Mr Lyum Roy Campbell (A protected party who proceeds by his father and litigation friend Donald Campbell) v Advantage Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | Robinson |
| Judgment Date | 14 August 2020 |
| Neutral Citation | [2020] EWHC 2210 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-000905 |
| Date | 14 August 2020 |
[2020] EWHC 2210 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Robinson sitting as a Judge of the High Court
Case No: QB-2019-000905
John Ross QC (instructed by Novum Law) for The Claimant
Christopher Kennedy QC (instructed by Keoghs LLP) for The Defendant
Hearing dates: 11–13 March 2020
Approved Judgment
Introduction
In the early hours of 9 August 2016, the Claimant and Aaron Brown were driven by Aaron's brother, Dean Brown, to the Moo Moo night club in Cheltenham. I shall refer to the Brown brothers by their first names. The car was a three-door hatch back Seat Ibiza. All three drank alcohol in the club. There came a time when the Claimant, who was clearly drunk, was assisted out of the club by Aaron and Dean and placed in the front passenger seat of Dean's car. He leaned out of the car to be sick on the ground. Aaron and Dean returned to the club to continue drinking.
About an hour or so later, Aaron and Dean left the club, returned to the car and got into it. Aaron was in the rear off side passenger seat. The Claimant was still in the front passenger seat. The car would not start. Aaron got out of the car to return to the club to find some jump leads. When he returned, the car had gone. At 3.53am the car drove headlong into an articulated lorry. Dean was killed outright. The Claimant had somehow moved from the front passenger seat into the rear of the car. He survived the crash but sustained extremely serious injuries. He brings this claim for damages for those injuries and other losses arising out of the accident. Primary liability is admitted. Contributory negligence is alleged:
(1) The Claimant knowingly allowed himself to be driven by Dean, whom it is alleged the Claimant knew or ought to have known was not fit to drive by reason of his intoxicated state: Owens v Brimmell [1977 QB] 859;
(2) The Claimant did not wear a seat belt: Froom v Butcher [1976] QB 276.
It is trite law that the burden of proof rests with the Defendant. By order made on 16 July 2019, Master Cook directed that the issues of liability and causation be tried separately from the issue of quantum. This is the Judgment on those preliminary issues.
The Evidence
Tragically, before the trial began, Aaron took his own life. Before he died he provided written witness statements to the solicitors for the Claimant and for the Defendant.
The Claimant is in a minimally conscious state and is clearly unable to give evidence on his own behalf.
The written lay evidence on behalf of the Claimant comprised:
(1) Donald Campbell, Claimant's father, dated 7 December 2017;
(2) Aaron Brown, dated 3 December 2017 and 26 June 2018;
(3) Sophie Gallagher, former girlfriend of the Claimant, dated 6 September 2019;
(4) Martyn Keen, Firefighter (Station Manager), dated 3 September 2019;
(5) Matthew Bailey, Paramedic: response to a “Request for crew statement” dated 12 July 2017.
The main written evidence on behalf of the Defendant comprised:
(1) Aaron Brown, dated 8 May 2018;
(2) Thomas Mason, driver of the articulated lorry: statement to the police dated 23 August 2016;
(3) Post Mortem Report (Dean Brown) dated 11 October 2016;
(4) Forensic Toxicology Report (Dean Brown) dated 4 October 2016.
As might be expected, there were also police generated statements and reports relating to this major road traffic incident.
Written and oral evidence was given by experts on behalf of both parties:
Collision Investigation
(1) Stephen Jowitt, (Claimant)
(2) Stephen Henderson, (Defendant)
Medical
(3) Dr Steven Allder, Consultant Neurologist (Claimant)
(4) Mr David Skinner, Consultant in Emergency Medicine (Defendant)
The Evidence and Findings of Fact
In making findings of fact I have had regard to the entirety of the written and oral evidence, and such documents as were relied upon.
It is inevitable that in some instances my findings comprise inferences from evidence which I accept.
The statements of Donald Campbell and Aaron Brown enable me to determine the sequence of events that preceded the drive to the club.
The Claimant was born on 8 August 1985. Monday 8 August 2016 was the Claimant's 31 st birthday. He had also been interviewed that day for a job with an insurance company. Donald Campbell says he was “sure he had got it”. It is likely that the Claimant had been celebrating both that news and his birthday.
