Parmer v Big Security Company Ltd & Ors [2008] EWHC 1414 (QB)

Case No NOT KNOWN[2008] EWHC 1414 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Friday, 18 April 2008
Strand
London WC2A 2LL
Before
MR JUSTICE WYN WILLIAMS
Between
PARMERClaimantBIG SECURITY COMPANY LIMITED & OTHERSDefendant
Digital Transcript of Wordwave International, a Merrill Communications CompanyPO Box 1336, Kingston-Upon-Thames, Surrey KT1 1QTTel No: 020 8974 7300 Fax No: 020 8974 7301Email Address: mlstape@merrillcorp.com
Mr Andrew Roy (instructed by Messrs Reynolds Macdonald) appeared for ClaimantMr James Burton (instructed by Messrs Beachcroft) appeared for Defendant
JUDGMENT
[1]In these proceedings the claimant seeks damages for personal injury sustained in an incident which occurred immediately outside a public house known as Walkabout, which is situated in Crown Hill Road in or near the centre of Croydon. The claimant alleges that he sustained his injury because a man by the name of Zack Colby pushed him against a temporary barrier which had been erected between the pavement and the road immediately outside the entrance to the premises which I have identified. The defendant is the owner or occupier of Walkabout and it is also responsible for the tortious acts, if any, of Mr Colby. About that there is no dispute.[2]The claim, however, is hotly disputed. The defendant's case is that Mr Colby himself had been the subject of an unlawful assault perpetrated by the claimant upon him literally split seconds before the claimant sustained his injury. It is said that in the immediate aftermath of this assault upon him Mr Colby put out his hands in order to restrain any further assault by the claimant and it was this act (which, submits the defendant, was entirely lawful) which caused the claimant to fall against the temporary barrier and then into the road.[3]It is common ground that as a consequence of the claimant going to ground he suffered an injury to his head. Initially it was life threatening. He apparently suffered a rupture of an artery within his brain which in turn led to an extradural haematoma. He also sustained brain concussion. Very fortunately for all concerned, however, the claimant has made a complete recovery from this significant injury save in this one but important respect. It is accepted by the defendant that one of the consequences of the claimant's injury is that he has no memory of the relevant events immediately leading up to his sustaining injury.[4]I should say at the outset that Mr Colby was prosecuted as a consequence of this incident. He was charged with the offence of causing grievous bodily harm but he was acquitted by a jury. I have been provided with the transcript of the proceedings in the Crown Court and to some extent the evidence in those proceedings has been considered in detail in this trial. I should make it clear, however, that the verdict of the jury has no real relevance to the claim before me. In the Crown Court trial the burden was upon the Prosecution to prove that Mr Colby had acted unlawfully. He raised the issue of self-defence and in the Crown Court trial the burden was upon the Prosecution to negative that defence and the standard was a very high one. It had to satisfy the jury so that the jury was certain that Mr Colby was not acting in self-defence. As will become apparent, the principles upon which I have to act are very different.[5]The evidence adduced by and on behalf of the claimant paints the following picture of the hours leading to the incident in question. At sometime between 8pm and 9pm on 17 January 2004 the claimant and his nephew, Bavesh (and I will call him that in the remainder of this judgment), together with other friends, went to the Walkabout public house. They did so because one of the men in their group was leaving work and the men were out for a celebration. The claimant remembers drinking some pints of lager after his arrival at the public house. Some time later he started to drink vodka. He willingly acknowledges that he drank a number of double measures of vodka during the course of the evening. It seems likely that he was drinking with a number of other men and that they were drinking together in rounds. So even on this account it is obviously very likely that the claimant was the worse for wear in terms of drink by about 2am in the morning. The claimant's last recollection of events before the incident in question was of dancing in one of the dance areas which exist in the Walkabout public house.[6]Shortly before 2am on the Sunday morning the claimant's nephew Bavesh noticed that the claimant was talking to a doorman near the main bar at the premises. The claimant, he said, was leaning against a round table when this discussion was taking place. On any view Bavesh must have sensed some kind of trouble because he went over to speak to the doorman and his uncle. He does not recall exactly what was said but the substance of what the doorman said was that his uncle was drunk and that he would have to leave the premises. Bavesh's reaction to this was to tell the doorman that he was the claimant's nephew and that he would take him home immediately.[7]Although there is no evidence adduced on the part of the claimant to this effect, it seems clear to me even on this account that something must have occurred to draw the doorman's attention to the claimant. Be that as it may, according to Bavesh, once he had had the short discussion with the doorman the claimant and he began to walk towards the exit. As they did so, according to Bavesh, a second man approached. He was also a doorman and his manner was apparently aggressive. He is described by Bavesh as being a short, white male with a skinhead type hairstyle. By the time Bavesh and the claimant had reached the exit a number of other doormen had arrived in its vicinity.[8]Before continuing with the narrative of the case presented on behalf of the claimant I should describe the entrance and exit area to the Walkabout public house. It can be seen clearly from a plan produced in evidence (and I refer to page 392 of the trial bundle) that the area leading into and out of the public house consists of a comparatively narrow corridor. Assuming a customer is leaving the premises from the main bar area, he would ascend a short flight of steps and then walk to a set of double doors which are no more than perhaps a few feet from the top of the steps. Having gone through that set of double doors the customer is then faced with a second set of doors. Measurements agreed between the parties show that the distance between the two sets of doors is 2.83 metres and it is over that distance that the corridor to which I referred exists. Once through the second set of doors one does not immediately arrive on the pavement outside the public house. There is a covered area which slopes downwards towards the pavement and as one is leaving the premises at the side of that covered area there is a wall. As I understand the claimant's case, the doormen, who were described by Bavesh as being present at the area of the exit, had congregated at or near the inside set of doors.