Smith v Skanska Construction Services Ltd [2008] EWHC 1776 (QB)

[2008] EWHC 1776 (QB)Case No TLQ/06/1109
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 th July 2008
Before
MR JUSTICE OUSELEY
Between
PETER SMITHClaimantSKANSKA CONSTRUCTION SERVICES LTDDefendant
Mr Anthony Speaight, QC and Ms Kate Livesey (instructed by Rowley Ashworth Solicitors) for ClaimantMr Michael de Navarro, QC and Mr Philip Turton (instructed by Kennedys Solicitors) for DefendantHearing Hearing dates:23 rd, 24 th, 26 th, 27 th& 30 th June 20081 st& 2 nd July 2008
Judgment

Introduction

[1]This action arises out of a tragic car crash which occurred in the early hours of Christmas Day 1996 in North East Thailand. Three people in the Toyota 2L car, including the driver, were killed. The two other passengers, the Claimant and his Thai girlfriend, were very seriously injured. They had just left a Christmas Eve party. No other vehicle was involved; the car left the road on a straight stretch, hit a tree and turned on to its passenger side.[2]The Claimant, a UK national, was employed by the Defendant as a mining electrical engineer. He was on secondment to a Thai registered company, partly owned by the Defendant, which was running the ASEAN Potash Mining site about 300 miles from Bangkok, where he was second in charge. I am satisfied, for reasons which I shall come to, that the driver was Paul Andrew. He was not employed by the Defendant; he was the 22 year old son of another of its employees at the site, Ian Andrew. Paul Andrew was living in Thailand with his parents temporarily and there is evidence that he helped out in various ways from time to time. The two others killed were Ian Langford, employed by the Defendant on secondment as the site mechanical foreman, and his Thai girlfriend.[3]I refer to employment by the Defendant, although the employer at the time was Kvaerner Construction Ltd, following the takeover of the Trafalgar House Group by Kvaerner; in its turn the construction division of Kvaerner was sold to the Defendant. No issue arises out of those changes. The Defendant, to counter various arguments of the Claimant, had tried to rely on the corporate distinction between its 1996 predecessor and the partly owned Thai subsidiary, but it was refused leave to amend its pleadings to do so. This means that the Claimant is to be regarded as employed by the Defendant and the car as owned by it as well. It is therefore not necessary to examine which company in law was the contractual employer.[4]The Claimant says that Paul was driving as the Defendant’s agent, and so the Defendant is liable vicariously for his negligent driving. The Defendant, which did not accept formally but until its closing submissions did not seriously dispute that Paul was the driver, denies that Paul was driving as its agent.[5]The crucial factual issue in relation to liability is whether or not the Defendant’s Project Manager, Richard McIntyre, had authorised Paul to drive that car that night. He was in charge on site; the Claimant was his number two. This issue had been considered by Mr Recorder McLaren QC in 2001 in the Chesterfield County Court, but in the circumstances of apparent bias explained in Smith v Kvaerner Cementation Foundation Ltd ( Bar Council intervening) [2006] EWCA Civ 242, [2006] 1 BLR 244, a retrial was ordered. This is that retrial, but the issues for consideration have sensibly been enlarged, by agreement.[6]I have not read the judgment of the Recorder save to the extent that the parties have taken me to it as a record of the evidence. I have read the judgment of the Court of Appeal so far as necessary to enable me to deal with this next point. In view of the background to the Court of Appeal decision, I told the parties of the extent to which I had acted at the Planning Bar for Trafalgar House Group companies and Kvaerner. I had no continuing contact with them. I would not have thought it necessary to disclose this but for the particular background to this retrial. The parties were content that I should hear the case without inquiring as to the availability of another judge.[7]The question of liability is therefore before me with its various issues. I am also dealing with the factual issues relating to contributory negligence: the Claimant allegedly was not wearing a seat belt, and knew that Paul was unfit to drive through drink. It is agreed that I should determine the percentage contribution for the latter point, if proved, but not the former.

Background

[8]10 UK expats were employed at the ASEAN mining site around December 1996. 1 or 2 were away on leave. 100 or so Thais were employed there in mining and in various support or administrative functions. A compound at the site contained offices, stores, sleeping accommodation for those expats who lived on site, and the vehicle car park. Outside the compound, about 250 yards away up a drive, was the new clubhouse which also had its own small car park.[9]The Defendant owned a fleet of vehicles. This included a Toyota 2L, a Toyota 1.6L, an Isuzu 4x4 seating up to 9 people, 2 pick up trucks and an Opel. The Toyota 1.6L had been damaged in a road accident by Paul Andrew and a replacement Toyota 1.6L had been hired while it was being repaired. Mr McIntyre was in overall charge of allocating the vehicles, although the general management of the vehicles and their insurance was one of the Claimant’s tasks. None were allocated to particular members of staff except for the Toyota 2L, the car involved in the accident, which Mr McIntyre had allocated to himself. It could only be used with his express but verbal permission except when he was away from the site, when the Claimant could give permission for it to be used. This was “completely understood”, as Mr McIntyre put it with some emphasis when giving evidence, and it is not in issue but that the Claimant and Paul Andrew knew that. Generally, said the Claimant, Mr McIntyre would only allow him to drive it. Mr McIntyre said that he allowed others, including Thais, to drive it. No car was specifically allocated to the Claimant; he, like all expats other than Mr McIntyre, had to use the vehicles on a pooled basis. There were not enough for everyone to have one when they wanted one.[10]Most of the expats lived on site. The accommodation was for single occupancy, and the company rules forbad overnight guests. Paul’s parents, Ian Andrew and his wife, were among those who lived off site in Ban Kamping, the nearest village about 4 miles from the site. Those who had girlfriends, among them the Claimant and Ian Langford, could not stay with them on site and made other arrangements as necessary.[11]Paul was not an employee, but he had been authorised to drive company vehicles so that he could undertake trips for his family or help out on company business from time to time. However, a few months before Christmas, he was involved in a minor accident in which he was driving the Toyota 1.6L alone at night, too fast on an unmade track leading to the Andrews’ house. He hit a broken manhole cover and a concrete pole, damaging the car extensively. It was then off the road for repair until some date in December 1996, on one view of the evidence, until Christmas Eve 1996. The evidence differed about whether this accident was in June, September or October. The date does not matter greatly save that it casts doubt over the reliability of the accident book and by association raises questions over other apparently contemporaneous records. Alcohol was involved thought Mr McIntyre, though he could not remember the details. Ian Andrew said that his son had been drinking that night with Mr McIntyre but not such as to affect his driving. Mr McIntyre could not remember that.[12]The upshot was that for a while Paul was forbidden to drive any company vehicle. However, on all the evidence save that of his father, the ban was relaxed over time by the Claimant or Mr McIntyre or both, and by December 1996, he was allowed again to drive company vehicles, but subject to conditions. Mr McIntyre said that he relaxed the ban at Paul’s father’s request. Paul could not drive alone. He could not drive at night, even if accompanied, said Mr McIntyre, unless either he or the Claimant had permitted it. Paul would not have been forbidden to start a journey by day which ended after dark. Only Mr McIntyre and not the Claimant could permit Paul to drive the 2L, by day or night. The Claimant agreed with this. Mr McIntyre was insistent to me that only he and not the Claimant could permit Paul to drive any company car on a journey starting after nightfall, and that this limitation on the Claimant’s authority was well understood by him and Paul.[13]Most of the driving Paul then did was as chauffeur for the Claimant, and a few of those trips were likely to have involved some which finished after dark. He was also allowed to drive his mother in a company car on shopping trips to the local town of Khorat, without any further specific permission. He needed the permission of either the Claimant or of Mr McIntyre for any other trips, taking expats or Thai staff to buy supplies for example. Obviously he could only drive on those occasions when a company car was available from the pool; he had driven the 2L.[14]Mr Andrew on the other hand was adamant that, after the accident, he had forbidden Paul to drive any company car, and that the Claimant and Mr McIntyre knew that very well. Although he said that Paul was an experienced driver in Europe, but very unwilling to wear a seatbelt, he was determined that Paul should not drive in Thailand because of the dangers of drunk drivers, the generally poor level of driving and the number of even quite heavy vehicles which drove without lights at night. He said that Paul had not driven except for one occasion on Christmas Eve when he had driven a Thai engineer to Khorat, for which the engineer had felt the sharp edge of his tongue that same day. Paul had not driven his mother on shopping trips; nor had he driven the Claimant anywhere. Paul had not done odd jobs for the company around the site and was only ever there for social reasons. If Paul had been driving more regularly, he would have found out through the Thai staff or the expats, and it could not have been kept hidden from him. He did not believe that Paul would have driven a company car, keeping silent about it when chatting to his father at the end of a day, even though Paul would have known that he had been defying his father’s instructions.[15]The Claimant had been involved in a road accident in September or November 1996. He was driving a Toyota 1.6L car which the company had on hire while the Toyota 1.6L, which had been involved in Paul’s accident, was being repaired. He saw a vehicle at night without lights ahead of him at the last minute and pulled out to get round it. This was just on the approach to a road junction which he was not aware of, and he crashed into a vehicle on the junction, killing a 6 year old girl. He spent a night in custody, but was later released. Blood money was paid to the family of the little girl. The family had accepted that her meeting death in that way was her fate, and in effect had forgiven him. The payment of blood money caused the police, upon payment of a bribe, to alter statements so as to show that he had not been to blame, and so there was no reason for them to pursue the matter and charge him. The memory still clearly affected him and, very early in chief, he gave a long answer about the accident, its aftermath and its longer term effect. He had no longer wished to drive at night, and even by day would, if possible, ask others including Paul to act as his chauffeur on company business, though that was also partly because of laziness he said.Another Toyota 1.6L was hired. As I shall come to, the Claimant perceived a lack of support from Mr McIntyre over this accident, and relations between them deteriorated into resentment and hostility.