The Claimant arrived at his father's house between 8.30pm and 9.00pm. His father was of the opinion he had been drinking. He had with him a bottle of champagne and a bottle of brandy. At approximately 10.00pm, Dean arrived. Donald Campbell did not notice any indication that Dean had been drinking or taking cannabis. Dean refused drinks offered by the Claimant. Donald Campbell thinks that the Claimant and Dean left the house at about 10.30pm.
Aaron, in his first statement, says that the Claimant and Dean arrived unannounced at Aaron's house at about 11.00pm. It was obvious to him that the Claimant had been drinking. In his second statement Aaron says that the three men left for the Moo Moo club in Cheltenham “between about 10 to 11.30pm”. The club is about a 20 to 25 minutes drive away. Having regard to the timings given by Donald Campbell and by Aaron in his first statement, I find it likely that Dean and the Claimant did arrive at Aaron's house at about 11.00pm and left by 11.30pm. Dean was driving. The car was parked in a side street about five minutes walking distance from the club. I find it likely that they entered the club not later than midnight.
The three men occupied a booth at the club. All three men drank alcohol. I deal more fully with this below.
There came a time when it was obvious that the Claimant was very drunk. Aaron had seen him knock over a table and that the “bouncers were taking him out of a door of the club”. Dean and Aaron followed the Claimant out of the club and took hold of him “as he couldn't stand on his own”. They walked him to the car, with Dean holding the Claimant on one side and Aaron on the other. The only estimate of the time when this occurred is contained in Aaron's first statement: “at about 1am or 2am”. When they reached the car, the Claimant was put in the front passenger seat. The door was open. The Claimant leaned out and, according to Aaron, he “was then really sick”. Mr Kennedy QC submits in his skeleton argument that it is relevant to the issue of the Claimant's capacity that he had “enough presence of mind to lean out of the passenger door so that he was sick on the ground rather than in the car”. I shall consider the issue of capacity below.
The Claimant was asleep before the car door was closed. At this point there is a conflict between the account given by Aaron in his first statement and that given in his second and third statements concerning whether the Claimant wore a seat belt. In his first statement, he says “I didn't need to put his [seat] belt on as he wasn't going anywhere.” Later he says: “Lyum was never in a fit state to put his seat belt on for himself, or to get himself into the car on [h]is own, he needed us to help him”.
In his second statement he says: “I put the seatbelt on him and remember seeing him slouch forward. He then fell asleep …”.
In his third statement he says: “I put his seatbelt on him whilst we were thinking about going back into the club.” He also repeated, verbatim, the passage in his first statement concerning the Claimant's inability “to put his seat belt on for himself”.
Aaron signed his first statement in December 2017, about 16 months after the accident. The other two statements were signed in May 2018 and June 2018 respectively. There is no way to reconcile the conflicting accounts. Aaron does not in his second and third statements seek to address the inconsistency. It does not seem to me to be likely that Aaron's memory of the night in August 2016 was significantly, or any, more reliable in December 2017 than in May and June 2018.
I do not attach much weight to the fact that Aaron has twice said he put the seat belt on the Claimant, and only once said he did not. It would be surprising if Aaron altered his account of this matter between May and June 2018.
On balance I consider it more probable than not, and I so find, that Aaron put the seat belt on the Claimant. It would have made sense to take that step to provide some degree of support for the Claimant as he slept.
Aaron and Dean then went back into to club. They continued to drink. Aaron thinks they remained in the club for about an hour. When they came out and went to the car, Aaron got into the rear offside passenger seat. The Claimant was still asleep or passed out. Aaron, in his second statement, says: “I can't be sure but believe that Lyum was still wearing the seatbelt”. Mr Ross QC submitted that this is insufficient evidence to establish that the Claimant was wearing his seat belt. I have found that the Claimant was left in the car with his seat belt on. I see no reason to suppose that the Claimant woke up whilst Dean and Aaron were in the club and undid his seatbelt. I find that the Claimant was wearing his seat belt when Aaron and Dean returned to the car.
The car would not start. Aaron got out of the car to go back to the club to see if he could borrow some jump leads. Dean must have got out of the car to allow Aaron to get out of the rear offside seat. In his second statement Aaron says he thinks he was “in the club” for about 15 minutes. It is not clear if by that he means he was away from the car for 15 minutes or whether, given that the...
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