[9]I return to the account which Bavesh gave as to how events unfolded once he and his uncle reached the exit from the public house. Having reached the inside set of doors Bavesh says that he explained to the doormen who were present that he was taking his uncle home. He and his uncle then walked through the two sets of doors and, having done so, Bavesh says that he turned to face a doorman. At this point he was telling the doorman that they were going and he does not remember the claimant speaking at all. What then happened is described by Bavesh in his witness statement as follows, and here I quote from paragraph 7: "Suddenly I was pushed by the doorman with the skinhead haircut to my chest. Jayesh [which is a reference to the claimant] was standing on my right-hand side. I fell backwards and so did Jayesh and we both fell over a barrier. I fell onto one of Jayesh's legs and got up immediately. I confronted the doorman and said: 'Look, there was no need for that.' I do not remember him making a reply." [Quotation unchecked.][10]In paragraph 9 Bavesh went on: "I would describe the man that pushed me as being white and aged in his mid 30s with a shaved skinhead haircut and his right eyebrow was pierced. He was of slim build and was about 5 foot 8 or 9 inches tall. He was wearing a black jacket and was basically dressed all in black." [Quotation unchecked.][11]At paragraph 10 he says: "I had a clear and unobstructed view of him. He was only a metre away from me when he pushed me. I had no trouble seeing him because the light was good at the entrance/exit doors. The whole incident took no longer than one minute." [Quotation unchecked.][12]As is apparent from that account, it is a description of he, Bavesh, being pushed and it seems to imply that the claimant ended up on the floor only because in some way he was taken over when Bavesh himself was pushed.[13]There is, however, another eyewitness account given on behalf of the claimant which throws a somewhat different light on what occurred. Outside the club at the relevant time was a man called Mr Attra. He was one of the men who had gone to Walkabout with the claimant at about 8 o'clock or thereabouts on the Saturday evening but he had not remained there. He had gone to a different public house, having spent an hour or so at Walkabout. Sometime after midnight, and certainly before the relevant events occurred outside the public house, Mr Attra and three of his friends returned to the vicinity of Walkabout so as to wait for their friends and colleagues who were still inside. Mr Attra told me that he was standing in Crown Hill Road and he was looking at the entrance to Walkabout when the claimant and his nephew emerged. According to Mr Attra, he saw the two men emerge together with several men whom he described as bouncers in close attendance. The men appeared to exchange words and then, according to Mr Attra, he saw one of the bouncers push the claimant over the barrier. The claimant appeared to land on his head and did not move and in consequence Mr Attra immediately ran to his assistance.[14]There was nothing about the evidence given by Mr Attra to suggest that his view of what occurred was in any way obstructed, although obviously on his account he was many metres away from the events as they unfolded. Mr Attra was aware of the presence of the three other men with whom he was standing near the Walkabout. Other than the claimant and his nephew, however, he was unaware of any other friends or colleagues standing in the road at the time he saw the claimant suffer his injury. On that issue Bavesh was in agreement. He too was unaware of any other person from inside the club being in the vicinity of the place where the claimant sustained his injury.[15]The defendant called evidence from two eyewitnesses in support of its case. They were Mr Colby himself and a second doorman, Mr Cox. For the avoidance of doubt, when I use the expression "called evidence" I mean they gave live evidence in this courtroom. It is also the case that a number of descriptions of this incident were put in evidence in written form from other doormen. In this summary, however, I focus upon the evidence of Messrs Colby and Cox for the present time. Their account of events is markedly different to that given on behalf of the claimant.[16]Mr Cox says that this incident began because he was contacted over his radio about an incident which was taking place in the main bar area. He himself at that time was situated at the exit and he was called to assist with this incident and, so he told me, he immediately made his way to the bar area, having been called over the radio. As he did so he observed the claimant and his nephew trying to fight with a white male in the bar area of the public house. As a consequence he approached them, told them it was time to leave and asked them to walk to the doors. Although Mr Cox did not mention it expressly, it seems clear to me that he was probably accompanied, if not from the outset then very shortly thereafter, by a second doorman who was called Balvinder. The claimant and his nephew did not respond sensibly, according to Mr Cox. They became aggressive and in consequence it was necessary for Balvinder and he to escort them to the exit.[17]When the claimant, his nephew Bavesh, Balvinder and Mr Cox reached the inside door, Mr Cox says that he was the victim of an assault. His earliest written description of this assault is contained in an incident report which he completed himself in his own handwriting within an hour or so of the incident taking place. He described it in this way: "At the front door one of the males decided to grab me by the back of my neck so I forced him against wall and told him: 'Calm down and walk outside.' At this point his friend grabbed me from behind around neck also and he was pulled off me and walked whilst being restrained towards entrance." [Quotation unchecked.][18]Mr Cox went on:
"He then slipped into rail and fell."