The Party on Christmas Eve 1996

[16]Both the Claimant, who had responsibility for safety, and Mr McIntyre, who was in overall charge of the site, had become concerned about the number of drink drive incidents involving local staff. At a safety meeting at which both were present on 6th November 1996, it was agreed that this was not just a local problem but should be raised with all staff to increase awareness of the dangers of drinking and driving. Mr McIntyre was trying a much stricter drink/drive policy for employees.[17]A party was organised for Christmas Eve at the newly completed clubhouse. Expats and Thai workers were invited, as well as the on site representatives of the mine owners who were the client of the Defendant and its Thai subsidiary. The Claimant had made a number of trips over the preceding three days, driven by Paul, to obtain provisions and equipment for the party. They were involved in setting up the electrical equipment for the party on Christmas Eve, including the karaoke machine. He had had a row two days before with his girlfriend, known as Boom to her friends and so called at the trial, but had arranged for her to be brought to the party. This had made him feel responsible for her being in the car when it crashed.[18]Mr McIntyre said that he had arranged transport for after the party, to take the Thai staff and expats back to their towns and villages: two Thai drivers, Somchai and Boonphum, employed by the Defendant or its local subsidiary, would drive them in one of the fleet of vehicles, excluding the Toyota 2L. This did not mean that expats could not organise their own transport using pool vehicles, if they wished to; but it gave them the opportunity to drink without driving. The Claimant said that this arrangement only applied for Thai staff; expats had to make their own arrangements. Normally, cost prohibited expats using Thai staff to drive them. Mr Jewkes, a geo-technical engineer then employed at the site, and Mr Andrew agreed with Mr McIntyre.[19]The Claimant gave evidence that he had agreed with Paul, over the course of that day or thereabouts, that Paul would drive him, Ian Langford and their two girlfriends back to Ban Kamping, where Ian Langford lived opposite the Andrews’ house at which the Claimant and his girlfriend were to stay the night. Ian Andrew agreed that the Claimant and his girlfriend were going to stay the night at his house. Paul would then drive back to the site that night on his own having dropped the four off in Ban Kamping, so that he was on site, ready for an early start the next day when he was responsible for cooking Christmas lunch for the expats and their guests. The Claimant had expected to use the 4x4 for this round trip. Paul was to stay in the Claimant’s room on site. (Mr McIntyre thought it was to be a different room; it matters not save for what it may say about the reliability of their recollections – but it did not in the end help on that point.)[20]The whereabouts of the various vehicles in the fleet assumes some importance in what happened later. Mr Andrew said that seeing the vehicle log out books kept by the company had jogged his memory between giving his statement in April 2007 and his oral evidence: he had left work that evening in the single cab pick up truck, which could seat two passengers or three at a pinch. The Andrews were going to drive the pick up into the site early the next day to help Paul prepare Christmas lunch; so it was kept overnight at their house. He and his wife had been driven back to the party in the 4x4 by Boonphum. There was some uncertainty of recollection about how Ian Langford got to the party, if he had taken the Opel home and left it there, as he had. It was found in his yard after the accident, according to Mr McIntyre. It was thought that he too had come back to the party in the 4x4. Mr Andrew surmised, and it seems reasonable, that Mr Langford and the Claimant, who were very friendly, were to drive the Opel back the next day with their two girlfriends for Christmas lunch.[21]The Claimant said that he had had spent all day setting up the electrical equipment for the party, and preparing Christmas presents. The party had started about 6-7pm and there had been some 20-25 guests. Other estimates were higher, 30 according to Mr Jewkes and 50, possibly 30-40, according to Mr McIntyre; 11 were expats, their wives or girlfriends, and the rest were Thai staff or client personnel. The bar was free but drinks had to be signed for. The Claimant had 4 glasses of beer all evening. He had to make sure that the equipment worked during the evening and had regarded himself as being on duty, so that others could drink. Mr McIntyre did not see it that way.[22]The first couple to leave the party was Bill Stewart and his wife who lived a little beyond Ban Kamping. Mr Andrew’s evidence, which I accept as they had spent most of the time at the party together that evening, was that the Stewarts had left just before 11pm, driving themselves probably in the two cab pick-up, which was the vehicle which Bill Stewart usually used; they drank very little. Times given by Mr Andrew were only estimated because he did not wear a watch. Mr Andrew and his wife had been the next to leave shortly after, and they had got Somchai to take them home in the Toyota 1.6L. He estimated that the trip there and back to the clubhouse, would have been somewhat in excess of 40 minutes for the 8-10 mile roundtrip, partly because of the dirt track up which they lived.[23]As the party drew to its close between around midnight and 01.00, the Claimant and his group looked for the 4x4 in which to go to Ban Kamping. But it was not to be seen. Mr McIntyre had given permission for it to be used as one of the cars to take the Thai staff home; the Toyota 1.6L was the other car to be used for taking guests home. Mr McIntyre said that apart from his car, those were the only two cars left for use.[24]The Claimant said there was also a hired Toyota 1.6L on site. This had been hired to replace the one damaged in the accident he was involved in, and although the original company 1.6L had been repaired and returned, that had only happened either on Christmas Eve itself or a few days earlier. He remembered that he had extended the period of hire to January 1997 so that he would have a car he could drive until he went on leave. Mr McIntyre disagreed: no car would be hired for longer than necessary. It had gone off hire as soon as the other came back. The repaired 1.6L had been returned. Mr Jewkes thought that there had never been two 1.6Ls on site at the same time. I am satisfied, for reasons I give later, that there was only one 1.6L available for use by anyone that night, not two. It is unnecessary to resolve which one it was.[25]It is now that the evidence, although differing in a number of respects over earlier and perhaps telling detail, diverges sharply. The evidence given by the Claimant about how he came to leave, which is at the core of the case, has evolved over time. I shall have to return to this, but for 4 years after the accident he had no memory of what had happened in the last two hours or so before the accident, which would have included quite a time before he left the party. In particular, he had no memory of how he came to be in the Toyota 2L rather than in the 4x4. He began to recover fragments of memory in late 2000 or early 2001. What now follows includes his recovered memory.[26]The Claimant remembered being in the back of the car before the crash with his girlfriend, his eyes closed, concerned that the Andrews might not let him sleep at their house that night because there had been words that evening between Paul and the Claimant over what songs could be sung at the karaoke. Paul wanted to sing English songs but the Claimant said that the karaoke was for the Thai staff and so most of the songs should be Thai songs, some of which had subtitles. Paul’s parents were aware that the Claimant had stopped Paul singing the English songs he had wanted to sing and the Claimant thought they blamed him for Paul appearing to be rather upset before they left.[27]The Claimant said that there was another and more significant reason for Paul being upset that evening, before the Andrews left. At some point, the Claimant had come across Paul by the pool crying. Paul had said that Mr McIntyre had called him a “wanker” who “sponged” off his parents, and who ought to find a job. The Claimant cheered him up, and persuaded him not to tell his father what had been said to him lest his father, who would be sure to take offence at this, took it up with Mr McIntyre and in the heat of the argument a fight broke out between Mr Andrew and Mr McIntyre. The Claimant had then persuaded Mr McIntyre to apologise to Paul; he had given Mr McIntyre, who was fairly drunk, a “bollocking” for what he had said to Paul and had “chastised” him.