Idris Farah (by his litigation friend Fatuma Mohamad) v Ahmed Abdullahi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWHC 825 (QB) |
| Date | 08 April 2020 |
| Docket Number | Case No: HQ17P03107 |
| Court | Queen's Bench Division |
[2020] EWHC 825 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Linden
Case No: HQ17P03107
Mr Robert Weir QC (instructed by Irwin Mitchell LLP) for the claimant
Mr William Audland QC (instructed by Kennedy's Law LLP) for the second defendant
Mr Derek O'Sullivan QC and Mr Michael Standing (instructed by Horwich Farrelly) for the fourth defendant
Mr Tim Horlock QC (instructed by Weightmans LLP) for the fifth defendant
Hearing dates: 19, 20, 21, 24, 25, 26, 27, 28 February 2020
Approved Judgment
INTRODUCTION .
These proceedings arise out of events which occurred shortly after 3:30 am on Saturday 6 September 2014 on High Street, Harlesden, London NW10. In very brief summary, the claimant was a pedestrian on the High Street when he was involved in collisions with two cars: a Ford Focus driven by the first defendant and a Mercedes ‘A’ Class. The identity of the driver of the Mercedes is in dispute, but the claimant and the second defendant say that it was the sixth defendant.
As a result of these events, the claimant was left with severe head injuries. In addition to a fractured skull and abrasions and lacerations to the head, he suffered two types of brain injury: a coup/contrecoup injury and a severe Diffuse Axonal Injury (“DAI”) which has caused him very significant disabilities. The claimant lacks capacity to litigate and brings this claim by his litigation friend. He recalls nothing of the relevant events and has been unable to participate in the trial.
In August 2015, the first defendant pleaded guilty to causing serious injury to the claimant by dangerous driving, and driving whilst disqualified. He was sentenced to a total of 3 years and 11 months imprisonment by Harrow Crown Court.
The second defendant is, in effect, the insurer of the Ford Focus. Pursuant to Article 75 of the Articles of Association of the fifth defendant (“the MIB”), of which it is a member, the second defendant will be liable to pay any damages which are ordered against the first defendant and which the first defendant fails to pay the claimant within 7 days of the execution date of the judgment.
The fourth defendant is, in effect, the Article 75 insurer of the Mercedes. In the event that I find that the sixth defendant was the driver of that vehicle during the relevant events, the fourth defendant will be liable to pay any damages which are ordered against the sixth defendant and which he fails to pay within the specified period. If, on the other hand, I find that the sixth defendant was not the driver of the Mercedes, any damages which I would have ordered against the driver of that vehicle will be recoverable by the claimant from the MIB pursuant to the Untraced Drivers' Agreement of 7 February 2003, between the Secretary of State for Transport and the MIB, albeit by way of a separate claim to the MIB.
The claim against the third defendant, on the basis that the driver of the Mercedes was unidentified, was struck out by consent following the decision of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd (Motor Insurers' Bureau Intervening) [2019] UKSC 6; [2019] 1 WLR 1471that it is not permissible in law to bring proceedings for personal injury against a defendant who has not been served and is not aware of those proceedings.
Breach of duty by the drivers of the two cars is not disputed by any of the defendants. The issues in relation to liability relate to the question which defendant or defendants should compensate the claimant for which of his injuries. Accordingly, on 5 November 2018, Master Davison directed a preliminary hearing to determine:
“The issue of liability and causation (to include all indemnity issues and causation of all physical injuries)”.
Mr Robert Weir QC appeared for the claimant. Mr William Audland QC appeared for the second defendant. Mr Derek O'Sullivan QC appeared, with Mr Michael Standing, for the fourth defendant and Mr Tim Horlock QC represented the fifth defendant. The first and sixth defendant did not acknowledge service and have played no part in these proceedings.
PRELIMINARY MATTERS .
There were various preliminary matters which I dealt with before the evidence commenced.