He, of course, is a reference to the claimant.[19]Mr Colby also described the assault upon Mr Cox. He says that he had been asked to attend at the front door via his radio and he too went from a position well into the centre of the club towards the front door. As he arrived at the front door he noticed something occurring and he set out what he saw in paragraph 14 of his witness statement. The relevant part of that paragraph reads as follows: "I saw Dean Cox, who was another doorman working in the club at the time, being attacked by two Asians. Mr Parmer [which is a reference to the claimant] had his hands around Dean's neck as if he was trying to throttle him. I grabbed his arms and tried to pull him away from Dean. Then the rest of his friends suddenly appeared and there was another couple of doormen. There was then a general rabble." [Quotation unchecked.][20]Following the assault upon Mr Cox, as described by Messrs Colby and Cox, both the claimant and Bavesh were escorted from the premises. Mr Colby's account of that is contained within the remainder of paragraph 14 of his witness statement. It reads: "I followed my training to try and control the situation as best as possible. However, it was difficult because Mr Parmer and the rest of the customers were being violent and everyone was being pushed around. I tried to form a line with the other doormen to push the customers backwards with open palms to try to ensure that they left the club so that no one was hurt. I do remember that there was some momentum from behind me and Mr Parmer was pushed backwards. It all happened so fast and there were so many customers who kept trying to fight with all the doormen. I know that Mr Parmer fell over the barrier. He just fell and did not seem to put his arms out to try to break his fall." [Quotation unchecked.] I pause there simply to say that on that account as given by Mr Colby he seems to be suggesting that a considerable number of persons were involved and that many of them were customers from within the club.[21]At some point in the sequence of events from the time when the incident began at the inner doors to the time when the claimant fell against the barrier, Mr Colby suggests that he was kicked. He deals with that kick in his witness statement at paragraph 16. It is an oddly phrased paragraph. It says this: "I was injured as somebody kicked me in the groin. Afterwards I had a bruise that extended from my groin to my knee. I took photographs of the injuries and these were passed to the police. I do not know what has happened to the photographs now." [Quotation unchecked.][22]I say it is oddly phrased because, firstly, it does not specify in any way at all when in this sequence of events the kick was delivered. Secondly, it does not seek to identify any person as being the perpetrator of the kick. Thirdly, perhaps not as importantly, it suggests that the photographs are missing yet they were happily produced in evidence before me. Although that is how Mr Colby's witness statement reads, when he gave his oral evidence his description of events became much more precise. He alleged that the kick was delivered immediately before the claimant fell over the barrier and, although he still was not prepared to say that he was certain that it was the claimant who delivered the kick, it was clear from his positioning and from the position of other people engaged in this incident that on Mr Colby's account it must have been the claimant who kicked him. Further, according to Mr Colby, having kicked him, the claimant then squared up to him as if to offer further violence.[23]Before I go on to deal with conclusions about these conflicting accounts, it is also worth noting what Mr Colby says about the immediate aftermath. I refer now to paragraphs 17 and 18 of his witness statement. They read as follows: "We were all following the techniques that we are trained to use to try to avoid violence. All of the doormen that were working that night were experienced and trained, as was I. I believe that we all dealt with the incident in the best way possible. Despite the fact that the group were being incredibly aggressive, had tried to strangle Dean, had kicked me hard in the leg and the fact that we were outnumbered about four to one, we all followed all of the techniques in which we are trained. The reason there were so many of the customers was because the original group was about ten men and they were joined by about seven or eight when they left the club. That was also the reason why I was not able immediately to go and see how Mr Parmer was after he fell. It was not the kind of situation where I could simply go over and do first aid as I would normally do. There were too many customers attacking the doormen and they had bottles. If I had stopped to try to attend Mr Parmer I would have been even more badly injured. I was trying to protect the other doormen and myself." [Quotation unchecked.][24]In resolving these starkly conflicting descriptions of events, which must have taken place over seconds, I have been greatly assisted by the fact that CCTV cameras were positioned within and immediately outside the public house and a good deal of what the witnesses described to me was caught on camera. From my viewing of the actual footage and from stills of the footage which are within the trial bundles it is possible, in my judgment, to reach firm conclusions about some aspects of the case.[25]I have been provided with films taken by two cameras positioned outside the club. The first camera was positioned some distance from the club, along the road. The second camera was positioned immediately over the covered area which adjoins the pavement. I will call the camera which is positioned some distance away from the club camera 1, as did the parties, and the second camera, camera 2.[26]The first film taken from camera 1 of any relevance was taken at 1.56.53am. It shows the area immediately outside Walkabout. It shows one figure on the pavement in the vicinity of the entrance and possibly part of a second figure, who is much nearer the entrance. It shows the temporary railings standing near the edge of the pavement. Beyond the entrance to Walkabout one or two figures can be made out but there is no evidence of any groups of men in the vicinity of the entrance to Walkabout.[27]The next photograph from this camera is taken three seconds later, 1.56.56. By this time there are more people on the pavement outside Walkabout, the railings have fallen over and there appear to be men lying in the road. In the distance there are other figures but again there are no obvious groups of men and certainly no obvious groups who have any connection with what is going on immediately outside the entrance to Walkabout.[28]I next deal with the camera positioned above the entrance to Walkabout. At 1.56.52 the railings can be seen clearly adjoining the pavement. The film possibly shows some part of a person's body, though that is probably not a safe conclusion. The next picture from this camera, however, is one second later. By this time a number of persons are clearly on the pavement outside Walkabout, but equally clearly they are coming from the pub itself. The persons are a doorman called Dave, Bavesh, Mr Colby and another doorman. There is the head of one other person and it has been suggested that that is the claimant. In my judgment, that is probably correct. In this film he appears to be no more than a couple of feet away from the doorman who is near Bavesh and no more than a couple of feet away from Mr Colby.