[28]The Claimant was annoyed that the 4x4 was not there when the four wanted to go, at around 01.00, and had given Mr McIntyre another ”bollocking” for sending it away with Boomphum, who was a slow driver, to take Thai staff to Khorat.He asked Mr McIntyre if he could have the Toyota 2L, telling him that Paul would drive them to Ban Kamping and then return to site with it. Later in answer to me at the end of his evidence, when I asked him if there was any more that he wanted to say, the Claimant said that he had told Mr McIntyre to “gimme the keys” to the Toyota 2L, which Mr McIntyre had with him. He told Mr McIntyre that Paul had not been drinking and that they would only be going to the village which he put at only a 15 minute round trip; Paul would bring the car keys back to him personally when he returned, to which Mr McIntyre replied “Fair enough”, and gave him the keys. The Claimant said he used the incident over Paul to persuade Mr McIntyre to show the sincerity of his apology and his trust in Paul by permitting Paul to drive them to Ban Kamping in the Toyota 2L. There is no doubt but that the vigour of his descriptions of his exchanges with Mr McIntyre that night grew towards the end of his evidence. He could remember where these exchanges took place, at the bar and then on the couch.[29]The group then loaded various presents into the boot of the Toyota 2L, which was parked just outside the clubhouse where it had been all evening, and according to the Claimant for some time that day already. Paul then drove them away, and was driving at the time of the crash.[30]The Claimant maintained that Ian Langford would not have got into the car, had he thought that the Claimant had no permission to take it, because that would have been a very serious matter for Ian Langford: he was already in disciplinary difficulties, as Mr McIntyre confirmed - on a final warning, said the Claimant, who thought Mr Langford would have lost his job. The Claimant did not think that he himself would have lost his job if he had taken the car without consent, according to his oral evidence. His first Witness Statement had said he probably would have been dismissed. These repercussions were regarded by him as strong evidence that he did obtain consent.[31]I come now to Mr McIntyre’s evidence about this. Mr McIntyre was no longer employed by the Defendant; he was made redundant in 2001, and now worked in South Africa for another and unconnected company. He had returned voluntarily to give his evidence for a second time. He agreed that in a statement prepared for the Court of Appeal, he had said that he would not be willing to give evidence again, and could not get time off. He had decided to come back at the Defendant’s request, when the appeal was allowed and he had been able to get time off. He acknowledged that the sequence of events was now difficult to recall and that he had said he could add nothing to his earlier statement. However, he had been able to reply to the further, and as he saw it, untrue evidence in the Claimant’s further statements.[32]He flatly denied that there had been any request, however expressed, by the Claimant or anyone else in his group to use the Toyota 2L or for Paul to drive them in it. There had been no conversation between him and Paul of the sort allegedly reported to the Claimant. He would never have said anything to Paul of that nature; the relationship between Paul and his family was entirely a matter for them and not one in which he would have dreamed of intervening. There had been no apology nor had there been any question of permission to drive being given to Paul as a way of making amends. There had been a short conversation with Ian Langford who had asked when the 4x4 was going to be back and, on being told that it would be 20 minutesor so, had said that he would have another drink and wait. Mr McIntyre later said that it was probably the Claimant rather than Ian Langford who asked when the 4x4 was going to be back. He was aware certainly that the Claimant was upset that it had gone to Khorat. Mr McIntyre had had 4 or 5 pints of beer, and the equivalent of 2 to 3 double whiskies that evening over the course of 5 to 6 hours, “well on the way but not drunk”. His memories of that evening were extremely clear, he said.[33]He denied that he would have given permission had he been asked. This was partly because the Toyota 2L was the only vehicle left on site, and had to be kept there as the safety vehicle as there was a shift underground. It was not ideal as the safety vehicle because of the difficulty of getting an injured person into it; but it was all there was. He had been aware of the Claimant and Ian Langford and their girlfriends leaving. They had been carrying parcels to a vehicle and, from the number of trips and the speed with which they returned to the clubhouse from the vehicle, it must have been parked close by the clubhouse. If, as he was saying, he did not then suppose that that vehicle was the Toyota 2L, he must have thought that there was another vehicle on site, the 4x4 or 1.6L, in which the group was preparing to depart. Indeed, that is exactly what he said he thought, fitting in with the arrangements he had made. Mr McIntyre said he thought the 2L had been left at the compound with the keys on the hook in the office as normal. This was the only vehicle he kept a close track of, so that he knew where it was.[34]He also said that he would not have given permission because the group had been drinking, Paul had too, and because of Paul’s other accident, he would not have permitted Paul to drive having drunk alcohol. He disagreed with the Claimant’s evidence that Paul had only had at most two halves of lager. He would not have permitted Paul to drive alone or at night either, and Paul would have had to do both to get the car back on site as intended. He added in re-examination for the first time that the barmaid had shown him the bar records which showed that Paul had drunk the larger portion of a bottle of vodka and that it was apparent to anyone that he had been drinking more than was good for him. On further cross-examination, Mr McIntyre agreed that he had never said that before, because he had not thought it necessary before to say whether Paul had been over the limit. His evidence had previously been that he could not say how much any one had had, and he had not suggested that he had any more specific evidence. He then could not say whether Paul had drunk more or less than half a bottle, a third, or two thirds. But it had been Paul drinking the vodka. I thought that this part, and this part alone, of Mr McIntyre’s evidence, was produced as something of a card from the sleeve, vindictively and sneakily. The Claimant agreed that there had been a bar record where drinks were to be signed for at the party.[35]Mr Jewkes, who gave evidence by video link from Australia, had been employed on the ASEAN site by the Defendant in 1996 as a geo-technical engineer, but was no longer employed by it. He had lived on site and had got to know the Claimant and Mr McIntyre well. He had been friendly with the Claimant and had visited him in hospital after the accident on a number of occasions. The accident and its aftermath had been a traumatic experience for the comparatively small expat workforce. He said that the ban on Paul driving company cars had been relaxed before Christmas because, before he left on leave, Paul was banned from driving but when he returned to site from leave just before Christmas, Paul was driving again. Paul had driven with his father, the Claimant and perhaps with others. He thought that it had been sufficient if Paul was accompanied by a company employee. But he was not allowed to drive a company vehicle away from the site after dark, accompanied or not.[36]He was clear about how Mr McIntyre regarded the Toyota 2L and how that privilege occasioned grumbles among other expats. In his Witness Statement of 2001, when he was an employee of the Defendant on a project in Hong Kong, he said that that car was reserved exclusively by Mr McIntyre, who permitted no one then to use it. In his Witness Statement of 12th June 2008, he thought it quite inconceivable that Mr McIntyre would have permitted the Toyota to be used by the Claimant that night bearing in mind the other transport provision made, the fact that the use of the two cars to ferry guests home meant that the Toyota was in fact the only vehicle on site while a shift was underground, and the alcohol consumed at the party. Most people, he thought, drank a fair bit. The 4x4 was used to ferry the Thai ladies to Khorat. He had not been involved with the transport arrangements. He did not know whether there had been any conversation of the sort the Claimant had spoken of and was not aware of how the Claimant and the others left the party. He was not aware of any problems at the party; but he was jetlagged and may have left early.[37]Mr Andrew, who retired from the Defendant’s employment in 2001, said that Paul had come out to join him in Thailand, with his mother on 10th October 1996, for a holiday and to keep his mother company. He said that if, at any stage before he and his wife had left the party that night, Paul had agreed to drive the Claimant and his group back to Ban Kamping and then had intended to drive back to the site, Paul would have said something to him when they said goodbye that night. All that had been said was “See you in the morning” to which Paul had replied “OK Dad.” They had left the party in the best of moods. There had been no difficulty of which he had been aware over singing on the karaoke; as he left, Paul and the Claimant were singing together on the karaoke, as they had done on many occasions that evening. There was no sign of Paul being upset about anything; he was cheerful, easygoing and always pleased to help, nor was he sensitive but rather well balanced and even tempered. He was 6’2” and of a build which would not have made him an easy target for bullying or aggression.