Kelly Wallett (on her own behalf and on behalf of the dependants of Ian Hill (Deceased)) v Michael Vickers
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 14 November 2018 |
| Neutral Citation | [2018] EWHC 3088 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: 2SE90016 |
| Date | 14 November 2018 |
[2018] EWHC 3088 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
ON APPEAL FROM
THE COUNTY COURT AT SHEFFIELD
Mr Recorder Kirtley
Leeds Combined Court
1, Oxford Row, Leeds, LS1 3BG.
Mr Justice Males
Claim No: 2SE90016
Mr Darryl Allen QC and Mr Jason Wells (instructed by Malcolm C Foy & Co) for the Appellant/Claimant
Mr Tim Horlock QC, Mr Richard Whitehall and Mr Andrew Axon (instructed by Berrymans Lace Mawer LLP) for the Respondent/ Defendant
Hearing date: 7 November 2018
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.
Introduction
Two motorists drive alongside each other on a dual carriageway at speeds approaching twice the speed limit, each determined to be the first to reach the point where the road narrows to a single lane and refusing to give way to the other. As the road begins to narrow, the motorist in the inner lane loses control of his vehicle and collides with other vehicles on the opposite carriageway, sustaining fatal injuries. His partner brings a claim for damages under the Fatal Accidents Act 1976. In order to succeed it must be shown that the deceased would himself have been entitled to succeed in a claim for damages for negligence against the other driver. Issues of causation, ex turpi causa and contributory negligence arise.
These in outline are the tragic but perhaps not unusual facts of this case. In the County Court at Sheffield Mr Recorder Kirtley dismissed the claim, holding in an extempore judgment that the defendant's driving caused (in the sense that it made a material contribution to) the fatal injuries sustained by the deceased, but that the claim was barred by the principle of ex turpi causa because the parties were engaged in the criminal joint enterprise of dangerous driving on a public road.
The claimant appeals, contending that a criminal joint enterprise requires not only encouragement or assistance by one defendant in the commission of an offence by the other, but also an intention to encourage or assist, and that there was no valid basis on which the Recorder could conclude that the deceased intended to encourage the defendant to drive dangerously. Mr Darryl Allen QC submits on her behalf that the Recorder was therefore wrong to hold that the claim was barred by the ex turpi causa principle; instead he should have held that the deceased's own fault could properly be taken into account by a substantial reduction for contributory negligence.
The defendant contends that the question whether the parties were engaged in a criminal joint enterprise is irrelevant. The deceased was himself guilty of a serious criminal offence, namely dangerous driving, which constituted “turpitude” for the purpose of the ex turpi causa principle, and that as any claim by him would be founded on this turpitude such a claim would be barred. Alternatively, the Recorder found and was entitled to find that the deceased did intend to encourage the defendant to drive dangerously.
The facts
On 16 th April 2009 the deceased and the defendant were driving along Bawtry Road in Doncaster, a dual carriageway in an urban residential setting with a 40 mph speed limit. The deceased had two passengers, children then aged 8 and 4 respectively. Driving conditions were good. It was daylight and dry. There was little or no other traffic on the road travelling in the same direction. The defendant in the outer lane was slightly behind the deceased who was in the inner lane but accelerated as if to pass him. The deceased responded by accelerating and as both vehicles drove alongside each other they accelerated to speeds of the order of 70 mph to 80 mph. Each vehicle remained in its lane, neither swerving towards the other. There was no communication between the two drivers who did not know each other. Each was attempting to be the first to reach the point where the road narrowed to a single lane, with neither yielding to the other, although there was ample opportunity for either of them to have allowed the other to move ahead. As they approached the single lane, the deceased was slightly ahead of the defendant. As he entered the stretch of road where the dual carriageway began to narrow and there was a right hand bend in the road, he lost control of his vehicle and swerved across the central reservation into two vehicles on the opposite carriageway. The deceased sustained fatal injuries. The two children in his vehicle were also seriously injured. The defendant's vehicle was not involved in the collisions.