[29]The third photograph or film from this camera is taken two seconds later. All the men shown in the photograph have been identified. Six men are in a huddle and one man using a walkie-talkie is a foot or two away from the huddle. The men in the huddle are Dean Cox, Balvinder, Mr Colby and a doorman called Dave. They appear to me to be in a line facing the temporary railing and between the railing and these four men are Bavesh and the claimant. The man with the walkie-talkie is a man identified as Bill and, to repeat, he is obviously a doorman too.[30]In the next film, which is one second later, the rail has fallen over. Bavesh and the claimant cannot be seen but no less than six doormen are huddled together at the edge of the pavement. There are further films from this camera between 1.56.58 and 1.57.48. In one film Bavesh can be seen either throwing a punch or warding off a punch, but otherwise the only persons shown are doormen. I should say that the film which shows Bavesh either throwing or parrying a punch is one taken at 1.57.07. This would have been just over ten seconds after Bavesh had landed in the road and clearly he had gone back towards the club so as to remonstrate about what had occurred.[31]The third camera which is relevant to my consideration of what happened outside the pub is the camera which was positioned somewhere in the corridor leading into and out of Walkabout. The relevant films from this camera span the timeframe 1.56.41 to 1.56.57. At 1.56.44 there is a film which shows a person being taken through the outside set of doors, and therefore outside the public house, by a doorman. The great preponderance of the evidence before me is that the person being taken out was the claimant and the person escorting him Mr Cox. That is my conclusion. Essentially the claimant is going through the second set of doors (by which I mean the outside set of doors) at the time this film is taken. A film taken two seconds later shows the claimant's nephew in much the same position as the claimant had been two seconds earlier. He, Bavesh, is just about to walk through the outside set of doors and he is apparently being ejected through those doors by three doormen. It is worthy of note that the doorman Dave is not one of those three, although he can be seen to be some feet behind them.[32]At this point in time the claimant is clearly visible outside the public house but leaning against the wall to which I have referred earlier in this judgment and more or less at the point where the wall meets the inner edge of the pavement. One second later a film shows the claimant to be in the same position but now Bavesh has gone through the doors and Dave is still towards the rear of the group of doormen. In the next film, which is two seconds later, the claimant is still at his position against the wall and there appears to be some kind of struggle in that one at least of the men surrounding Bavesh seems to be attempting either to push his way through the group or pull at someone. This man has not been identified in the course of this trial. It seems to me to be wholly unlikely that he was a doorman. If he was he would have been identified, in my judgment. The probability is therefore that he was one person from within the club and probably part of the claimant's group. One second later there still appears to be unrest in the group of men. The claimant's head is visible. It is not possible, in my judgment, to discern from the photograph whether or not he has moved from his position against the wall and if so by how much.[33]It is at this point, however, for the first time that Mr Colby becomes visible in this sequence of films. He can be seen at the rear of the group, making his way towards it. At 1.56.52 the claimant is no longer visible. There is a group of men clearly heading away from the pub and Mr Colby is visible, still at the rear, but apparently using his arms so as to allow himself to clear a pathway towards the front. In the photographs taken at 1.56.53 and 1.56.55 all that can be seen is that the group of men have moved further and further away from the outside doors of the club and towards the railings. By marrying the films from cameras 2 and 3 it is possible to see that in the space of two seconds Mr Colby has pushed himself from the rear of the group of men to be at or about the front of the group and clearly by 1.56.55 he is in the line of men who are facing the claimant and his nephew.[34]In the light of the witness accounts and the CCTV camera films to which I have referred conclusions can now be reached. I first deal with the issue of whether or not the claimant was pushed and by whom. In his evidence (by which I mean his oral evidence in court) Mr Colby was not disposed to accept that he pushed the claimant. He claims that all that he did was to hold his hands in front of him and somehow sufficient contact occurred with the claimant to propel the claimant backwards.[35]I reject that evidence on the part of Mr Colby. I do so firstly and primarily on the basis of the CCTV films and in particular from the film from camera 2 at 1.56.55. The still shot of that film is page 160 of the Trial Bundles. In my judgment, the position of Mr Colby as shown on the film and in the still is much more consistent with a deliberate push than the sequence which Mr Colby described. Indeed on the basis of the film I go so far as to say that three doormen, Dave, Mr Colby and Balvinder, are all adopting a stance which is consistent with their together pushing the claimant and his nephew against the rail and it is important, in my judgment, that at that point the rail is still standing.[36]The second reason why I reject Mr Colby's account of there being no push is the evidence of Mr Attra. He told me unequivocally that he saw a man push the claimant. That man on the whole of the evidence must have been Mr Colby and I accept that Mr Attra did see a push.[37]The third reason why I reject Mr Colby's account of there being no push relates to that which he himself said in the immediate aftermath of this incident. As it happens the police were very quickly at the scene of the incident. They arrived literally within minutes. The first account which Mr Colby gave was to a police officer by the name of Sullivan. His statement appears at page 363 of the trial bundle. I appreciate, as Mr Burton submits, that no Civil Evidence Act notice has been served in respect of this evidence, but in my judgment that is a procedural formality which I am entitled to ignore. This evidence was put in the bundle, there was no objection to me reading it and, in my judgment, I can receive it as evidence. The material part of it reads as follows:
"Police officer: Can you please tell me what has happened here?"