[38]He rejected the suggestion that Mr McIntyre would have spoken to Paul in the way described by the Claimant; that was the sort of topic which Mr McIntyre would have regarded as none of his business. If he had wanted to raise such a concern, Mr McIntyre would have done that directly with the father, who would have told him that it was indeed none of his business. Paul and Mr McIntyre were friendly, played golf, and had gone to a bar together on the occasion of Paul’s first accident. The party room was not large nor was the party and had there been any harsh words from Mr McIntyre which reduced his son to tears, he would have noticed it if it had happened while he was still there. On the Claimant’s evidence, it must have happened while Mr Andrew was still here, because that, and not the karaoke wrangle, was the real reason for Paul being upset, and it was a possible misattribution to the Claimant which led him to fear that he would not be welcome at the Andrews’ house that night. Mr McIntyre was not abusive or loud when he had had something to drink, according to Mr Andrew, and did not appear, when they left, to have had more than anyone else at the party. The thought that he would have got into a fight with Mr McIntyre, his boss, who was in any event bigger, or that Mr McIntyre would have been frightened of him, as the Claimant had suggested, was not believable.[39]There is no doubt in my mind that Mr Andrew could be vigorously forthright. That was borne out by the way he gave evidence, and also by what he said happened after Paul’s first accident. When he got to work, he got Mr McIntyre out of bed and told him that Paul was not to drive company vehicles under any circumstances, and he told the Claimant the same. He had known Mr McIntyre for many years on many jobs; they were used to speaking their minds to each other on work matters, but respected each other. He described Mr McIntyre as very difficult, but forthright, tough, without real friends. Mr McIntyre did not mix easily away from work. The two were on friendly terms however. If Mr McIntyre was in the wrong over something, he would apologise as he had done in writing and orally on an occasion in 1997 when the two fell out badly, briefly.[40]Mr Andrew felt that considerable tension had existed between the Claimant and Mr McIntyre, which had arisen after the Claimant’s first accident. Indeed, the Claimant had come to hate Mr McIntyre by December 1996. The antipathy was mutual. People were generally aware of this. The Claimant had a big ego, like the next engineer who replaced him, expecting to be treated as if they were engineers back in England. Mr McIntyre said much the same about the effect of the Claimant’s first accident on the Claimant’s attitude towards him. The Claimant seemed to have thought that the company had not done enough to help him, including getting him out of gaol quicker. He began to think he should be treated differently, which was not Mr McIntyre’s policy. The Claimant’s view may have been affected by trauma, but Mr McIntyre felt hostile in return. It had been a continuing saga of problems, issues, troubles and difficulties for which he had no time. They had also had differences over safety issues.[41]Somchai, one of the two Thai drivers, gave a written statement in March 2001 to Mr McIntyre with the benefit of Mr Harn as interpreter; it was admitted under the Civil Evidence Act 1995. He said that the party had ended at about 22.00. Boonphum drove the 4x4 to Khorat; he had driven the Toyota 2L to Chattarat to take staff home there, returning about midnight to take the foreign i.e. expat staff to Mr Andrew’s home. Just as he was about to enter the site, he was passed by the Toyota 1.6L as it left, heading into town. By this he meant Ban Kamping. He waved it to stop but it kept going, with many people in it. He parked on site, and as there was no one else to be taken home, he left at about 00.15. That is what a translation dated 2008 says, and it is agreed to be a correct translation. There was an earlier translation by Mr Harn, made shortly after the original statement in March 2001, which transposed the 1.6L and 2L Toyotas so that it had wrongly shown that Somchai had said that he drove the 1.6L to Chattarat and had passed the 2L Toyota on the way back into the site. There was one other difference in which a staff member was named as the passenger on the trip to Chattarat rather than staff in general. Mr McIntyre’s first Witness Statement of 8 March 2001 said that he had been told by Somchai, on the day after the accident, that Somchai had seen the 2L Toyota leaving the site as he returned in the 4x4. The Claimant said that Somchai could not have been returning and passing the departing 2L because he had returned in the 2L, forty five minutes before the Claimant left, and the Claimant had then sent him home. This was suggested to be a piece of evidential opportunism by the Claimant, seizing on what was clearly a mistake by Somchai, and an error by Mr McIntyre as to who was driving the 4x4 that night.[42]The driver log books were the subject of some debate. Mr McIntyre agreed that Somchai’s and Boonphum’s sheets had each been wrongly headed up by him as being the other’s sheet. Boonphum’s sheet, correctly attributed, records him being on duty, so far as relevant, from 22.00 on 24th December 1996 to 02.00 the next morning, and the vehicle log book shows him taking the 4x4 at midnight, back at 02.00. Somchai was on duty from 09.05 on 24th December 1996 until 01.00 the next day. The vehicle log book shows Somchai taking the 1.6L Toyota at 24.00 on 24th December 1996, and his driver’s sheet shows him back at 01.00. Mr McIntyre in cross-examination, after accepting that the time sheets had been transposed, said that Boonphum had taken the 4x4 to Khorat, which was a two hour round trip or a little more as he tended to dawdle, and Somchai the 1.6L to Chattarat, which was just over a one hour round trip. Mr McIntyre accepted that drivers could sometimes be marked out earlier than they in fact had been, if they had been too slow, or marked out as having worked longer hours than they in fact had as a gesture of goodwill or gratitude. There was a suggestion on the Claimant’s behalf that the records were not all they seemed and that a document at 2/153C, which contained information provided by Mr McIntyre and not derived from those records, showed that other records existed. That document does not contradict the records, and the extra information is of no real significance.[43]I shall deal later with why I conclude that the driver was Paul Andrew. It is sufficient to note at this stage that the crash was discovered at about 01.30 on a long straight but bumpy stretch of road not far from Ban Kamping. The crash occurred in the 2L Toyota. It was discovered by a passing ambulance which took the two survivors to hospital. The police had arrived on the scene no later than 02.00, according to the Police Daily Case Report. Mr McIntyre said that they had then telephoned the security guard on site who had woken him, he thought about 01.30 or 02.00. He had found only the one 1.6L in the compound; the 4x4 was not back yet. He drove the 1.6L to the accident scene. There he had seen Paul dead in the driver’s seat, according to his oral evidence. The other two bodies, which were out of the car, had not yet been removed from the scene. He returned to the site, and the client’s engineer arranged for a Thai driver to take him to the hospital and then on to the Andrews’ house to break the news. It was still dark, remembered Mr Andrews, which meant that Mr McIntyre arrived there before 05.30, on Christmas Day.[44]Mr Harn, the Defendant’s local Administration Manager, who dealt with the administration of the claims under the motor insurance policy, gave evidence in a written statement dated 15 February 2001, admitted under the Civil Evidence Act 1995. He also produced what was described as an informal statement dated November 2000, in which he had described how on Christmas Day, he had had to identify the three bodies, and had gone to the hospital to check that the Claimant and Boom were there. The Claimant was conscious but unable to speak. Mr Harn told the police that there had been five not three people in the car as they had at first thought, because the ambulance which had removed the two survivors had done so before the police arrived. For the rest of the day he worked on the insurance claims and assisted Mr McIntyre in making arrangements to look after the victims. His informal statement said that the police found no evidence of alcohol but they did not have the means to test and did not do so in the event of the driver’s death. No vehicle defects were found. The car might have been going too fast, it had been suggested. There was no evidence that any other vehicle had been involved.

