Wakling v McDonagh
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 2007 |
| Neutral Citation | [2007] EWHC 1201 (QB) |
| Docket Number | Claim No. HQ05X02229 |
| Court | Queen's Bench Division |
| Date | 25 May 2007 |
[2007] EWHC 1201 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE MACKIE QC
Claim No. HQ05X02229
Ms E A Gumbel QC and Mr Henry Witcomb (instructed by Field Fisher Waterhouse) appeared for the Claimant
Mr Richard Methuen QC and Mr Harry Steinberg (instructed by Browne Jacobson) appeared for the Second Defendant
This is a Claim for damages for the catastrophic injuries suffered by the Claimant when he was injured in a road accident on 21 September 2003 as a result of the First Defendant's negligence. The life of a very promising and talented schoolboy who was riding his bicycle home has been devastated by the criminally dangerous driving of the First Defendant, Mr McDonagh, who was travelling at well over 50 miles per hour in a 30 miles per hour zone while under the influence of crack cocaine. The First Defendant failed to stop, drove away from the scene and abandoned the vehicle. As he was not insured the Second Defendant (“MIB”) has assumed responsibility. Primary liability is not denied. I will refer to 'the Defendant' except where specific mention of Mr McDonagh or MIB is required.
At the start of the trial, on the basis of a very careful and ably assembled Advice from Counsel, I gave the approval of the Court to the quantum of agreed items totalling some £2,905,500. Approval has also been given by the Court of Protection. This left three main issues to be decided:-
(a) Was there contributory negligence by the Claimant and if so what if any reduction should be made?
(b) How much should the Claimant recover for his future costs of care and case management?
(c) How much should the Claimant recover for the future cost of hydrotherapy?
I will deal first with the contributory negligence and then with damages.
Contributory negligence —facts agreed or not greatly in dispute
The Claimant Mr Adam Wakeling (who I will call “Adam” as he is so described in virtually all the papers) is a patient and sues through his mother Mrs Carpenter. He was, at the date of the accident on 21 September 2003, a 17 year old student at a sixth form college. He had done very well at GCSE, was expected to excel at A level and was also a talented musician who played three instruments.
At about 5.20 on a Sunday afternoon Adam was on his mountain bike starting the journey of returning from his girlfriend's parent's home on the Downs Estate in Amhurst Road in Hackney, London, to return to Brooke Road where he lived with his mother. Adam was alone and there is no evidence that he was in a hurry. The weather was fine and the roads were dry. Amhurst Road is, at this point, residential with houses and flats on either side. There is a 30 mile per hour speed limit. Adam needed to cycle up the steep incline of the driveway next to Blackdown House which is on the Downs Estate and then onto and across the pavement onto Amhurst Road. From the pavement he needed to cross the Southbound lane before turning right to cycle North towards his home. There are helpful photographs and plans of where the accident happened. There are spaces for vehicles to park on both sides of the road. At the time of the accident there was a white Transit type van parked immediately to the right of the exit from the flats. So Adam would have had to check that the road was safe to cross either before his line of sight was interrupted by the van or by stopping and, as the Defendant puts it, by treating the outside edge of the white van, which was about 2 metres wide, as though it had been the kerb.
Mr McDonagh was driving a blue Fiat Tipo approaching from Mr Wakeling's right, probably in the correct lane at a speed that reconstruction experts estimate between “high forties” and 57 mph. The Fiat struck Adam and his bike. It left locked offside and nearside tyre marks on the road surface, 28.7 and 27 metres long respectively. Adam was probably thrown by the force of the collision to a position some 30 metres from the beginning of the tyre marks. From a spot close to where Adam came to rest the vehicle created scratch marks on the road surface for a further 35 metres as it apparently pushed the bicycle, by then trapped beneath the car, along the road. The reconstruction experts agree that the first contact was between the car bumper and grille and Adam's right leg following which he went onto the bonnet, his head striking the windscreen. As his body continued to rotate from the impact Adam struck the roof as he went over the top of the car then fell to the ground.
