Sean Robert Delaney v Shane Pickett and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Richards,Lord Justice Tomlinson |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1532 |
| Docket Number | Case No: B3/2011/0333 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2011 |
[2011] EWCA Civ 1532
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WALSALL COUNTY COURT
HIS HONOUR JUDGE GREGORY
6AF02992
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Richards
and
Lord Justice Tomlinson
Case No: B3/2011/0333
and
Graham Wood QC (instructed by Pinto Potts) for the appellant
William Featherby QC (instructed by Browne Jacobson LLP) for the respondents
Hearing date: 30th June 2011
The last thing Sean Delaney remembered was lighting fireworks at his children's bonfire party on Guy Fawkes night 2006. He next remembered waking up in hospital talking to his father on New Year's Eve. The cause of this nine week loss of memory was the severe head injuries and brain damage suffered by him as a result of a high speed motor collision on 25th November 2006 when his acquaintance, Shane Pickett, negligently drove the Mercedes 500 SL sports car in which he was the front seat passenger, head on into an oncoming Toyota people carrier.
Mercifully no-one died. But Sean Delaney was very seriously injured. His Glasgow Coma scale was 4–5 at the site of the accident. He had fractured his sternum, ribs, humerus, pelvis and ankle. His diaphragm and spleen were ruptured. His lungs were punctured. He has not fully recovered. He has suffered a change in personality. He has needed and will continue to need extra care. His employment prospects are bleak. His claim for damages is, therefore, very substantial. Yet his claim against Shane Pickett was dismissed by His Honour Judge Gregory sitting in the Coventry County Court on 26th January 2011 as was his claim against Tradewise Insurance Services Ltd brought under the provisions of the Uninsured Drivers Agreement made on 13th August 1999. Why? The reason given by the judge was:
"64. As I have already found as a fact the purpose of the journey in this case was the collection and transportation of illegal drugs for subsequent re-sale. It follows in my judgment that the Claimant's action arises directly ex turpi causa and for that reason must fail. Alternatively in my judgment the conduct upon which the Claimant was engaged in concert with the first Defendant was sufficiently anti-social that public policy prevents him from pursuing a claim arising out of it."
As against the insurers, he found that liability was excluded under the clause 6(1)(e)(iii) of the Motor Insurers' Bureau Agreement because the vehicle was being driven in the course or in furtherance of crime. However, Judge Gregory himself gave permission to appeal for this Court to consider both the extent of the ex turpi causa defence and the proper interpretation of the Agreement.
The facts
The appellant, Mr Delaney, was 33 years old at the time of the accident. He has been married since 1994 and has 4 children ranging in age from 16 to 8. He was employed as an estate caretaker but his passion is motor cars and he worked as a vocational tutor for school leavers who wanted to gain NVQs and obtain placements as motor vehicle mechanics. The first defendant, Mr Pickett, was more an acquaintance than a close friend. He too is a married man with children. The families met on a few occasions each year. His uncle was a motor trader and the defendant regularly had use of what the appellant considered to have been "very expensive and very flashy motor vehicles" which he would from time to time show off to the appellant and take him out "for a spin".
On 25th November 2006 the defendant seems to have arrived unannounced and unexpectedly at the appellant's home at about 6.25 in the evening. He left accompanied by the appellant at about 6.35 pm in order to go, so they said, for a drive in this powerful sports car. The collision occurred at no later than 7.14 pm on the B4113 Coventry Road in Nuneaton apparently on the way back to the appellant's home which was about 3/4 of a mile away.
The statements placed before the court show that the defendant was travelling at high speed, overtook a vehicle near some bollards in the centre of the road, passed those bollards on the wrong side of the road, saw the approaching people carrier, attempted to swerve back into his nearside but lost control and veered again to the offside into the path of the oncoming vehicle. There was a head-on collision. The defendant's vehicle came to rest against a tree which jammed the driver's door. The vehicle was a complete write-off.