The insurance claims

[45]I turn to the aftermath of the accident because the way in which the insurance claims were dealt with was used by the Claimant to support his evidence that Mr McIntyre must have permitted Paul to drive them in the Toyota 2L that night. He also used it to support other arguments: it showed that the Defendant had subsequently ratified or adopted its use that night, even if Mr McIntyre had not consented to its use by the Claimant; it showed alternatively that the Defendant had approbated the making of a claim which could only be justified on the basis that the Defendant, through Mr McIntyre, had approved the driving of the car that night, or had elected to treat itself as having done so, and could not now in this Court reprobate, or pursue a wholly inconsistent argument.[46]As I have said, although the car was owned by Sofresid (Thailand) Ltd, the Thai registered partly owned subsidiary of the Defendant, it is for the purposes of this trial to be treated as owned by Sofresid as agents for the Defendant. This is not just for the purposes of liability in general but for the purposes of attributing any actions done in the name of Sofresid, in relation to the insurance claim, to the Defendant. It was insured under a policy taken out by Sofresid with the Safety Insurance Public Co Ltd, a Thai company. The policy was in Thai, with either a full English translation kept with it, as the Claimant said, or just a page setting out the crucial cover provisions, as Mr McIntyre said. It was agreed by Counsel that Thai law would have been the chosen law of that contract.[47]The insurance claims were handled on behalf of the Defendant by Mr Harn, as described in his statement. He could deal with the Thai representatives of the insurers in Thai, which Mr McIntyre did not speak at all well. No claim form had been filled in for the claims but the local representative of Safety Insurance had come for a meeting on 8th January 1997 and had requested Paul’s international driving licence, which was valid, the death certificates, proof that the car was one of the Defendant’s fleet covered under the policy, and that Paul was the son of an employee. The representative obtained what further information he needed from the police, and had not asked the company for any more. In particular, said Mr Harn, the insurer had not been concerned about what he called “internal company procedures”.[48]In his informal statement, Mr Harn said this: “The police had reported that Paul Andrew was the driver and the insurance company checked that Mr.P. Andrew had a valid drivers license and confirmed that as the son of an employee who had been authorises to drive from time to time that there was no problem with insurance cover. Mr.McIntyre had been concerned on this matter, as he said the car had been taken without specific permission and Mr.Paul Andrew was not authorised to drive company vehicles at night and no one was permitted to drive after drinking.” [text as per original document][49]Mr McIntyre, who was in overall charge of the claim process, sought advice from Jardines, the Defendant’s brokers. On 9th January 1997, Mr McIntyre sent Jardines a fax together with a report which he had prepared on the accident, it would appear before 4th January 1997. He was already concerned that Jardines should help cover the local angle and that there might be claims against the group’s policies in the UK.[50]The report said this, and some play was made of the introductory words of the second paragraph: “A party was held on Christmas Eve at the New Club House for Expatriate and Thai staff there was two company drivers on duty to take staff home. For reasons still unknown Peter Smith, Ian Langford and Paul Andrew with K Boom and K. Nuan decided to drive to Kamping where Ian and Paul were living they left site at 1.30 in a company vehicle 2.01 Corona with Paul Andrew driving. At the time they left it had been assumed that a company driver would be taking them home. However K Somchai (driver) reported that he had passed them when he returned from Chatturas as they had left on the road from the site.” [text as per original document][51]The report said that the Claimant was by this time in hospital in Bangkok; (he was repatriated on 23 January 1997 for further treatment in the UK). His medical treatment was by this time being paid for by BUPA on the Defendant’s policy rather than on the Safety Insurance policy. His girlfriend remained in a critical condition; the company was paying the medical bills and would claim that back in due course on the car insurance. It described the repatriation and burial or cremation of the dead. Dealing with the insurers’ views, it continued: “The police report is neutral on the issue of the accident it just says that it happened. The insurance require verification of Paul Andres International license before settling the claim despite searching it was latter found in his travel bag under the lining and it will be returned to site by M. Mathews on 4th Jan. Paul had been authorised to drive a company vehicle 2 days earlier as he had been requested to arrange the Christmas dinner and required to travel to Khorat to purchase supplies. There is no doubt that the accident was caused by drink driving and a notice will be sent to all employees regarding this issue, however short of curtailing individual freedom completely this will always be difficult to enforce.” [text as per original document][52]The fax to the brokers said that that report had not been circulated outside the company and its advisers. There had been a preliminary meeting with the insurers on 8th January 1997. Mr McIntyre’s evidence was that he had just shaken hands with the insurer’s representative and left Mr Harn to deal with him in Thai. The insurer had agreed to pay the full value of the car, but only 150000 Baht (£3750 at the then exchange rate) for Ian Langford and also for his girlfriend, and 110000 Bt (£2750) for Paul. This latter sum was thought to be acceptable as it would cover his funeral expenses. The figure for Ian Langford would cover the company’s initial costs; although not married, his next of kin might seek more; BUPA would cover his repatriation. His girlfriend had four dependant children and might expect more compensation. The insurer had not yet commented on the hospital treatment cases but he expected some of the expenses of the Claimant and his girlfriend to be settled and thought that some additional compensation might be appropriate. Advice was sought.[53]By return, Jardines said that it did not appear that Sofresid was liable because the five had all decided to drive themselves when company transport was available; Sofresid should not get involved in negotiations. There might be some employment liability. The amounts payable to the Claimant and to Ian Langford as employees would not exceed the amount in the medical and personal accident sections of the motor insurance policy. This latter was 100000 Bt per person, and was payable regardless of liability. If the driver was liable for causing the accident, there appeared to be cover for any one passenger up to a maximum of 1m Bt, up to a ceiling of 5m Bt per accident. The two girls and Paul would be covered under this section provided that they were not employees. Jardines thought that those sums should satisfy the next of kin of the two girlfriends but did not know about Paul’s position. The absence of liability on the Defendant’s part should affect that as well.[54]The police took a record of questions and answers from the Claimant while he was in hospital in Bangkok on 17th January 1997. Mr Harn was present and translated for him, although it appears from the record that someone else was also there to translate. According to this signed record, the Claimant remembered setting off for Ban Kamping in a company car with the other four: Paul was driving, he was in the back with Boom; Ian Langford was in the front passenger seat but he could not remember whether Ian’s girlfriend was in the front or back. He described himself as tired but not drunk. However, according to Mr Harn’s statement, the Claimant had told the police that he had not remembered the accident, nor who was driving - nor why they did not wait for the company driver to take them home. That latter aspect did not feature in the police record at all. Mr Harn added that the Claimant had not wanted to sign the record as it was in Thai but Mr Harn said that he had advised him to do so as the police already had his passport following the previous accident and might not return it if he did not sign.[55]The Claimant’s oral evidence of this was contradictory: at first he said that the questions and answers were an accurate record, but he then said that he could not remember the accident at that stage, or anything before the accident such as who was driving or the vehicle they were in. He had had to be persuaded by photographs that the accident had been in the 2L. He agreed with what Mr Harn said about what he had remembered, except in relation to not waiting for the company driver. The basis for that disagreement was unclear. What Mr Harn said about the passport was wrong because he had already got it back and had made a trip to England in November 2006, as indeed he had. That does not mean that Mr Harn did not say that he should sign on that basis. It would have been perfectly understandable for the Claimant to refuse to sign initially because the record was at that stage only in Thai.[56]Mr McIntyre next wrote to Jardines on 4th March 1997 to say that the settlements with the victims were effectively agreed. Boom however needed continuing care as she was semi-conscious, but the insurers were refusing to pay for the extra care she needed. He concluded by saying that the company could not continue to stand by and “see inadequate provision being made to a party covered by our insurance who is not capable of raising the case on her own behalf and to who we have a responsibility of friendship.” Shortly afterwards, the insurers agreed to pay her hospital bills.[57]There was correspondence between the Claimant and Mr McIntyre, who had visited him in England in March 1997 at his home to return personal belongings. The Claimant’s tone was on occasion hostile. The fax from Mr McIntyre of 20th March 1997 nevertheless still envisaged that there might be an insurance claim under the Sofresid policy, it appeared for further medical expenses. On 23rd April, he reminded the Claimant to submit a damages claim to the insurers which had indicated that they would accept a claim for permanent injury. In May a short report from his GP was sent which left open the question of permanent injury and ability to work, but Mr McIntyre told him in June that rather more was required, and set it out for him. He added that the Claimant could either wait until treatment had finished before making a claim or make a claim based on what he now saw as the likely outcome of his treatment. The insurers would only offer the minimum of 150000 Bt, unless greater loss was proven, and they were getting off lightly because of the amount of medical expenses which they would have paid which were in fact being covered by BUPA.[58]Mr Harn said in his informal statement that he had complained to government officials about the slowness of the insurer in September 1997 in dealing with the various claims. The sums previously envisaged for Paul and for Mr Langford’s girlfriend had been paid, but nothing had been paid to Mr Langford’s estate or to Boom, and the Claimant had still not sent the latest medical report to establish the extent of his disability. Later, said Mr Harn, the Claimant stopped sending the information necessary for any claim by him to be processed before the deadline and so he received nothing, whereas he might otherwise have received something. However, the purpose of the complaint was to speed up payment for the car repair and payment to Ian Langford’s estate.