The statement then goes on: "He described himself as the head doorman of the Walkabout [and I interpose to say that must be a reference to Mr Colby] and informed me that he had seen nothing other than what he knew was a scuffle with punches being thrown and his staff pushed the crowd back from the front of the bar." [Quotation unchecked.][38]I emphasise the fact that, although he was not attributing it to himself, Mr Colby was accepting that there had been pushing by members of staff. In a second short exchange with another police officer (and now I refer to page 365) this exchange took place: "Can you tell me what happened? [Answer:] Zack said to me there was an incident at the front entrance and I pushed several males away from the door. The combined body weight of all the males sent a few of them into the crash barrier. [The officer then said:] You were apparently clearly shown on CCTV shoving the male into the barrier so that he fell over backwards, hitting the floor, where he remained unconscious. Can you explain that? [The reply Mr Colby gave was:] I cannot." [Quotation unchecked.][39]Finally I should refer in this context to what happened after Mr Colby was arrested. As I have already indicated, a prosecution was brought against Mr Colby in consequence of this incident. Following his arrest, however, he was taken to a local police station and thereafter he was attended by a solicitor. As is commonly the case in the immediate aftermath of an incident such as this, police officers wished to interview Mr Colby under caution about what had happened. When his interview took place Mr Colby declined to answer any of the questions put to him. That was his right and in this court I say nothing more about that aspect of the case. However, when the questions were put to him and he answered "no comment", it was also made clear by the solicitor acting for Mr Colby that he, the solicitor, had prepared a written statement based upon Mr Colby's instructions and he, the solicitor, was anxious that that be read into the record of the interview. In due course it was. I will read the whole of it so as to avoid repeating it later in this judgment. The prepared statement reads: "My name is Zack Octavius Colby. I am 32 years old. I am a doorman registered by the London Borough of Croydon. On the night of 17/18 January I was working in the Walkabout public house, Church Hill in Croydon. Just before 2am I received a message via my earpiece to say that some of my colleagues were experiencing trouble at the inner door area. I made my way there and saw one of my colleagues against a wall with four, five or six Asian males surrounding him. One of them had him by the scruff of the neck. I grabbed one of the males and escorted him from the foyer to outside. He was walking backwards and I directed him using my open palms. This is a recognised, non-aggressive method of ejecting people. I gave the male a small shove outside the doors. I was aware that quite a number of people had come out of the club behind me, as I was unable to step backwards. I then became aware that the male I had just ejected looked as if he was about to punch me. I could not step back and I therefore pushed him away, again using my open palms. As I pushed him I myself was pushed from behind. I then made my way back to the club as I believed there may still be trouble inside." [Quotation unchecked.][40]In my judgment, that statement contains a clear admission of pushing. True it is that Mr Colby also says that some of the force of the push was transmitted by him being pushed from behind. I find it very easy to reject that suggestion, however, having viewed the films to which I have referred. There is simply no basis for that conclusion when one looks at the film identified at page 160 of the bundle.[41]Consequently and for those principal reasons I find that Mr Colby did push the claimant. It was a push of some significance and it caused the claimant to fall against the barrier and then into the road.[42]Was that push a lawful act? In the context of this case it is accepted that it was lawful only if it was in self-defence or in defence of another or perpetrated to prevent a crime or a breach of the peace. That is to describe matters in general terms. It is to be noted, however, that Mr Colby did not seek to justify the push by any other means or upon any other basis than that it was a push in lawful self-defence. His explanation of the push was that he was acting in that way because the claimant had kicked him and because the claimant squared up to him in a fashion which led him to the view that a further attack was imminent.[43]Before dealing with those essential factual issues I should say something about the law as it relates to a deliberate assault and the law as it relates to the defence of self-defence as it is applied in the context of civil proceedings.[44]Mr Burton on behalf of the defendant, not unnaturally, relies entirely upon the statement of principles to be found in the decision of Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398, a decision of the Court of Appeal. It is sufficient for the purposes of this judgment to read the headnote, or at least parts of it. The relevant facts in Ashley were these:
"The police raided the flat [of the person who was killed] in the early hours of the morning with a warrant to search for drugs. During the raid the deceased, who was naked and unarmed, was shot and killed by a police officer. The officer was subsequently acquitted of the deceased's murder. The claimants, the father and the son of the deceased, brought actions against the chief constable of the defendant police force for, inter alia, assault and battery, negligence and false imprisonment in respect of the planning and execution of the raid. The defendant admitted that it was liable in negligence and false imprisonment but resisted the assault and battery claim on the basis that the police officer had acted in self-defence in the mistaken belief that the deceased was armed and about to shoot. The judge gave summary judgment for the defendant in respect of the assault and battery claim, holding that the claimants bore the burden of proving that the police officer had not acted in self-defence. "
[45]On appeal the Court of Appeal allowed the appeal. The Court held that:
"In a civil law action the burden of proving self-defence was on the defendant; that, in civil proceedings, a defendant who mistakenly believed that it was necessary to act in self-defence must show that his mistaken belief was reasonably held and that the force he used was reasonable; that whether or not the mistake made and the force used were reasonable depended on all the circumstances of the case, which included the fact that action might have had to be taken in the heat of the moment; and that, in the circumstances, [there was a legitimate issue as to whether or not self-defence was made out and the summary judgment was set aside]."