Not surprisingly the judge found at [9] that the defendant was negligent "by reason of excessive speed, a failure to steer a safe course and a failure to retain proper control over his car". However he also found at [74]:
"Had I found for the claimant against the first defendant then I would have rejected the allegation of contributory negligence against him because there is no direct evidence to establish that the claimant knew or ought to have known that he was under the influence of cannabis even if he was. The evidence does not establish that the cannabis consumed by the first defendant would probably have had a visible effect upon him nor that the fact of his consumption of it would have been otherwise apparent to the claimant through smell or manner of speech or otherwise. While all of these matters might have been the case the evidence is not such as to establish upon the balance of probabilities that any of them was in fact so."
By good fortune an ambulance travelling along the B4113 came upon the scene within a minute of the accident. Two fire engines attended because the appellant and respondent were trapped in their car. It was necessary for the roof and passenger door to be removed. One of the fire officers, a Mr Kevin Brindley, gave evidence that the driver, who was conscious and apparently less injured than the passenger, was the first to be removed by manually hauling him from his seat and placing him on a long board across the back of the vehicle. As that was being done Mr Brindley noticed an apparent swelling to his ankle and upon investigation found that a plastic packet the size of a tennis ball had been stuffed down his sock. That package was subsequently handed to the police and upon examination was found to contain 34g of herbal cannabis sufficient to make 170 cannabis cigarettes.
This information, and much else, came from a number of statements obtained by the police and placed, with the apparent agreement of the parties, before the judge. He appears to have treated them, and cannot be criticised for having treated them, as hearsay evidence to which he could give such weight as he thought to be appropriate in all the circumstances. I shall approach them in the same way.
Having extracted the defendant, the fire officers, assisted by Ms Alexandra Smith, a paramedic member of the ambulance crew, removed the unconscious appellant from the car. As he was being lifted out, his coat rode up exposing a package about the size of a small football. It had a very distinctive herbal smell and upon examination was found to contain 240g of herbal cannabis sufficient for 1,200 cigarettes. The combined street value of both packages was estimated by the police officers to be worth £674 or as much as £1,172 if it was "skunk" but which it was has never been established. Mr Brindley and Ms Smith were patently honest and credible witnesses and the judge had no problem in being satisfied that this larger bag of cannabis was being held by the appellant underneath his closed bomber jacket.
On 7th March 2007 the defendant, as I shall call Mr Pickett, was interviewed by the police upon suspicion of dangerous driving and possession of a controlled drug. The judge made some, but not detailed, reference to the explanations he gave for the cannabis that was found, observing that:
"He made admissions and gave an account of how and why he had come into possession of drugs."
In my judgment it will, however, be necessary to see what explanation was given in order to test the probabilities if his assertions could have been true.
In a long tape-recorded interview conducted in the presence of his solicitor and concerned mainly with the dangerous driving, the defendant also volunteered the following. He readily acknowledged that the bag found in his sock contained herbal cannabis. Asked to whom it belonged he said, "Yes, it's mine." Asked why he was in possession of it he replied, "I smoke it, I'd not long bought it prior to the accident." He then described where he had bought it but said his life would not be worth living if he identified his supplier. Asked how long he had been using cannabis he said, "Years. I started not as much as I do now. Started lightly when me mum passed away, it progressed more after my accident, 6 years ago, I just haven't been able to stop. It helps with the pain, helps with a lot of things." He said he smoked cannabis every day usually and asked how many times a day he smoked he replied, "If I stay in all day, then all day providing I've got it." Asked if he was hooked on it he said he had tried coming off it and cutting down but it helped him sleep. He said he paid £70 for the cannabis which he put straight into his sock and after that went to pick up the appellant. He was challenged as to whether he was certain about those circumstances and it was suggested that the appellant was with him at the time he bought the cannabis. He replied, "No, positive". The officer pressed him about the appellant being found in possession of a large bag of the same substance stuffed up inside his coat and the defendant...
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