[59]An internal company memo of December 1997 said that a settlement for Ian Langford had been received in the sum of 200000 Bt. Although the Claimant intended to make a claim, the supporting documentation had not been received from him. The maximum under the policy was 1m Bt and so he should easily be able to show that his case was worth more than that and obtain 1m Bt (£25000), although half that was the amount for partial disability.[60]Mr McIntyre explained his position over the claims in this way. He left Mr Harn to conduct the discussions with the insurer because he did not speak much Thai and the insurer’s representative did not speak much English. Their aim had been to get the best deal they could under the insurance policy for the dead and injured. By 10th January 1997, Jardines were already saying that they had chosen to drive themselves and not to use Thai drivers. The Defendant’s ethos was to follow the Thai paternalist approach to employees and company contacts: the company was expected to look after them. He felt obligations of friendship to Boom, and that he simply had to get something for her and so they spent time and money looking after her. After a delay, and a complaint, Safety Insurance agreed to pay for her medical expenses.[61]So far as the Claimant was concerned, there had been a conflict over his hospital bills, but in the end BUPA had paid for all but the first two weeks or so, including his repatriation. Some expenses had been paid out of his salary as well. He agreed that in April 1997 he had reminded the Claimant to submit his claim, and had discussed with him in June 1997 whether he should submit a claim then or wait until his prognosis had become clearer.[62]He had expressed his concern to Mr Harn about the absence of his consent to the taking of the car, Paul driving it at night and the possible influence of alcohol. Most had had plenty to drink, and would have been above the limit for driving, including Paul. After the accident they had been expecting claims; he had already contacted the Defendant’s managing director in London on the night of the accident. The company might be liable because people claimed for all sorts of things but, in fact, only the Claimant had made a claim against the company. By 8th January 1997 conclusions had been reached on the expenses of the deceased but not for those in hospital. All that the insurers had been interested in was whether Paul had had a licence to drive; at first Mr McIntyre said that that licence had been found in England, but later said that he had found it among Paul’s belongings in the room on site in which he had been expected to spend the night.[63]At no point in 1997 had the Defendant said that Paul had no authority to drive; the insurer had not asked, and Mr McIntyre said that he was relieved that they had not done so. At no time had he given consent, but he was not sure what arrangement the Claimant might have made and it was possible he had asked Paul to drive and so, Mr McIntyre thought, had given the Defendant’s consent. The insurer was basically saying that because Paul had been allowed to drive by the company, only his driving licence was required. Although he had told Jardines what the position was, it was his good fortune that he had not been required to explain that to the insurer. It was treating consent from him for Paul to drive the car as an internal company matter which did not affect its liability to pay out under the policy. When in January 1997, Mr McIntyre had said that “for reasons unknown” the group had taken the car, he was reflecting the fact that he was not sure what the position was, although he would not have written that had he thought that he had permitted the Claimant to take the car. He knew that the Claimant had no permission to take the car but he did not know what the Claimant might have told Paul. He had been clear in his evidence at the first trial that the driving had not been authorised unless he had given permission for the Toyota 2L to be taken. He was not sure at the time what the position would have been vis a vis the Defendant if the Claimant had authorised Paul to take and drive the car, as he thought must have happened. The presence of the Claimant in the car could have conveyed to Paul and the others that the Defendant had authorised the trip. But for all that, the insurer was only interested in whether Paul had had a licence to drive. The distinction between the claimants under the policy only became clear when this action began.[64]Much of the force in the Claimant’s points about the effect of what was done depends on the way in which liability under the insurance policy for the various claims might arise. So I now turn to the terms of the policy. There was compulsory insurance for the vehicle which paid out a limited sum for anyone injured through its use, not exceeding 50000 Bt with an initial 10000 Bt, as the Thai law experts agreed in their Joint Statement. There may be room for some debate about whether the compulsory sum paid without liability was actually 50000 Bt rather than 10000Bt, and about what constituted liability for these purposes and whether 50000 Bt was merely to be paid without investigation into liability, including consent to drive, in practice. I shall not deal with it. The sums sought and paid here exceed either amount: Paul 110000 Bt, Ian Langford 200000 Bt, his girlfriend 150000 Bt, Boom 150000 Bt for medical expenses, and although no sum was ever specified for the 2-3 weeks medical expenses which this insurer paid out for the Claimant, I accept the submission of Mr Speaight QC on his behalf, that that must have exceeded 50000 Bt. Mr de Navarro QC for the Defendant did not dissent from that point.[65]Those sums must have been paid under Section 2 Part 2 of the Sofresid policy, voluntary insurance in excess of the compulsory insurance. Clause 2.2 governs liability to passengers. The maximum sums payable are in a schedule. Liability arises only where the Insured is liable by law for the bodily injury or death of any third party in the car caused by accident arising out of the use of the car. Clause 2.6 provides:
“The Company shall treat any person driving the Motor Vehicle with the consent of the Insured as if such a person were an insured….”
The provisos are immaterial. No other provisions were relevant. So there were two requirements. The consent of the named insured to the driving was necessary to meet that requirement of the policy. And it was agreed on both sides that if the Defendant were vicariously liable for the acts of the driver, Paul, the insurance company would be liable under the policy, and not otherwise. The requirement for liability brings in the question of vicarious liability under English and Thai law. It is not necessary therefore to go further into the interpretation of the policy or of the experts’ written joint views on clause 2.2 of Section 2 Part 2. I found these difficult to follow on this issue, and they did not appear to identify any clear or consistent basis upon which the insurance company could be liable to passengers, or upon which it was liable in respect of the driver’s funeral expenses under the voluntary extra insurance.[66]But before turning to that, I shall deal with what the Thai law experts said(1) about the supporting information which the Thais would want, and in particular whether it would normally be sufficient to ascertain that the vehicle was covered by the policy and that the driver had a valid licence without investigating whether or not the driver had consent from the insured to drive,(2) whether a Thai insurer would pay out when there was no liability so as to retain client goodwill and(3) about Thai practice in relation to the making of a claim, and in particular whether a formal claim form was necessary.[67]Both experts agreed in writing that consent was required under clause 2.6 on its terms but Mr Pramual, instructed for the Defendants, said that insurers would pay out on a discretionary basis for personal injury or death without inquiring whether the driver was permitted to drive, so long as he was licensed to do so. Mr Bunnag, instructed for the Claimant accepted that, with some reservations and qualifications. This was resolved in their helpfully clearer oral evidence. They also agreed that such consent was not necessary for a claim in respect of the car or other property, and the claim made for the cost of the repair of the car is of no significance to any of the arguments here.[68]Mr Bunnag said that the insurer would not pay out under the voluntary part of the policy if it knew or found out that the driver was driving without the Insured’s consent. However, if the named Insured made a claim, and nothing else was said about consent, the insurer would assume that the driver had his consent and would not enquire further, beyond making sure that the driver was licensed and that the policy applied to the car. Consent was implied from the fact of the claim by the named insured where he was not the driver; and there was no need to make a positive assertion about consent. Payment would be made unless the insurer knew that there was no consent. Payment would be made without inquiries if there did not appear to be an issue which merited inquiries, so as to keep good relations with the client. That is what he said he meant by agreeing that there was a practice that payment could be made on a discretionary basis even if there were no liability.[69]Mr Pramual agreed: the claim would focus on whether the driver was licensed and not on consent because it would be assumed from the fact that the insured was making the claim, that the driver had had his consent to drive. Mr Bunnag was convinced that an insurance company would not pay out where it was not liable to do so, and indeed said that would be against the law. Mr Pramual agreed: if the facts were clear and there was no liability, the insurer would not pay out. Voluntary excess policies would be investigated more fully than compulsory insurance claims which paid out medical, funeral and a small sum for losses.[70]Mr Pramual did not know the practice of Safety Insurance over claim forms, but he was not a specialist insurance lawyer. The way the claim had been dealt with as described by Mr Harn seemed normal to him. Mr Bunnag agreed: there would be a claim form if the claim were investigated by a loss adjuster, but not necessarily where the claim was handled directly by the insurer.[71]The experts were agreed about vicarious liability under Thai law, which I deal with at this stage only for its possible relevance to the insurance claims as evidence that Mr McIntyre had in fact consented to the Claimant taking the Toyota 2L. There were two requirements for vicarious liability as an agent in the Thai Civil Code. The principal had to permit the car to be driven, and the car had to be driven for the purposes of the principal. If the Defendant had permitted the car to be used to take the group home that night, as the Claimant said, both aspects would have been satisfied. If it had not permitted the Claimant to take the car, neither would have been satisfied. If the driver or another passenger had not known that Mr McIntyre’s permission was required or that it had not been obtained, the principal would be vicariously liable, just as if the car had hit an innocent pedestrian. Innocent third parties would not be affected by breaches of internal company procedure. If, on the other hand, an injured party in the car had known that the required consent had not been obtained, and had been responsible for the car being taken and driven, there would be no vicarious liability. If someone other than Mr McIntyre could authorise the driving of the car that too would suffice for the Defendant’s vicarious liability for Paul’s driving.[72]Although at one time it appeared that there could be circumstances in which there might be an uninsured vicarious liability, both Counsel were agreed that there would be liability under the voluntary part of the insurance policy if the Defendant were vicariously liable, but not otherwise.

