John McHugh (Administrator of the Estate of Christine McHugh (Deceased) v Ophelia Okai-Koi and Another
| Jurisdiction | England & Wales |
| Judge | Mr David Pittaway QC |
| Judgment Date | 31 March 2017 |
| Neutral Citation | [2017] EWHC 1346 (QB) |
| Docket Number | Case No: HQ16P00097 |
| Court | Queen's Bench Division |
| Date | 31 March 2017 |
[2017] EWHC 1346 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Pittaway QC
(Sitting as a Judge of the High Court)
Case No: HQ16P00097
Cyrus Katrak (instructed by Irwin Mitchell) for the Claimant
Brian McCluggage (instructed by Horwich Farrelly) for the Defendant
Hearing dates: Tuesday 28 th and Wednesday 29 th March 2017
Introduction
This action arises out of a tragic accident on 4 th March 2013 when Mrs McHugh sustained fatal injuries in East Barnet Road, London. At the time of the accident Mrs McHugh was sitting on the bonnet of an Insignia motor car being driven by Mrs Okai-Koi out of the Lord Kitchenor public house car park. Mrs Okai-Koi turned right onto the main road where almost immediately there is a pedestrian crossing. Mrs McHugh slipped off the bonnet and struck her head on a Belisha Beacon situated on the pavement. She sustained serious head injuries from which she died. On 6 th June 2014 Mrs Okai-Koi was acquitted by a jury at the Harrow Crown Court of causing death by dangerous driving but convicted of causing death by careless driving. She was sentenced to 12 months' imprisonment.
The Evidence
The incident arose out of an altercation between Mr and Mrs McHugh, primarily Mrs McHugh, and Mrs Okai-Koi in the car park of the public house. Mrs Okai-Koi had parked her motor car in the car park for a short period whilst she went shopping at Sainsbury's supermarket on the other side of the main road. Mr and Mrs McHugh had been drinking that afternoon in the public house and were inebriated. Mr McHugh arrived at the public house at about 3.30pm and Mrs McHugh arrived about one hour later. Mr McHugh collected his son from school before he went to the public house. He later left the public house to drive to his sister's house close by to collect his nine-month old baby daughter. At about 5.30 pm they met Mr Marriott, Mrs McHugh's nephew, in the public house and celebrated his first day in a new job. Mr Marriott believes he had two pints of lager. He estimates that Mr and Mrs McHugh each had two to three pints of lager during the time he was in their company.
At about 6.30 pm Mrs McHugh offered to drive the family, including Mr Marriott, home. They went out into the car park shortly before Mrs Okai-Koi returned from her shopping expedition. Mr and Mrs McHugh's motorcar was parked in an area where there were two designated bays, their car was facing outwards into the car park. On the driver's side, there was a raised cobbled area; on the passenger's side Mrs Okai-Koi had parked her motor car also facing outwards into the car park. Mr and Mrs McHugh experienced some difficulty getting into their car because of its closeness to Mrs Okai-Koi's motor car, primarily Mr McHugh accessing the baby seat through the rear door of the passenger side. There is conflicting evidence as to whether it was Mr or Mrs McHugh who raised the issue with Mrs Okai-Koi as to whether she was entitled to park in the car park when she was not a customer at the public house. Mrs Okai-Koi told them to "Piss off" before getting into her motor car. Mrs McHugh moved her car partially out of the parking space to obtain sufficient access for Mr McHugh to put their baby daughter into the rear baby seat. Mrs Okai-Koi's route out of the car park was partially blocked. She had to carry out a three point turn to negotiate a route to the exit onto the main road. Mrs Okai-Koi says that Mrs McHugh got out of her car and started abusing Mrs Okai-Koi, shouting "Come out, let's get physical", kicking the side of the motor car and trying the door handles. She says that she had to drive over the cobbled area; Mr Marriott says that she drove in front of Mr and Mrs McHugh's motor car.
