Oliver Flint v Elliott Tittensor and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis |
| Judgment Date | 26 February 2015 |
| Neutral Citation | [2015] EWHC 466 (QB) |
| Docket Number | Case No: HQ13X03870 |
| Court | Queen's Bench Division |
| Date | 26 February 2015 |
[2015] EWHC 466 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: HQ13X03870
Andrew Roy (instructed by Osbornes Solicitors LLP) for the Claimant
William Norris, Q.C. (instructed by Steele Ford & Newton) for the First Defendant
Timothy Horlock, Q.C. (instructed by Weightmans) for the Second Defendant
Hearing dates: 17th, 18th & 19th February 2015
This claim arises out of an incident which occurred on the 15 th August 2010 at around 0145 outside McDonalds on the corner of Kentish Town Road and Holmes Road, London. As a result of the incident, the claimant sustained very serious injuries. This is the trial of liability only and it is not necessary to describe those injuries in detail because I accept the submission of the defendants that they do not assist in deciding any relevant issue on liability. The claimant sustained serious head injuries when he was thrown from the bonnet of a moving car. The extent of those injuries does not, on the evidence, assist in deciding how fast the car was moving or any other relevant issue.
On the 19 th February 2015 I announced that there would be judgment for the claimant and that I would hand down a written judgment giving reasons. These are my reasons.
The first defendant is an actor and in August 2010 was in a relationship with Kaya Scodelario, an actor from the television series Skins. The first defendant is an actor best known for the television series Shameless. Immediately before the incident occurred, the claimant was a pedestrian and the first defendant was in his car, a BMW Z4. Ms. Scodelario was in or about to enter McDonalds. The first defendant had parked outside McDonalds, having stopped so that she could get out and go in. The first defendant's car was not insured at the time of the incident, which is why the MIB is a party to the proceedings. I am not asked to resolve any issue between the defendants, who have essentially advanced the same case.
The circumstances of the incident are disputed. The claimant's case is that he had been out with his friends and family at a bowling alley. At one point he became separated from the group. His mobile telephone had run out battery. He had his SIM card which would work in other phones using the same network if they were charged, and he wanted to ring his cousin so he could go to his address which he had forgotten. He therefore sought to borrow a telephone from several people. He went into McDonalds and recognised Miss Scodelario and there was an encounter between them. He had no luck in McDonalds and so approached the first defendant, sitting in his car outside McDonalds, and asked if he could use his mobile telephone. The first defendant refused in aggressive terms. The claimant then walked away. After a further unsuccessful attempt to borrow a telephone elsewhere, the claimant returned and asked the first defendant again. The first defendant again refused, swearing at the claimant. The claimant responded by swearing back and slamming his hand on the car bonnet. The first defendant then drove forward towards the claimant. This caused him to hit the claimant with the front of his car, forcing the claimant onto the bonnet. He then reversed, and drove forward again. The claimant alleges that the first defendant continued to drive forward whilst shaking the wheel to throw him off the bonnet, and succeeded in throwing him violently and heavily onto the ground. The first defendant then fled the scene.
The first defendant's case by contrast is that he was out with his then girlfriend. He parked outside McDonalds and waited in the car whilst Ms Scodelario went inside. The claimant approached him in an aggressive manner. The first defendant ignored him, pulling down his hat and avoiding eye contact. The claimant walked away and then turned back and walked in front of the vehicle. The claimant aggressively challenged the first defendant to get out of the car. The first defendant gestured for him to move. The claimant continued to shout and punched the vehicle bonnet. Among other things, he shouted "get out of the fucking car". He also spread his arms wide. The first defendant reversed at which point the claimant advanced and again punched the bonnet again. At times when he was approaching the car, the claimant put his hand down the front of his trousers causing the first defendant to believe that he had a knife. The first defendant edged forward without making contact with the claimant. This movement was intended to shepherd the claimant out of the way. The claimant then leant forward and climbed onto the bonnet and began punching the windscreen whilst holding onto the lip of the bonnet. He was screaming abuse and pulling at the windscreen wiper. The first defendant says that he thought the claimant was trying to get through the windscreen and that he was in fear that he would be killed. The first defendant then reversed before driving forwards in first gear and turning the wheel slightly from side to side to dislodge the claimant. The first defendant did not want to stop at the scene in case the claimant attacked him. He therefore agrees that he left the scene, albeit doing a u-turn briefly to pass by again. He voluntarily attended Holloway Police Station at 0312 the same morning. The first defendant relies on the fact that the claimant, who suffers from attention deficit hyperactivity disorder (ADHD), has a history of aggressive behaviour and had been drinking.