The recovery of the Claimant’s memory

[73]The reliability of the Claimant himself was the subject of specific evidence. This relates to the circumstances in which the Claimant says that he recovered his memory, so as to be able to give the specific evidence about what happened that night which is what I have set out already.[74]The Claimant had said in his first statement dated 18th February 1997, for the inquest into the death of Ian Langford, that he could recall nothing about what happened between the party breaking up and his waking up in hospital, how he came to leave the party or to be in any vehicle, or of how the accident occurred.[75]The Claimant had engaged in some email and other exchanges with former colleagues between his return home in January 1997 and the making of that statement. The Claimant has not been able to produce all of the exchanges. I do not attribute that to any motive of concealment, given the changes in his computer files over time. He had seen Mr McIntyre when he had visited the Claimant at home in March 1997. In June 1997, after a telephone call from Mr Andrew, he wrote to the Andrews saying that he had not slept at night, thinking about the badly injured Boom, trying to remember what had happened, and whether he could have done something to prevent the accident. The telephone call from them had helped him to sleep at night. In September 1997, he sent a rambling early morning email to the Andrews and to Mr Jewkes; it described the continuing and painful operations he was having, although the reconstructive surgery on his left eye socket had gone very well, and his skull was recovering. He said again that he had no memory of Christmas Eve after about 23.30, so he had no idea of what had happened. He went over the accident in which the little girl had been killed, and expressed his hatred for Mr McIntyre for his lack of support after that accident. The Claimant’s wife had also found out about his relationship with Boom and that had nearly destroyed his marriage. The Claimant blamed Mr McIntyre for this because he had sent faxes containing information about how Boom was doing to the Claimant’s home, in terms which indicated their relationship.[76]The Claimant had seen a psychiatrist in 1997-8 on about 6 occasions, on the proviso that he kept no notes. Dr Toms had told him that memory could be triggered and return. The Claimant had refused hypnosis because of the dangers of suggestion. The return of nasty memories and of death was problematic. Nonetheless, the Claimant accepted that he had a very clear memory of the accident in which he had killed the little girl; but he suffered no head injures on that occasion. In November 1998, his consultant orthopaedic surgeon had noted that he had no recollection of the 2 hours or so before the accident.[77]The Claimant said in evidence that he had not realised until he received the Defence, signed as true by Mr McIntyre and dated 24th May 2000, that it was being alleged by Mr McIntyre that he had taken the car without consent. It also said that Paul had been banned from driving company cars, without saying what Mr McIntyre later put in his March 2001 Witness Statement, which was that the ban had been relaxed by Christmas 1996. It also took issue with whether Paul was the driver. This all took the Claimant by surprise because he had thought that the only issue would be whether he had been using the car on company business.[78]The Claimant then tried to get in touch with his former colleagues to find out what the position was, and discovered that he was now regarded by the Andrews as having been responsible for their son’s death, because they thought that the Claimant had been the driver that night. He tried to get through to Patrick Catling in July so as to contact Mr Andrew and Mr Jewkes, but was eventually told that neither wished to have contact with him.[79]He sent an email dated 19 September 2000, which became known as the “Dear Steve” email, to a former colleague. The email to which it plainly replied has not been produced. Mr de Navarro suggested to the Claimant that it had been concocted at least in part at a later date. I reject that for reasons I come to later. However, the email does contain a paragraph in which, in strikingly similar language to that used in his second Witness Statement, the Claimant describes the incident in which Paul told him that Mr McIntyre had reduced him to tears, had been persuaded not to tell his father lest he hit Mr McIntyre, and had just washed his face and gone back inside. There is no reference to Mr McIntyre being asked to apologise or doing so, or as to the part which that was later said to play in Mr McIntyre’s giving consent to the Claimant to have Paul drive the four of them home in the Toyota 2L.[80]The Claimant had asked Mr McIntyre who had been driving, when he visited him in hospital in the afternoon of Christmas Day, because he was asking what had happened and was worried that he might go to gaol as had happened after his first crash.[81]He asked for help in finding out what the position had been that night. In an email of 21st September 2000, he said that he wanted Mr Jewkes’ help to say that there had been no ban on Paul driving immediately before the accident.[82]In fact, Mr Jewkes did get in contact with the Claimant by email after being contacted direct by the Claimant. It was clear that the Claimant thought that Mr McIntyre was lying about the giving of consent. The Claimant explained why he wanted Mr Jewkes’ statement that Paul was allowed to drive company cars immediately before the accident. Proving that would be the key to proving that the company was lying over other matters. He showed himself in emails to be fully aware of the difficulties in his case if there was no evidence to support what he was saying. He agreed in cross-examination that he would benefit considerably financially were he successful in the litigation. Mr Jewkes replied in October 2000, in the terms in which he gave evidence, to the effect that Paul had been banned from driving any company car after the accident, but that after a number of weeks the ban was relaxed to enable Paul to run errands in office hours. But he was still banned from driving company cars at night, and he would certainly not have been allowed to drive the Toyota 2L.[83]Mr Jewkes explained in evidence that he had contacted the Claimant without using company email lest the Claimant bombard his email with requests for help; the Claimant’s emails and endeavours to get in contact with his former colleagues created stress because of the way in which Ian Andrew now thought of him and it kept bringing the accident to mind.[84]In his first Witness Statement dated 1st February 2001, for the first trial, the Claimant said that his memory of the final couple of hours at the party were very vague because of the effects of the accident, in which he had sustained multiple leg and thigh injuries, and a severe head injury which had affected his short term memory of the incident. He had also sustained severe mental trauma and had been unable to return to work. This last couple of hours covered the period when people had started to leave the party. He could not remember any conversation with Mr McIntyre about taking the car. He remembered that he had arranged for the 4x4 to be driven by Paul to take not just the other four who were later killed or injured in the Toyota 2L but also Paul’s parents back to Ban Kamping. Paul was to return with it to stay overnight on site. It was only 3-4 weeks later, when interviewed by the police that he realised that the crash had occurred in the 2L.[85]His first statement continued: “I have since my accident tried to work out first of all why it was that Paul Andrew was driving the Toyota 6131 rather than the Isuzu Adventurer” (the 4x4). He said that he understood that the reason for this was that the Andrews had taken the 4x4 back from the party; two cars had been used to take Thai staff to their towns and would not have returned by the time he came to leave. That left only two vehicles on site: the hired 1.6L, which Paul could not drive as he was not on the insurance policy for hire cars, and the 2L which Paul was insured to drive. He emphasised that it would be a serious disciplinary matter for anyone to drive the 2L without Mr McIntyre’s express consent, and it required special circumstances to get that consent. It was therefore inconceivable that the car was taken without Mr McIntyre’s express consent; the car would have had to be loaded directly outside the clubhouse where it could be seen. For him to have done what he did without consent would have been “tantamount to dismissal” for him and Ian Langford.[86]At the first trial, in April 2001, the case was opened on the basis that the issue was (and it still is) whether the Claimant had obtained the consent of Mr McIntyre to his taking the car that night for Paul to drive. The Skeleton Argument said that the Claimant was amnesic for events occurring about 2 hours before the accident because of his injuries.[87]The transcript of his evidence has been lost; what he said is only available in summary from the judgment. He accepted that he said what the Recorder noted:
“he had been trying hardto recollect what had happened and since February 2001 that is, in the last ten weeks or so, he thinks he has a memory that they went outside and saw that the 4 x 4 Isuzu had gone but that Richard McIntyre’s car was there. He then says that he asked Richard for the keys and pointed out that Paul would bring the car back and meet Richard in the clubhouse by the time it was locked up. Because Paul was insured to drive all vehicles, said Mr. Smith, there was no problem with his driving Mr. McIntyre’s car. In later questioning, Mr. Smith has said that when he referred to asking Richard for the keys, he does not necessarily recollect obtaining the keys but it was simply a way of saying that he asked for permission to use the vehicle.”