First, there was an issue as to the involvement of the MIB in the trial. Mr Weir QC, on behalf of the claimant, made detailed submissions to the effect that I should not allow the MIB to participate in the trial, notwithstanding that it is a party, and/or that I should make a ruling that the MIB should not in any circumstances recover its costs from the claimant given that their interests are adequately protected by the second and fourth defendants.
Ultimately this issue was resolved by agreement and so it was not necessary for me to rule on Mr Weir's submissions. In reply to Mr Weir, having taken instructions overnight, Mr Horlock QC proposed that, on certain terms, he would play no further part in the trial. The solicitors instructed by the MIB would have a ‘watching brief’. Mr Horlock would also be notified by Counsel for the second and fourth defendants in the unlikely event that there was any material change in their cases. He would also be permitted to make submissions as to the terms of the final order, particularly in relation to costs, in the light of my Judgment. Mr Weir agreed to this approach and I was content with it.
Second, Mr Audland QC applied to amend the Defence of the second defendant in the terms of a draft dated 31 January 2020. This was uncontroversial and I gave permission.
Third, Mr O'Sullivan QC applied to amend the Defence of the fourth defendant in the terms of a draft dated 14 February 2020. Mr Weir did not oppose the application but Mr Audland took issue with two aspects of the proposed amendments. After argument I gave permission. My reasons are set out at Annex 2 to this Judgment.
Fourth, Mr Audland invited me to determine the identity of the driver of the Mercedes as a preliminary issue and/or at an early stage in the trial. This was contested by Mr Weir and Mr O'Sullivan. I refused Mr Audland's application. My reasons for doing so are set out in Annex 3 to this Judgment.
OUTLINE OF THE ISSUES AND HOW THEY ARISE .
Introduction
I was provided with an Agreed List of Issues which is at Annex 1 to this Judgment. I address all of these issues below, as well as other factual issues, although not necessarily in the order in which they are presented in that document. The commentary in this section of my Judgment is intended to explain those issues and how they arise.
The key events for present purposes arose out of an altercation between a number of young men who appear to have been drinking. To give a flavour of the situation immediately before the relevant events, the CCTV footage shows a group of in the order of 15 men roaming around the High Street in the small hours of the morning, mostly in the road itself, apparently shouting at each other, scuffling and fighting, occasionally throwing things at each other and disrupting the traffic. However, the details of the altercation and why it occurred are not relevant to the issues which I have to decide. The claimant had been drinking, and may have been involved in the altercation, but there is no longer any suggestion that he is to blame for any of his injuries.
For the purposes of identifying the issues between the parties, they have divided the events which led to the claimant's injuries into four phases in the evidence. The beginning and end of these phases overlap with each other, so they are not strictly a sequence, but it is helpful to divide the events up in this way for reasons which will become apparent.
Phase 1 .
In the first phase the claimant was standing with others near the Mercedes, which was parked on the High Street facing south east. The Ford Focus drove south east along the High Street, U-turned, picked up two passengers and then drove back north west along the High Street in the direction of the parked Mercedes. The Ford Focus then crossed into the wrong lane, overtook two cars and a bus and drove in a snaking movement, with lights off, at the claimant's group. The claimant, who was facing the oncoming Ford Focus, and his companions took evasive action (“Phase 1”). It is common ground that, in Phase 1, the first defendant was deliberately driving at the claimant's group with the intention of causing injury to him.
The claimant sustained a fracture to his right tibial plateau at some stage during the relevant events and there is an issue between the parties as to whether this injury was caused by his being struck by the Ford Focus during Phase 1, or whether he sustained this injury later in the sequence of events. The claimant's case, which is supported by the fourth defendant, is that this injury was sustained in Phase 1 or alternatively Phase 4 and that, in either event, the driver of the Ford Focus, and therefore the second defendant, is liable. The second defendant's case is that the Ford Focus did not strike the claimant in Phase 1: the claimant's knee injury was sustained in either Phase 3 or alternatively Phase 4.
It is common ground that the claimant did not sustain any other injury during Phase 1.
Phase 2
In the second phase, the Mercedes moves forward from a stationary position behind and to the left of the claimant,...
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