RO (by his litigation friend MI) v Freddy Gray
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 15 October 2021 |
| Neutral Citation | [2021] EWHC 2770 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: F90MA188 |
[2021] EWHC 2770 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
The Civil Justice Centre
1, Bridge Street West,
Manchester
HIS HONOUR JUDGE Bird sitting as a Judge of this Court
Case No: F90MA188
Mr Christopher Melton QC (instructed by Potter Rees Dolan Limited) for the Claimant
Mr Stephen Grime QC (instructed by Keoghs LLP) for the Second Defendant
Hearing dates: 20 and 21 July 2021
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
In the early hours of 4 July 2016, the claimant and his passenger were seriously injured when the Ford Transit van he was driving struck a wall at speed. The claimant's case is that Mr Gray, the first defendant, was pursuing him at the time and that the collision, and so his injuries, were caused by Mr Gray who:
“ drove his vehicle at speed on the offside of the Ford Transit partially overtaking the same and thereafter deliberately swerved towards and in contact with the rear offside of the Transit van striking it on or about its rear offside wheel with the intention of and, result, that the Claimant lost control of the vehicle which left the carriageway to the offside and collided with a substantial brick wall, destroying the vehicle and causing serious injury to the Claimant.”
As a result of these actions, Mr Gray was convicted of causing serious injury by dangerous driving, dangerous driving and driving whilst disqualified. He was sentenced to a total of 42 months imprisonment and disqualified from driving for 6 years. He was not insured to drive at the time and so the second defendant, the Motor Insurer's Bureau (MIB) effectively stands in his shoes. As there is no practical distinction between the defendants, I will refer to the first defendant in this judgment as the defendant. Mr Gray was not represented at the trial and did not appear.
In the run up to the events complained of, the claimant and the defendant (with others) had been involved in a series of unpleasant exchanges, some violence and some property damage. The claimant was not prosecuted in respect of any of the events which took place in the 30 minutes or so immediately preceding the incident. I have seen no evidence that sheds light on the decision not to prosecute.
The claimant pleads his case against the defendant in assault and battery rather than negligence. This is a trial of liability only. The defendant relies on the common law defence of illegality as a complete defence to the claim. No issue of contributory negligence arises if liability is established. Both parties accept that Pritchard v Co-operative Group Limited [2011] EWCA Civ 329 makes it clear that contributory negligence is not available as a partial defence to an intentional tort such as battery.
The defence pleads illegality as follows:
“ The Claimant's wrongdoing and turpitude precludes him from any entitlement to recover damages. The Second Defendant relies upon the maxim “ex turpi causa non oritur action”. The Claimant by his own actions and in conjunction with [his passenger] engaged in aggressive and violent behaviour which constituted, at the very least, one or more public order offences and criminal damage…… The Claimant deliberately chose to provoke and antagonise others, including the First Defendant to respond aggressively.…”
The claim
The claimant suffered a severe traumatic brain injury, lacerations to his spleen and liver and various broken bones. The damages claimed are substantial, but as yet unspecified. The heads of claim are those often seen in cases involving similar injuries and no doubt the majority of any award will be in respect of future care and possibly accommodation needs. As a result of his brain injury the claimant lacks litigation capacity and so he brings this claim through his mother who is his litigation friend. A claim brought by the claimant's passenger (his then partner) has been settled. In those proceedings she was anonymised and referred to as LXK. I will refer to her in the same way.
The issue of liability (subject to the illegality defence)
Mr Grime QC did not formally concede that (subject only to my determining the illegality defence) liability should be entered.
I am satisfied for the reasons I set out below, that the defendant's actions were deliberate. I need look no further than his convictions to be satisfied of that. I am in any event satisfied on the evidence before me as set out below that the defendant acted deliberately to force the claimant off the road.
The evidence
Before setting out the facts, it is helpful to say a little about the evidence and to set out a brief summary of the submissions. My findings in respect of “turpitude” follow and I then turn to the law before finally applying the law to the facts as I have found them.
