Steven Keating v Andrew Hurrell and Another
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0725-10 |
| Date | 25 July 2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No 00/TLQ/0452 |
[2000] EWHC J0725-10
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand London WC2A 2LL
Michael Supperstone Qc
(Sitting as a Deputy Judge)
Case No 00/TLQ/0452
Mr Anthony Haycroft (instructed by Edward Oliver & Bellis) appeared on behalf of the Claimant
Mr Jonathan Cowen (instructed by A H Page & Co) appeared on behalf of the 1st Defendant
Mr Patrick Blakesley (instructed by Jacobs) appeared on behalf of the 2nd Defendant
DRAFT JUDGMENT
At about 8.15 pm on 20 June 1995 a road traffic accident occurred outside the Billet Public House on Billet Road, Dagenham, in Essex. Mr Keating, the Claimant, alleges that he and Mr Hurrell, the First Defendant, who were together, came across Mr Beckley, a neighbour of Mr Keating, outside the Public House. Mr Hurrell became abusive to Mr Beckley and punched him. Mr Keating intervened to restrain Mr Hurrell by pulling him away and they fell into the roadway where they were both struck by a Vauxhall Cavalier motor car, driven at 54 mph in a 40 mph speed limit by Mr Mills, the Second Defendant. Mr Keating and Mr Hurrell suffered severe injuries and both have retrograde amnesia.
Mr Keating alleges that the accident was caused by the negligence of Mr Hurrell and/or Mr Mills. Mr Hurrell denies that he was negligent and he counterclaims for damages on the basis of Mr Keating's negligence. Mr Mills admits his negligence. An agreement has been reached between Mr Keating and Mr Mills pursuant to which Mr Mills has agreed to pay to Mr Keating a contribution of one half of the damages and interest as agreed between all of the parties or failing such agreement as may be assessed and ordered by this Court. Mr Mills has a Part 20 claim against Mr Hurrell for an indemnity or a contribution.
In an earlier action, Hurrell v Mills, 1996 H No 437 ("the first action") Mr Hurrell, the Claimant in that action, obtained judgment against Mr Mills in respect of the same accident. Mr Hurrell was found to be 50% contributorily negligent and the Judge directed that damages were to be assessed. At a Case Management Conference on 6 March 2000, Master Leslie ordered that the two actions be consolidated. There is therefore to be one assessment of damages due in respect of both actions following the present trial on liability.
THE EVIDENCE
The evidence in the present case has to a very large extent not been in dispute. Statements made by witnesses have been admitted in evidence by agreement between the parties. The only witness to give oral evidence was Mr Philip Copleston, a passing driver, whose evidence in chief was not challenged. In summary, the relevant evidence was as follows:
1. At the time of the accident Mr Keating was 31 years of age; Mr Hurrell was 32 and Mr Beckley was 55. I am told that Mr Keating is 5 foot 7 inches and Mr Hurrell is 5 foot 11 inches. Mr Hurrell is a larger build than Mr Keating.
2. Mr Keating said that he did not recall the accident, from which he sustained serious head injuries, occurring. He had known Mr Hurrell for about one week prior to the accident. He employed him for approximately three days as a casual labourer to assist him with his landscape gardening business. Mr Hurrell was not a friend or acquaintance of his. Mr Keating said that he did not know Mr Beckley or Mr Stanley who was with Mr Beckley at the time. He just knew Mr Beckley lived near him.
3. Mr Hurrell said that on the day in question he was working for Mr Keating as a labourer. He finished work at approximately 5.30 pm. Shortly afterwards Mr Keating suggested that they go for a drink at a nearby pub. Mr Hurrell said that he did not remember anything at all thereafter until he woke up in hospital the next morning. He said he met Mr Keating whilst they were both doing community service, Mr Keating having been convicted of assault on police officers and he having been convicted of driving whilst under the influence of alcohol.
4. Mr Beckley told how he was waiting at the bus stop located outside the Billet Public House with his friend Mr James Stanley when he became aware of two men, now known to be Mr Keating and Mr Hurrell, who were leaving the public house. In his witness statement dated 9 September 1998 Mr Beckley said:
"3. It had been an extremely hot day and the smaller of the men (Mr Keating) looked burnt from the sun. He was lifting his Tee shirt up, his back was very burnt. As he passed me I recall that I said to him "whatever you do you will not get as dark as me". I remember clearly that those were my exact words. They were said in jest and the small man took them this way and smiled. However the next thing I knew was the large man (Mr Hurrell) shouting at me "How dare you touch a white man's back", he then punched me so hard in the face I fell to the ground. I had a cut in the centre of my forehead and the palms of my hands were cut as I fell to the ground.
