Mr Liam Clark (a protected party suing by his Mother and litigation friend Nicola Woods) v Mr Darren Lee Farley
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 02 May 2018 |
| Neutral Citation | [2018] EWHC 1007 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C90MA157 |
| Date | 02 May 2018 |
[2018] EWHC 1007 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Civil Justice Centre
1 Bridge Street West, Greater Manchester
Manchester, M60 9DJ
Mrs Justice Yip DBE
Case No: C90MA157
Mr Christopher Melton QC and Mr Peter Burns (instructed by Metamorph Law Ltd) for the Claimant
Mr Stephen Worthington QC and Mr Oliver Rudd (instructed by Weightmans LLP) for the Second Defendant
The First and Third Defendants appeared in person and were unrepresented
Hearing dates: 16 and 17 April 2018
Judgment Approved
On Sunday 16 th September 2012, a few weeks before his sixteenth birthday, Liam Clark suffered catastrophic brain injury when he was a pillion passenger on an off-road motorcycle which collided with another such motorcycle as they were being ridden in opposite directions along a path in the Bold Forest Park near to St Helens, Merseyside.
Liam is now 21. I am concerned only with liability at this stage. However, from the limited medical evidence I have seen it is apparent that he suffered injury of the maximum severity. As Dr Yuill, the consultant neurologist whose initial report was served with the Particulars of Claim, puts it “it is self-evident that he will never take his place in society.”
The motorcycle on which the claimant was travelling was being driven by the third defendant, Ryan Edmonds. The first defendant, Darren Farley, was riding the other bike. Neither bike was insured. It follows that it will fall to the Motor Insurers Bureau to meet any unsatisfied judgment obtained against the first or third defendant. The claimant, acting through his mother as litigation friend, initially commenced his claim for personal injury against Mr Farley and the MIB. The MIB required that Mr Edmonds be joined as third defendant.
The first and third defendants attended the trial of the action but were unrepresented. Mr Edmonds listened to the evidence and submissions but played no active part in the proceedings. Mr Farley submitted a brief Defence denying liability in which he said, “Ryan Edmunds (sic) should be getting claimed against as he was the one who drove into me” and “it was an accident pure and simple and [I] don't see why I am being penalized.” He gave evidence and made brief submissions, maintaining his denial.
The MIB defend the claim, relying on the maxim ex turpi causa non oritur actio. Their position is that the claim is barred on the basis that the claimant was involved in a joint illegal enterprise with the first and third defendants. If I reject that primary defence against one or both riders, the MIB invite me to make a finding of contributory negligence against the claimant. There are two elements to this. First, it is said that the claimant is to blame for allowing himself to be carried on the bike in all the circumstances of the case. That aspect is contested. The second point is no longer contentious. It is agreed that there should be a discount to reflect the claimant's failure to wear a helmet. All parties have agreed that the appropriate discount would be 12.5% if the helmet issue stood alone. As the claimant is a protected party, the agreement requires my approval. If I make any other finding of contributory negligence, I will have to consider the appropriate total discount to incorporate the helmet issue. I will return to this issue in due course.
The evidence
In the end, I heard a limited amount of evidence about the events in question. Given the serious nature of this accident, it was fully investigated by the Merseyside Police Collision Investigation Unit. Statements were taken from young men present in the vicinity of the accident. The first and third defendants were each interviewed under caution. The investigating officer P.C. Philip Clarke attended court and produced the accident report and its attachments, which included photographs, plans and the statements obtained by the police in the days following the accident. Mr Edmonds was interviewed on 28 October 2012 and Mr Farley on 17 November 2012. Transcripts of those interviews were produced by P.C. Darren Doyle. I also heard from Stephen Fagan, the vehicle examiner who had examined the bikes.
I heard some background evidence from the claimant's mother, Nicola Woods and from two adults who knew him well, Frances McGann and Kevin Prescott.