Mrs Okai-Koi says she stopped at the exit; a pedestrian who drew a plan in the police report shows the car short of the exit. She says she stopped to put on her seatbelt and to collect her thoughts. Both Mr and Mrs McHugh appear to have believed that Mrs Okai-Koi was deliberately blocking their exit from the car park. Mr Marriott says that Mrs Okai-Koi was not there for more than a minute before the altercation began again. There is conflicting evidence as to whether it was Mr or Mrs McHugh who went up to Mrs Okai-Koi but it may have been in response to their realization that she was using her mobile phone to phone the police. Mrs McHugh circled the car, railing abuse at Mrs Okai-Koi, repeatedly kicking the motor car and trying the door handles. Mr McHugh walked up to the driver's side and started banging on the window, shouting and swearing. Mr McHugh tried to get his fingers into a small section of the window that Mrs Okai-Koi had wound down to tell him that she was phoning the police. Mr McHugh says that they believed that Mrs Okai-Koi was deliberately blocking their exit from the car park. Mrs Okai-Koi saw Mr McHugh run to the back of the motorcar. She thought he had gone to get something to break into the motor car. She says that she was terrified and was in a full-blown panic and needed to flee the scene. Mrs McHugh, who was a large lady, climbed onto the bonnet, possibly on and off several times, as if to prevent Mrs Okai-Koi from leaving the car park. Mrs Okai-Koi described her state of mind as "fight or flight".
Mrs Okai-Koi then panicked and drove off out of the car park, knowing that Mrs McHugh was on the bonnet of the motor car. She says that she checked the road left and right before moving off in first gear, turning right onto the main road. Almost immediately as she turned onto the pedestrian crossing, Mrs McHugh slipped off the bonnet and struck her head on the Belisha beacon, sustaining fatal injuries. The accident reconstruction report prepared by Mr Stephen Sayer, a retired police officer, considers that Mrs Okai-Koi was travelling at about 10 to 15 mph. Mrs Okai-Koi did not stop after the accident and drove to a friend's house. She says that she was unaware that Mrs McHugh had been injured or killed. She was in a state of shock and did not realize she was driving in first gear for several hundred yards. When she was interviewed, she read a short statement prepared by the on-duty solicitor and gave a "no comment" interview. She gave evidence at the Crown Court trial, a transcript of which was available to me.
Findings of Fact
Mr McHugh gave his evidence in a dignified manner but, perhaps understandably, has a patchy recollection of events, no doubt because of the tragic accident that occurred and his own intoxication. He does not, for example, have any recollection of driving to collect his baby daughter from his sister's house or, indeed, his daughter being present at the scene. Where there is a difference between the evidence of Mr McHugh and Mr Marriott as to what occurred, I prefer the evidence of Mr Marriott who gave his evidence in a straightforward and careful manner. He did not seek to minimize Mr and Mrs McHugh's state of intoxication or the events that occurred. I am also satisfied that Mrs Okai-Koi gave a truthful account of the events that she saw from her own perspective. Where there were differences between what she said at the criminal trial and this court, I accept the evidence that she has given before me.
From the evidence that I have heard I am satisfied that both Mr and Mrs McHugh, particularly Mrs McHugh, were very intoxicated at the time of the incident. Mr McHugh admits to having drunk three pints of strong lager and says that he drinks about one pint an hour. It is possible that he had drunk more but I am unable to say how much. Mr Marriott said that his uncle was drunk and unfit to drive a motor car. He says that Mr McHugh had two to three pints of lager whilst he was in their company. Mr McHugh is unable to say how much his wife had drunk because she had been talking to her own circle of friends in the public house. Mr Marriott described her as being very drunk. The subsequent forensic analysis showed that she had 137mg/ml of alcohol in her bloodstream, one and a half times over the drink drive limit.
I consider that it was probably Mr McHugh who first raised with Mrs Okai-Koi the question of whether she had parked too close to their motor car. In fact, on the driver's side Mrs Okai-Koi could get in and out of her motor car. I suspect that the real problem was the access to the baby seat on the rear passenger side. Although Mrs Okai-Koi's response was unhelpful in telling Mr McHugh to "Piss off", I am satisfied that Mrs McHugh became the protagonist of the altercation that then followed with Mrs Okai-Koi. Mr Marriott agreed in evidence that his aunt reacted disproportionately to the circumstances because of her own intoxication. I have not heard any evidence to suggest that after Mrs Okai-Koi's initial exchange with Mr McHugh, she responded to the sustained abuse and actions, largely of Mrs McHugh, and to a lesser extent of her husband. There is a suggestion that at one stage she may have raised her fist or two fingers at Mr and Mrs McHugh, however, the evidence overall is that she remained calm and, as she says, tried to avoid eye contact with either of them.
I am satisfied that initially Mrs McHugh was abusive towards Mrs Okai-Koi and kicked the car on several occasions and tried the door handles. I am also satisfied that she was spoiling for a fight and said words to the effect "Come out, let's get physical", otherwise I can see that there would have been no good reason to try the door handles....
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