The claimant's case is that, in law, the first defendant's conduct amounted to an unlawful trespass or trespasses to the person, and that the impact with the claimant which caused him to go on to the bonnet of the car was deliberate or at least reckless. It is agreed that the action of the first defendant in driving away and using the steering wheel to cause the claimant to fall from the car was deliberate. The first defendant's response is that on the facts as he alleges them to be he was entitled to use some force to remove the claimant from the bonnet of his car, which is the only act directed towards the claimant which occurred. He says he acted in genuine and reasonable fear and panic. He further relies on two defences usually expressed by latin tags: " volenti non fit iniuria" and " ex turpi causa non oritur actio". These, in different ways, also rely on the conduct of the claimant as a bar to his claim. The second defendant has served a defence in identical terms.
The claimant also puts his case in his Skeleton Argument on an alternative basis. He relies on the agreement that the claimant was, at one point, being carried some distance on the bonnet of the first defendant's car when the first defendant manoeuvred it to cause him to fall on to the road. He did fall on to the road and it was this fall which caused his injuries. The claimant contends that this use of force was a battery, which was disproportionate to any threat which the claimant might have posed to the driver of the car. In other words he claims to be entitled to succeed even if the first defendant is right about the circumstances which led to him being on the bonnet of the car.
A case of this kind may often be resolved by the outcome of criminal proceedings. In this case the only criminal charge brought was an allegation against the first defendant of driving without insurance. He was fined £750 and 6 penalty points were imposed. He says that he thought that he was insured and did not realise that his policy had expired on the anniversary of its last renewal, rather than of the date during its currency when he acquired the BMW. He had informed his insurers of that acquisition and they charged him an additional premium which he thought was for a new 12 month term rather than an extra premium for the original term of his policy. That explanation is not, legally or morally, an excuse for the offence, because drivers are supposed to take care to ensure that they understand their policies and ask questions if they do not. It is their responsibility to make certain that they are insured. However, the basis of conviction means that the first defendant did not deliberately decide to drive while uninsured and this conviction does not assist me in resolving the factual issues which arise and I shall ignore it. The police and the Crown Prosecution Service did consider prosecuting the first defendant for attempted murder, grievous bodily harm and dangerous driving. The Crown Prosecution Service decided not to bring any charge of violence against him because they considered, on their analysis of the evidence, that there was insufficient evidence to rebut a defence of self-defence. For the same reason, no charge of dangerous driving could be sustained because there was insufficient evidence to rebut a defence of duress of circumstances. Of course, in a criminal trial a conviction could only follow if the prosecution proved to the criminal standard that these defences did not apply. I have read the Review Notes which are in the Bundle which record this decision. In the end, it is my evaluation of the evidence which will determine the outcome of this action, and not that of the CPS considering the papers only and applying the criminal law.
THE EVIDENCE
Investigations into CCTV in the vicinity were carried out by the police but were inconclusive. Therefore, in resolving the factual issues between the protagonists in this incident, it is necessary to look at the independent witness evidence, and the inherent probability or otherwise of the rival accounts and any inconsistencies or other reasons to prefer one account to the other. Three independent eye witnesses were identified and spoken to by the police. One...
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