4. I recall seeing the expression on the small man's face of utter shock and horror at what the larger man had just done. I staggered back up. The larger man was determined to fight. The smaller man tried to pull the larger man away. I recall he was telling him to stop but the larger man did not listen.
For my part I was trying to defend myself, I remember kicking the larger man. My friend James Stanley went into the pub to call the police. However, he was gone a very short time as there was no telephone. When he came out the larger man "rushed at me". Again, the smaller man tried to pull the larger man away. I would say that he was making every effort to protect me. James Stanley tried to pull me away.
5. Whilst the smaller man was trying to stop the larger man from attacking me, the larger man fell into the road, pulling the smaller man with him. They both fell into the path of an oncoming vehicle, which was unable to stop in time. They were both hit by the car and looked as though they were either dead or seriously injured."
Pausing there�in a statement that he gave to the police on 22 June 1995 Mr Beckley said that Mr Keating had come up behind Mr Hurrell, put both arms round him and begun to pull him away; he said they seemed to stagger and then fall into the road at the same time. Continuing with his witness statement, Mr Beckley said:
"7. Two days after this accident the police came to my house and I gave them a statement. They asked me if I wanted them to take action against the larger man because of the unprovoked attack on me. Even though this attack caused me physical and emotional pain I said that I felt the larger man had been punished by what had happened when the car hit him. Had it not been for this I would have wanted the police to charge him. I still have a scar on my forehead from the blow he struck to my head. The attack on me by the larger man was totally unprovoked and I believe it was motivated by blatant and extreme racism."
5. Mr Stanley in his witness statement said that he was waiting with Mr Beckley, his friend, at the bus stop outside the public house in Billet Road when the two men came out of the public house. He described one (Mr Keating) as small with dark hair and a slight build, the other (Mr Hurrell) as a lot larger�taller and over weight. Mr Stanley said:
"4. I recall that when they passed us, the smaller one said something about his sunburnt back to my friend Mr Beckley. I recall that Mr Beckley laughed and said something back. I cannot remember precisely what was said but the verbal exchange between the small man and Mr Beckley was good humoured. Nothing offensive was said by the small man. I then recall that the larger man began to raise his voice in an aggressive manner towards Mr Beckley. He appeared drunk as he could not keep his balance and smelt of alcohol. The larger man stumbled forward and shouted that Mr Beckley had touched the small man's back. The smaller man told the larger man to leave it out and to come away. I also remember the smaller man telling the larger one that Mr Beckley didn't touch his back and he kept saying to the larger one to come away. However, the larger man ignored the smaller man's pleas and then punched Mr Beckley with a blow so hard that Mr Beckley fell back onto the ground. The larger man kept throwing punches at Mr Beckley. I was concerned that my friend could get seriously hurt so I ran to the pub to get help but nobody came.
5. When I came out of the pub the larger man was still hitting Mr Beckley. The smaller man was trying to pull the larger man away, the attack then stopped for a few seconds but then the larger man ran at Mr Beckley again and began to hit him once more. At this stage the smaller one again tried to pull the larger one away. The larger man simply would not stop fighting. They were positioned nearer the kerb, they were pulling each other. As I stated above the larger one appeared drunk as he was stumbling and seemed unable to keep his balance. As the larger one was pulling to get at Mr Beckley the smaller one was trying to pull him away, they then seemed to tumble into the road. As they did this a car was coming and they fell right into its path. The car hit both of them."
On 28 June 1995 Mr Stanley made a statement to the police in which he said that the shorter man (Mr Keating) said "Look at my back, I've got a better colour than you, I've got a tan you black bastard". He said that the same young man (Mr Keating) then said "Why did you touch my back?" Commenting on this statement to the police in his witness statement Mr Stanley said:
"6. On June 28 1995 I gave a statement to the police at Ponders End Police Station. I cannot recall if the statement was read back to me but I would say on oath that there are certain inaccuracies contained in the statement. Namely, at no time was the small man abusive or...
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