It was apparent that both the claimant and the MIB had encountered some difficulty in obtaining the cooperation of the witnesses who had been present at the scene. Lee Callery and Ryan Lee provided statements to the claimant's solicitors. These were served in accordance with the court's directions and were in the trial bundle. Lee Callery attended court. However, he was not called, and no party sought to rely on the evidence in his statement. Ryan Lee did not attend and again the parties chose not to rely upon his evidence. Melvyn Carney had not provided a statement in this claim. He did attend court but was not called by any party. In the circumstances, it was agreed that in relation to these three witnesses I should have regard only to the evidence contained in their statements to the police. I bear in mind, of course, that such evidence was not tested by cross-examination. Andrew Carney did give evidence and I therefore have regard to his oral evidence, in addition to that contained in his police statement. As I have already indicated Mr Farley gave evidence, but Mr Edmonds did not.
The claimant and the MIB had obtained expert accident reconstruction evidence. The experts, Mr Sorton and Dr Ninham, had reached agreement such that they were not required to attend court. I was provided with their helpful joint statement dated 24 January 2018. I also had the expert evidence in relation to the helmet issue.
The facts
On the evidence before me, there was nothing to indicate that Liam Clark was anything other than a normal boy aged 15, nearly 16. I have heard nothing negative about him. He was interested in clothes and girls. He lived in the Clock Face area of St Helens and it appears that he had many friends in the area. He tended to ‘hang around with’ boys and young men who were older than him, including Ryan Lee and Lee Callery. It was suggested on behalf of the MIB that this was evidence of Liam's maturity. From all I have seen and heard in this case, I rather have the impression that it was more a result of the immaturity of others. I accept what his mother said: “He was as mature as any kid that age.”
There was an issue as to Liam's interest in and experience of motorcycles prior to the accident. Darren Farley asserted in a witness statement provided to the MIB that he had seen Liam riding a motorcycle around the estate where he lived, and on the path where the accident occurred, “on many occasions”. He also claimed that he had been told by an unidentified friend that a couple of nights before the accident Liam had been riding a motorcycle and was seen talking to his mother who was in a car.
By contrast, Miss Woods said she had never seen Liam on a motorcycle. He had never expressed any interest in motorcycles. To her knowledge, he had never ridden one before, although she frankly admitted that he could have done so without her knowing. Her evidence was supported by that of Miss McGann and Mr Prescott, both of whom knew Liam well. They lived in the area and had never seen Liam on a motorcycle or seen or heard anything to indicate he was interested in them.
On this issue, I have no hesitation in preferring the evidence called on behalf of the claimant to that of Mr Farley. Miss Woods struck me as a patently honest witness. While the trial cannot have been easy for her, she gave her evidence in a measured way. She was not naïve, being willing to accept that Liam might have ridden a bike without her knowledge. She certainly did not strike me as a mother who would have condoned her son riding a motorbike about the estate. It is very unlikely that Liam regularly rode motorbikes in the vicinity of his home without his mother becoming aware of that. Darren Farley said in his statement “It is the kind of place where everyone knows everyone else's business.”
I did not find Mr Farley to be a reliable witness. He displayed a total lack of empathy for the claimant and seemed interested only in himself and in denying any responsibility. I acknowledge that he suffered a head injury. I do not know whether he has suffered any neurocognitive sequelae that might have contributed to his combative attitude. He told me that his memory had been affected. Whatever the reason, he was a distinctly unimpressive witness. He insisted he had seen Liam and his friends riding motorbikes “many times”. He was unable to name any of the friends. He could not identify any specific times or locations when this occurred. He initially said he had seen Liam riding motorbikes at the accident location “many times” previously. In his oral evidence, he changed this to “once or twice” before conceding that he had never seen him there before the accident date. Cross-examined by Mr Worthington QC, he said that he did not really know Liam before the accident but knew of him. When later questioned by Mr Melton QC about his recollection of seeing Liam on motorbikes, he claimed to have known him quite well. To be blunt, I did not believe Mr Farley. I reject his evidence that Liam had frequently ridden motorcycles before the accident. There is no other evidence that Liam had ridden a motorcycle before.
Contrary to Mr Farley's evidence that gangs of boys regularly rode around the streets of the estate, the police were not aware of any particular problem with...
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