Mr Paull had first seen the motor cyclist when he had come alongside his vehicle which was travelling in the centre lane, the motor cycle being some 6ft or so away from him. He noticed when the front wing started to wobble and thought that it was odd that it had done so as the motor cyclist had not hit anything and the road surface was smooth and okay
When the motor cycle was subsequently examined after the accident by the Police Vehicle Examiner, Mr D.J. Batchelor, it was found that the machine was in a 'totally un-roadworthy condition' due to severe corrosion of the machine's frame and the condition of the front road bearings. The rear swing-arm was affected by the corrosion with the result that the machine's rear road wheel was mis-aligned with the rest of the machine. Wear in the front wheel bearings allowed excessive side to side movement of the road wheel in relation to the spindle. The machine was in such poor general condition that the vehicle examiner was unable to find any specific defect that would have caused the rider to lose control. He said the defects were apparent to whoever was responsible for the machine's maintenance. The Claimant's expert, Mr Willoughby, of Peter Graham Associates, found the motor cycle to be in a dangerous condition, not fit for road use because of the corrosion of the rear swing arm and degree of movement in the front road wheel. The condition of the front wheel hearing, prior to its collapse, would have produced vibration to the steering, and the rear wheel mis-alignment would have affected the stability of the motor cycle.
The Defendants did not serve an expert report in reply. When they admitted liability they had in their possession a statement from Mr Richards, another lorry driver travelling North along the M1 at the relevant time who had seen the Claimant riding past on his motor cycle at about 70�80 mph and had noticed him again before finally coming across the accident scene where he saw him lying in the middle of the road. He describes in his statement how some 50�65 minutes before coming across the accident scene, the Claimant had ridden so close to his lorry that he was able to and had, run his finger along the side of the lorry. He had done that when a Transit van had also been overtaking the lorry. Mr Richards had also seen the Claimant using his mobile telephone whilst riding. The Claimant had run his finger along the side of Mr Richards lorry twice, and on the first occasion after the motor cycle had gone past his lorry its rider waved to him. It was about half an hour after the second incident that Mr Richards came across the scene of the accident.
The Defendants had sought to argue in correspondence that the Claimant was guilty of some 25% contributory negligence and made a Part 36 offer to...
To continue reading
Request your trial
-
Stoke on Trent city council v John Whalley (sic)
...admission. The judge was referred to and followed a line of authority including Gale v Superdrug [1996] 1 WLR 1089 and Flaviis v Pauley [2002] EWHC 2886 QB. 8 In Gale, the defendant had admitted liability before action but, when proceedings were begun shortly before the limitation period ex......
- Burden v Harrods Ltd