There was a large measure of agreement between Leading Counsel about the facts. I heard no live evidence but had the opportunity to consider a number of witness statements, some of which were prepared for the police investigation and some for these proceedings. None of the factual evidence was challenged. I had the great benefit of a good deal of CCTV footage and a police accident report. I have watched the footage with care and the chronology I have recorded is derived from that footage. The CCTV images have no sound and so witness accounts help to explain the prevailing atmosphere when the images were captured.
I have an unsigned witness statement prepared for the defendant following an interview with the MIB's solicitor, Joy Gilbert together with a statement from her and her contemporaneous note of that interview which took place on 6 June 2018.
Submissions in Brief
Both sides made incisive and helpful submissions about the evidence and the law. Each accepted that I was required to apply a policy based test in accordance with the template provided by the Supreme Court in Patel v Mirza [2016] UKSC 42.
I am grateful to both Leading Counsel for their assistance.
In order properly to carry out that exercise it will be necessary to consider both the facts and recent developments in the law in some detail.
The facts
I record below my findings of fact.
The events leading to the claimant's injuries took place over a 35-minute period between about 11.55pm on 3 July 2016 and 12.30am on 4 July and in three principal locations: a petrol station on the A58 the main road into Rochdale from the west, on Packer Street in Rochdale town centre and then over various roads between Packer Street and High Level Road on the way out of Rochdale heading towards Oldham where the collision occurred.
Location 1: The Petrol Station and the drive to Packer Street
Shortly before midnight the claimant and LXK pulled into a petrol station just outside Rochdale town centre. As the claimant was filling the van with fuel, a taxi pulled up outside the petrol station. It was on its way to Packer Street. The front seat passenger got out and headed across the petrol station forecourt to the kiosk to buy cigarettes. It appears that the claimant and the passenger struck up a conversation at the kiosk window. LXK no doubt observed the exchange and may have heard it. It seems that she became jealous as a result of what she saw and heard. As the passenger headed back to the taxi, LXK got out of the van and remonstrated with her. Mr Zia, the taxi driver, recalls that LXK was shouting and swearing in an aggressive manner. He recalls that the claimant was protesting that he did not know the passenger and was becoming increasingly angry.
CCTV footage shows that a second female passenger (“the second passenger”) got out of the taxi as LXK was shouting. Mr Zia recalls she shouted to LXK words to the effect of “ if you're going to carry on, then let's have it.” The passengers got into the taxi, and it drove off. There was a third passenger, a young man. He played no part in the exchanges.
The claimant and LXK chased the taxi from the petrol station towards Rochdale town centre along the A58. The claimant was driving. When the taxi stopped at traffic lights the van pulled along aside. Mr Zia recalls that the claimant harangued the passengers and shouted for the front seat passenger to get out of the taxi. As the taxi pulled away the van followed. Shortly before arriving at Packer Street the van cut in front of it and forced it to stop. The claimant got out of the van and tried to open the rear taxi door, he punched the taxi and was shouting and acting aggressively. He kicked the taxi with force and fell over.
Mr Zia managed to drive away at speed. He soon reached Packer Street and dropped his three passengers outside the Flying Horse Pub (“the pub”). CCTV captured the drop-off at a little after 12.12 am. It is obvious from the footage that the passengers were agitated and concerned. They were clearly aware that the van was only a short distance behind them and appeared anxious to get inside to the relative safety of the pub.
Location 2: Packer Street
The layout
Packer Street lies a little off the A58 about 2 miles from the petrol station. It runs roughly north to south. Most of it is a one-way street. Driving from north to south down Packer Street on the left-hand side there are pubs and clubs. There is a club called “Koko's” at the northern end of the street and the pub is at the opposite end. Rochdale Town Hall stands with its eastern aspect towards Packer Street. Between the pubs and the clubs and the Town Hall there is an open car park. A single row of spaces runs parallel to Packer Street so that cars can be...
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