The whole incident lasted no more than a few seconds.
The defendant was prosecuted for causing death by dangerous driving. He was acquitted of this offence, but was found guilty of dangerous driving and was sentenced to 6 months imprisonment and disqualification from driving for 12 months.
In this action the claimant seeks damages for bereavement and loss of dependency under the Fatal Accidents Act 1976. The quantum of the claim, subject to liability and contributory negligence, is agreed at £215,000. Other claims, including by the injured children, do not fall for consideration in this action.
The issues in the court below
It is important to understand how the case was put in the court below.
The claimant's pleaded case was that the defendant's dangerous driving, racing with the deceased, caused or contributed to the deceased's loss of control of his vehicle so as to give rise to liability for negligence. The defendant denied liability, contending that (1) his driving did not cause or contribute to the deceased's loss of control, (2) the claim was defeated by the doctrines of (a) ex turpi causa and/or (b) volenti non fit injuria, and (3) alternatively there should be a substantial reduction in any damages for the deceased's own contributory fault.
It is unnecessary to say anything further about volenti. This defence has not been pursued.
The defence of ex turpi causa was further explained in the defendant's opening skeleton argument for the trial. This made clear as I read it that the defendant's sole argument under this heading was dependent on proof of a criminal joint enterprise between the deceased and the defendant whereby the deceased had encouraged the defendant to drive dangerously. Thus the relevant section of the skeleton argument began by accepting that the fact that the deceased had driven dangerously did not bar the claimant's claim:
“26. The fact that a Claimant is engaged in dangerous driving does not, without more, preclude him from bringing a claim against a defendant, who by reason of his/her breach of duty, causes the claimant injury. Under these circumstances the Claimant's actions give rise to a finding of contributory negligence but do not amount [to] a defence.”
After citing McCracken v Smith [2015] EWCA Civ 380, [2015] PIQR 19 the skeleton argument identified what was described as “the critical question” in the case under a heading, “What is the test in this case?”:
“31. Assuming the court finds the driving of [the defendant] to have been dangerous. The critical question is whether or not that driving impacted upon the actions of [the deceased] such that it was capable of causing or contributing to [the deceased's] accident; and, if it was so capable, whether or not it arose from the criminal joint enterprise.”
Two questions were then identified. The first, citing [43] of McCracken, was whether the conduct of the deceased and/or the defendant amounted to “turpitude”. It was submitted that it did. The second, citing [44] of McCracken, was whether the deceased's claim against the defendant was “founded on that turpitude so as to provide a defence”. It was submitted that the answer was yes, because the allegation that the defendant “was party to and encouraged the excessive speed [the deceased] carried into the bend” was founded on the deceased's own turpitude. Although not using the term itself, that is the language of joint enterprise.
In the concluding summary of the defendant's case, the ex turpi causa defence was summarised as being that:
“(d) Once engaged in competitive driving/racing, [the deceased] and [the defendant] are engaged in a joint enterprise of dangerous driving which amounts to turpitude.
(e) While, [the deceased] and [the defendant] owe a duty of care to proximate third parties, any injury sustained which arises from the joint enterprise is not caused by the negligent actions of the other but rather the criminal act for which damages cannot be recovered.”
The claimant's opening skeleton argument also identified “the central issue” for the purpose of the ex turpi causa defence as being “whether the two men were engaged in ‘a criminal joint enterprise’, such that one cannot recover compensation from the other”. If they were, it was accepted that the claim would fail; if not, it was accepted that the damages might be reduced to take account of contributory negligence, but the claim would not be barred by ex turpi causa. Again, McCracken was cited.
I have set all this out because Mr Tim Horlock QC for the defendant, supported by Mr Andrew Axon who appeared for the defendant at the trial, submitted as his primary case that the critical question for the purpose of the ex turpi causa defence was not whether the parties had been engaged in a criminal joint enterprise, but rather whether the claim was founded on the deceased's turpitude, a question which he submitted should be answered affirmatively, and moreover that this has always been the...
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