[46]Before me Mr Roy for the claimant submits that I should not feel bound by the decision in Ashley by virtue of a previous decision of the House of Lords in Regina v Governor of Brockhill Prison ex parte Evans number 2 [2001] 2 AC 19. In a supplementary skeleton argument Mr Roy explains why. I hope I do not do him any discourtesy by saying that in the context of this particular case it is not for me to resolve any tension, if any tension exists, between Evans and Ashley. I regard myself as bound by Ashley and I propose to deal with this case on the basis of the principles laid down in Ashley. As it happens, in the end the case is capable of resolution simply by relation to its facts, although to repeat, I apply the law as stated in Ashley in the context of this case.[47]What then is the evidence in support of the contention that Mr Colby was acting in lawful self-defence at the time he pushed the claimant? Essentially, in my judgment, it is the account given by Mr Colby and nothing else. Mr Cox certainly does not support it. None of the doormen who made reports after the incident describe a kick by the claimant, nor indeed do they have him squaring up for a confrontation immediately before he goes over the barrier. I do not propose to read out the reports made by each of the doormen involved, but so that they can be identified they appear at pages 133, 136, 139, 142 and 145 of the trial bundle.[48]The mere fact that Mr Colby's evidence is unsupported, of course, does not mean that I cannot accept it. However, I have reason to be particularly cautious about accepting Mr Colby's evidence on this point. Firstly, of course, I have rejected his suggestion that there was not a deliberate push. There are further reasons, however, why it seems to me I have to be very cautious about Mr Colby's evidence. Firstly in this list of reasons I identify the fact that his evidence to me, and indeed his prepared statement to the police, speaks of a large number of customers engaging in a melee in or about the entrance to the club. That is clearly wrong. There is no evidence to support it and indeed the objective CCTV camera evidence flatly refutes it. At its highest, one person from within the club joined in a melee during the course of it. But the suggestions made by Mr Colby, for example, that four, five or six Asian males were surrounding Mr Cox, or that a number of men outside the club were attacking the doormen, are simply not supported by any evidence, objective or otherwise.[49]There is then what he said to the police, or rather in this context, what he did not say. At no stage did he mention a kick or that his actions had been brought about because of a kick perpetrated upon him by the claimant. His explanation for that was that when he was in the police station he was under considerable stress. I readily accept he was under stress. Mr Colby is a man with no convictions for violence. He had been arrested at a time when the claimant appeared to be very significantly injured. There can be no doubt that he would have been suffering a great deal of stress in those circumstances. If he had said nothing at all, that perhaps would have been understandable. What is not understandable, in my judgment, is that he would give his instructing solicitor a description of the relevant events but leave out the most relevant part in the sequence.[50]It also seems to me that the description of a kick is not supported by such CCTV films as exist. In this context I am not saying that there was not time for a kick to be delivered; it could have been missed, given that on occasions two seconds went by before the next film was taken. However, when one looks at the demeanour and the positions of the men involved in the incident outside the public house, it seems to me to be unlikely that the claimant suddenly changed from being a passive person, standing against a wall, doing no more than observing what was going on, to be one violent enough to deliver a kick at a very large man. That very large man of course is a reference to Mr Colby. Finally, it does seem to me that Mr Colby's whole account is substantially at variance with what the CCTV camera shows.[51]As I have indicated, the burden is upon the defendant to establish that the actions of Mr Colby were taken in lawful self-defence. I do not believe that that burden is discharged or is even close to being discharged in this case. I appreciate that Mr Colby gave evidence to the effect that he suffered a bruise and that the photographs produced in court showed a bruise. Certainly a bruise such as shown to me could be consistent with a kick. The photographs, however, do not begin to explain when it was that the kick occurred and who perpetrated the kick, if kick there was. I do not go so far as to say that Mr Colby suffered an injury in some way wholly unconnected with this incident which he has now falsely attributed to this incident. However, to repeat, I am far from being satisfied on balance of probability that he suffered that injury by virtue of a kick delivered immediately before he pushed the claimant, Mr Parmer.[52]On the basis of Ashley, of course, I also have to consider whether or not Mr Colby had a reasonable belief that he was about to be attacked by the claimant. If I were prepared to accept that the claimant squared up to him in the manner described, that might be a basis for such a conclusion. In my judgment, however, I am not satisfied even that the squaring up took place as described by Mr Colby. Although it is possible that it happened, there is, in my judgment, no convincing evidence, by which I mean evidence that would satisfy me on balance of probability, that it did happen. Essentially I regard Mr Colby's account of what occurred in the split seconds before the push as wholly unreliable and there is no other evidence which justifies a finding that the claimant was squaring up to him. Accordingly, I do not find that when Mr Colby pushed the claimant he was acting in lawful self-defence. Rather, in my judgment, he was acting unlawfully.[53]I should deal shortly and finally on this issue with how it came to be that Mr Colby behaved in the way that he did. It is difficult to be sure about that aspect of the case. However, it seems to me that the most likely reason for his action is that he did witness violence towards Mr Cox in the club (a point to which I will return) and that he reacted to it and that in the particular circumstances of this case he overreacted. It may be that he himself was engaged in the pub in the manner that he described and that that was when he suffered a bruise to his leg. I do not make specific findings to that effect since the evidence is not sufficiently clear, but it does seem to me that the probability is that Mr Colby acted as he did because of what had occurred some seconds before at or about the doors to the entrance/exit of the club.