Mr McDonagh did not stop but drove away from the scene and abandoned the car. He was eventually arrested for unrelated offences and initially pleaded not guilty to charges relating to the accident. Following the disclosure of DNA evidence Mr McDonagh pleaded guilty to dangerous driving, driving with no insurance and failing to stop. I have not seen the sentencing remarks of the Judge in the Crown Court but a transcript of Mr McDonagh's plea in mitigation concedes that “he was heavily dependent on crack cocaine” which had affected his skills on that day and that he had been “doing 20 over the limit”, i.e. an admission that he had been travelling at 50mph at least.
The extent of Adam's injuries concerns damages rather than liability but I set these out now as they demonstrate the severity of the impact. Adam's injuries included
(a) An extremely severe diffuse axonal head injury with:
(i) haemorrhaging in the mid-brain;
(ii) subarachnoid haemorrhaging in and contusions of the left parietal lobe;
(iii) subarachnoid haemorrhaging in and contusions of the right frontal lobe;
(iv) bilateral frontal subdural haemorrhaging.
(b) Serious injuries to the spine including:
(i) a fracture of the posterior facet joint of the fifth/sixth cervical vertebra with the fracture line extending into the foramen;
(ii) a fracture of right transverse processes of the seventh cervical vertebra;
(iii) a fracture of right transverse processes of the first thoracic vertebra;
(iv) a fracture of right transverse processes of the second thoracic vertebra.
(c) A severe right brachial plexus injury.
(d) Multiple orthopaedic injuries including:
(i) Fractured right clavicle.
(ii) Fractured first right rib with associated haemopneumothorax.
(iii) A compound fracture of the right radius and ulna.
(iv) A fracture/dislocation of the pelvis with diastasis of the symphysis pubis and with fractures of the right sacro-iliac joint.
(v) Serious left knee injuries including a ruptured anterior cruciate ligament, a ruptured posterior cruciate ligament, a ruptured postero-lateral capsule, and a fractured medial femoral condyle.
Contributory negligence – the law
The relevant test is not in dispute and a legal issue, on the facts of this case, would arise only if I were to find that Adam had been to some degree at fault and I had then been concerned with an evaluation of the two separate aspects identified by Lady Justice Hale in Eagle v Chambers [2003] EWCA 1107, first the respective causative potency of what the parties have done and secondly their respective blameworthiness. The test is set out in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945. The Defendant must establish on a balance of probabilities first that the Claimant was at fault, secondly that the fault was causative of the injury and thirdly that it would be just and equitable, once respective responsibility for the damage has been assessed, for the Claimant's damages to be reduced.
The Defendant claims that the collision was partly caused by Adam's negligence, alleging that he rode into the road from behind a van and into the path of the Fiat, failed to wait until the Fiat had passed before riding into the road, and failed to keep a proper lookout or to ensure it was safe to cross before attempting to do so. A further claim of contributory negligence based on Adam's failure to wear a cycle helmet was not pursued at trial.
Contributory negligence – evidence
Adam could not give evidence because of the injuries caused to him by Mr McDonagh's negligence. Even though contributory negligence can only be established if the Defendant proves it Mr McDonagh did not give evidence. Ms Gumbel QC has drawn the court's attention to cases about the drawing of adverse inferences from a Defendant's failure to give evidence in a civil case. Mr Methuen QC for MIB suggested that Mr McDonagh's absence makes no difference because his position is already conceded to be as bad as it could be on all relevant points. He might however have been able to state what happened when the car first came to a stop, an issue relevant to the question of the speed at which the car was travelling on impact. Furthermore cross-examination of Mr McDonagh about some of the points put forward in relation to contributory negligence by one expert, Dr Searle, may have been instructive. Of course the Court tries the case only on the evidence before it without speculating about what else might have been available. The absence of the Defendant merely highlights the paucity of evidence available to discharge the burden of proof.
There was one witness of fact on this issue, Ms Dawn Lansdown, who lives in Eastdown House, Amhurst Road and who was walking along the footpath between Blackdown House and Amhurst Road when she saw Adam cycling up to the junction. She was with her young son and daughter. Ms Lansdown noticed that Adam was standing upright on the pedals but had stopped peddling and was looking, according to her witness statement, left and right although in evidence she said that she could not remember him looking left. In cross-examination some emphasis was placed on the fact that in an...
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