[54]So far as the claimant's own conduct outside the public house is concerned, it seems to me that I can say no more than it is possible that he moved a foot or two away from the wall just as the group of men were emerging from the public house. There is no other evidence, in my judgment, as to what he did and I am not prepared to say that in the second or two which must have followed from him moving from his position against the wall he did or said anything which could have justified the push against him. It follows from those findings that I am of the view that the claimant has proved that he was the victim of an unlawful assault and battery and that his claim should succeed.[55]However, in this case there is also a very live issue about whether the claimant contributed to his own injuries, a live issue about whether or not he should be categorised as having been guilty of contributory negligence, and it is to this issue which I now turn.[56]It is common ground that the defence of contributory negligence can be raised, either partially or wholly in extreme circumstances, to a claim such as the present one. In other words, the defence of contributory negligence is available to meet a claim for assault and battery. The issue of whether or not it is appropriate to make a finding of contributory negligence in this case turns, in my judgment, upon what happened inside as opposed to outside the club. On this issue there is no CCTV footage to assist. Accordingly, I have to grapple with the oral evidence of witnesses, which I have already described as being unreliable, and for the avoidance of doubt that relates just as much to Bavesh as it does to Mr Colby and Mr Cox. Accordingly, in judging what happened inside the public house it seems to me that I should be guided very much by what are the probabilities when one looks at an incident of this kind.[57]The account given by Bavesh as to what occurred in the public house is, in my judgment, improbable. His account would have me believe that a number of doormen congregated at the door, all at the same time, when all that was happening was the two men who were acting perfectly peacefully and normally were being escorted from the club. In my judgment that is wholly improbable. It is much more likely that events inside the club had caused, firstly, Mr Cox and Balvinder to attend upon the claimant and Bavesh and, secondly, the events between those four to cause the doormen to seek further assistance at the exit.[58]In my judgment, the probability is that when Mr Cox and Balvinder first approached the claimant and his nephew they did so because the claimant and his nephew were engaged in some kind of altercation with a man. I cannot see why it is that they would have been contacted over their radios unless something like that was happening. I accept Mr Cox's eyewitness account that he actually saw some kind of altercation between Bavesh, the claimant and another man. I also accept that as the claimant and his nephew Bavesh were being escorted towards the exit they were not going willingly. That is why, in my judgment, more doormen were summoned to arrive at the exit. I also accept that at the exit violence escalated.[59]There is some confirmation for that general picture from the CCTV footage which showed the men being escorted out of the public house. It is not direct support but, in my view, does form some indirect support for the scenario which I have described. I say that by reference to the camera films taken at 1.56.44 and 1.56.46. The first film shows the claimant being escorted out of the premises by Mr Cox. The second film, two seconds later, shows his nephew separately being escorted by a number of doormen. In my judgment, if they were going quietly and peaceably, as they have suggested, the likelihood is that they would have gone through the doors more or less together. Although two seconds is not a great deal of time on any view, in my judgment, the fact that they were separated for that period of time does tend to suggest that they were both engaged in some kind of assault, probably upon Mr Cox, and they were separated from each other during the course of that incident.[60]I find as a fact that Mr Cox was subject to some kind of violence. The probability is that one or both of the men did try to take hold of him and I do find that the claimant voluntarily participated in that violence. The extent of what he did is very difficult to discern from the evidence, but on balance of probability I am prepared to accept that at some point he did try to put Mr Cox in what can be described as some kind of headlock by trying to put his arm around his throat. However, this was a very short-lived episode, many doormen were present and I am quite satisfied that within literally a second or two this assault upon Mr Cox was over and the two men ejected.[61]The assault upon Mr Cox occurred at the very least about ten seconds before the push on the claimant. I reach that conclusion simply by the timeframes of the relevant CCTV camera. In a fast moving, short-lived incident I do not sensibly think that I can say that the assault on Mr Cox had no causal connection with the injury sustained by the claimant. Put another way, the incident involving Mr Cox just inside the public house was part of the chain of events which led to the claimant ultimately suffering injury.[62]Mr Roy did not seek to suggest (and sensibly he could not) that if I found that the claimant was engaged in acts of violence towards Mr Cox that would not amount to contributory negligence on his part. Clearly, in my judgment, if a person engages in violent acts and then shortly thereafter he is the victim of a second violent act which causes him injury, in part he is himself to blame for participating in violence. Accordingly, in my judgment, the ingredients of the Defence of contributory negligence are made out and the issue becomes one of apportionment. How should I apportion responsibility for the claimant's injuries, given that I hold that both he and Mr Colby were to blame?[63]As with most aspects of this case, the parties cannot agree about apportionment. The claimant submits that a small reduction only should be made in the damages to be awarded to him on account of contributory negligence. The defendant submits that the claimant should bear the major share of blame. In making that submission reliance is placed upon a decision of the Court of Appeal in a decision called Revill v Newbury [1996] QB 567. In that case the defendant was the owner of a shed on an allotment and he slept there at night in order to protect his property from the attentions of vandals and thieves. Among other items in the shed, however, was a 12 bore shotgun and cartridges. One night the claimant and another man attempted to break into the shed intending to steal from it. The resultant noise woke the defendant, who, intending only to frighten them, loaded the shotgun and fired it through a hole in the door. The shot injured the claimant who was standing about 5 feet away from the door.[64]In subsequent criminal proceedings the claimant admitted attempted burglary of the premises. Nonetheless he brought an action for damages against the defendant for the injury sustained as a consequence of being shot. It is noteworthy, however, that his claim was framed not in assault and battery, but in negligence and in breach of the Occupiers' Liability Act 1984. The claimant succeeded in his claim but in that case the damages were reduced by two-thirds to reflect his own contributory negligence. The Court of Appeal when upholding the decision of the trial judge said little more than that the judge's apportionment was justified and not one with which they would interfere.[65]It seems clear to me that the judge in Revill was heavily influenced by the following factors. Firstly, the allegation against the defendant was one of negligence. It was not being suggested that he deliberately shot the claimant, he was simply negligent in discharging his firearm when there was a person in the vicinity. Secondly, the judge was heavily influenced by the fact that the claimant in that case was at the time he was shot perpetrating a serious criminal act.[66]In the present case there are the following distinguishing features. Firstly, on any view the claimant was not engaged in a premeditated criminal act, even when he momentarily involved himself in the violence upon Mr Cox. Secondly and more importantly, he had ceased to be acting criminally by the time the blow or push was perpetrated upon him. By that stage, in my judgment, he was doing nothing unlawful at all. The other important distinguishing feature is the obvious one. In this case the claim is framed not in negligence but in assault and battery. Mr Colby is said to have deliberately pushed someone and I have upheld that allegation. Accordingly, in my judgment, the considerations which led the trial judge in Revill to apportion blame in such a way as to make the claimant more responsible for what occurred are not features which weigh heavily in the case before me.[67]In my judgment, the important features for me to consider are these. Firstly, the claimant's conduct. As I have found, it was blameworthy in the sense that he was, some seconds before the relevant time, engaging in unlawful violence upon Mr Cox. However, save in the most exceptional or unusual of circumstances, the violence he probably perpetrated against Mr Cox was very unlikely to have caused him any kind of significant injury. What we have here at its highest, in my judgment, was a drunken man attempting to grab Mr Cox in some kind of headlock and that action being stopped literally within split seconds.[68]On the other hand, when one analyses Mr Colby's conduct I have reached the conclusion that one is forced to conclude that it was foreseeably dangerous. Firstly, he was pushing a drunken man towards railings which he knew, or should have known, would collapse under the weight of the man. Consequently he knew, or should have known, that there was a real prospect that the man would end up in the road and strike his body. It was foreseeable, in my judgment, that he would strike his head and, as is obvious, once one can foresee that the head may make contact with a hard surface, one is in the sphere whereby one should foresee the likelihood of significant injury. He was also pushing the man in a direction which was towards the road. Admittedly, this was all happening at about 2am in the morning so that traffic would have been light in all probability. Nonetheless, there was the clear possibility that a vehicle would come along as this was happening or come along so shortly thereafter it happened and that the claimant would still be lying in the road when a vehicle approached. Obviously that was a further factor which increased the possibility of serious injury.[69]In these circumstances I regard Mr Colby's conduct as more blameworthy than the claimant's. I should also add that it was part of Mr Colby's duties to act in a controlled and restrained way. I do not wish to underestimate the difficulties which doormen face on occasions. On occasions they themselves face the risk of very serious injury. However, they have to make judgments about those things as events are unfolding and, in my view, an objective observer looking at this scene would not have regarded any of the doormen in question as being at risk of serious injury in the context of this particular incident. I say that not least because the reality is that the doormen outnumbered the claimant and his nephew by about two or three to one, rather than, as Mr Colby was asserting, it was the customers outnumbering the doormen by four to one. To repeat, therefore, in the particular context of this incident, in my judgment, Mr Colby should have been restrained and controlled and he was not on the evidence in this case and in the manner that I have found. That deals with blameworthiness.[70]I also have to consider what Mr Roy categorises as causative potency. As is obvious, it was the push which was the immediate cause of the claimant suffering injury. Although I have identified his earlier conduct as being part of the chain of causation, when one analyses the concept categorised as causative potency, it seems to me that it is obvious that the actions of Mr Colby had more to do with the ultimate injury than the earlier actions of the claimant.[71]Mr Roy made one further submission in support of his suggestion that the reduction in damages should be small. He said this court should be slow to give a judgment which might send out a signal that in some way the activity of Mr Colby could be justified. I accept that submission in its bare form, but I turn it on its head to this extent. In my judgment, this court should also be slow to send out a signal which seems to condone drunken, aggressive behaviour, and that is what I consider his client was guilty of on this particular occasion.[72]Apportionment of liability in circumstances such as these is extremely difficult. Ultimately I have to identify the factors, which I now have, and I have to try to achieve a just result. In my judgment, the just result in this case is that the claimant should be awarded 70 per cent of his damages. That means that I apportion liability 70 per cent in his favour and I reduce his damages by 30 per cent. If I have done my arithmetic correctly the result is this: damages have been agreed in the sum of £35,000 on a full liability basis and with the reduction which I have concluded is justified the sum to be awarded is £24,500.

Cited in 1 later judgment