[88]I am not prepared to treat that as positive evidence of what was not said however. The Claimant complained that the Recorder had prevented him saying what he wanted to say about his returning memory. In particular, he said that he had wanted to say that he remembered the conversation with Paul about Mr McIntyre upsetting him. He was cross-examined closely about that. He said that the significance of the way in which he used Mr McIntyre’s behaviour towards Paul to obtain his permission to take the Toyota 2L was not the real point to him back in 2000; what he really wanted was evidence that Paul was no longer completely banned from driving company cars. The conversation with Paul when he was upset was neither in the first Witness Statement nor in evidence at the trial, even though it was in the 19th September 2000 email. The way in which that conversation had been part of obtaining consent to take the car had been part of his lost memory in 2000. He then said that the relevance of the upsetting of Paul had not come into anything; he had kept it quiet because of the repercussions which it could have had. Finally, he said that he could not say if he had remembered at the first trial the way he had used the incident with Paul to obtain Mr McIntyre’s consent. He then confirmed in re-examination that the Recorder had stopped him giving evidence about the conversation with Paul but that he could not remember whether he had at that stage made the connection between that conversation and Mr McIntyre’s consent for him to take the car and for Paul to drive it.[89]There was an email of 29th November 2003 to Mr Jewkes in which he had repeated the conversation with Paul and had referred to the fact of an apology; but it had not gone on to make the connection between the apology and permission for Paul to drive the Toyota 2L that night. It did not appear in evidence until his Witness Statement for this trial, because, he said, no one had asked him about it.[90]In that statement, dated 5th March 2007, the Claimant described the process whereby his recall of those hours had come back. At trial he had been able to recall in greater detail what had happened that evening. After preparing his first statement and meeting his legal advisers, his memory had been jogged and the detail began to return. In oral evidence, he elaborated considerably. He had been unable to talk about all that had happened at home as his wife would not talk about it because of Boom; so things had remained secret in his head. The first time he had been asked to put things down in writing was in his first Witness Statement. He had had a three hour meeting with his legal team 2-3 weeks before the first trial, in which they had grilled him over what had happened. This had bought his memories back but they were in a jumble; memories “were churning over” in his mind. Seeing Mr McIntyre in Court in Chesterfield had however brought things back, he remembered seeing him at the site, and the chronology came back clearly to him; the pieces of the jigsaw fell into place. He had told the Recorder that his memories were coming back but that the chronology was wrong; the Recorder had said that he had made a statement and what he was trying now to say was not consistent with that, and that memory could not come back. He denied in cross-examination that he was lying and that he had made this up because he realised how weak his case was as trial approached, and he needed the money from success in the case. He had not thought that the absence of memory for two hours before the accident would make his case difficult at the first trial.[91]The question of whether and how the Claimant had recovered his memory led to medical evidence from both sides. The physical injuries which he suffered are the starting point. It is not necessary to go into the details of most of the physical injuries because they are only relevant to the extent that they show that the injuries were severe, and required many operations. In many ways, the Claimant had made a good but not full recovery. He suffered a fracture of the left cheekbone which caused his eye socket to move out of alignment. It was agreed that he had suffered a fractured skull. He described himself as mentally traumatised in November 1998.[92]Dr Jones, the consultant psychiatrist called on behalf of the Claimant, and Dr Foster, the consultant neurologist called on behalf of the Defendant, agreed that the Claimant had suffered a moderate to severe head and brain injury, which had probably left him still with some residual cognitive impairment. The injury was of a severity which likely to have caused a period of retrograde amnesia, such as the Claimant said he suffered in respect of the period of two hours or so before the accident. Alcohol may also have played a part. They agreed that the period of recovery from organic brain injury of the sort suffered by the Claimant would normally be about 2-3 years after injury. Dr Foster thought any further recovery “extremely unlikely” after that period; Dr Jones thought that that would be “very unusual but not impossible” in a case as complex as this, as he saw it.[93]The differences between them were quite narrow. It was possible, thought Dr Jones, that there were additional complicating psychological factors which affected memory loss or recall in addition to the principal cause, which he agreed was retrograde amnesia. These were the Claimant’s experience of the earlier accident in which the little girl died, the injuries to Boom, and the impact which that relationship had had on his marriage. He diagnosed the Claimant as suffering from PTSD or a similar post traumatic adjustment disorder, with which Dr Foster did not disagree. Indeed, the Claimant had had PTS counselling in 1997-8. Dr Jones was of the opinion that although the physical recovery from retrograde amnesia would be limited in time in the way in which Dr Foster described, psychological factors could have supervened or overlain the recovery so that memories remained suppressed for psychological reasons when they would otherwise have been recovered. This was the possible explanation, in a complex case, for what would otherwise be very unusual. There was no comparable example in medical literature however. The factors which he had noted as suppressing the recovery of memory were so overwhelming that it was not necessary for him to consider whether there had been any blocking out of memory because, as was suggested to him, the Claimant had taken the car without consent, and was responsible for the accident in many ways. The period of memory affected by PTSD could be quite short or long, in his extensive experience. Neither doctor was talking of the false recovered memory syndrome of the sort encountered in child abuse cases.[94]Dr Jones’ view was that what the Claimant described was “valid”, that is to say accurate, rather than merely what he now believed. There were touches of detail, such as remembering where certain incidents occurred, the arguments with Mr McIntyre on the couch and at the bar, and being in the back seat of the car thinking of whether he would have to find somewhere else to stay, which supported his conclusion. If the Claimant had been confabulating, searching around for detail where there was none in his memory, he would have expected there to have been no answer or answer only after delay.[95]Dr Foster commented that the sudden recovery of memory at trial could not be explained by organic recovery. Recovery of organic memory loss was gradual. It was very unusual, except if the memory loss had an organic cause, for there to be such consistent reporting of a two hour period of memory loss. If memory loss was for psychological reasons, there would not be so clearly defined and short a period of memory loss, and the manner of its return in the trial improbable. Organic brain injury led to the quite sharp cut-off in memory loss.[96]Dr Foster did not accept the explanation of a psychological suppression and delayed recovery of memory because, although in principle such a mechanism could occur, it was very unlikely here. The Claimant had experienced a wholesale change in his life, he must have though a great deal about what had happened, as his first Witness Statement said. He had communicated his feelings in emails, so the suppression was not as a result of not thinking about the issues. He had had stress counselling in 1997-8 which was the usual way in which memory loss caused by PTSD could recover but it had not done so. He had also seen Mr McIntyre, after the accident at his home in 1997 without effect, but seeing him 4 years later was to trigger the falling into place of the jumble in his mind. He had a strong motivation to seek closure. This could lead to misattribution or incorrect recall. Going over and over events could lead an individual to come to believe that he had genuine recall of events of which he had no true recollection. Litigation was a strong motivating factor in the development of a false memory. It was extremely unlikely that the Claimant’s recall was accurate. This was not to trespass on the court’s functions; he had to assess the accuracy of what he was told as a neurologist which included basic psychological assessment.[97]Dr Jones saw this psychological inhibition to a recall, which physical factors no longer prevented, as possible in the light of the ways in which the Claimant had described how his memory had returned. Dr Foster by contrast saw in these descriptions confirmation that, if what the Claimant was saying about his recovered memory was not actively dishonest, it was clearly the result of elaborated false or unreliable recollections favourable to his case.[98]Dr Jones, who examined him in January 2007, described a process of gradual recall prompted by the discussions which the Claimant had had with his legal advisers, on what the Claimant said. Prompting by lawyers, a close focus on the case, and seeing Mr McIntyre in Court could all assist the process of memory recovery. Dr Foster thought that there were significant differences in the histories given by the Claimant of how he recovered his memory, which showed it to be false for whatever reason. He did not examine the Claimant until 15th April 2008. He noted that he had said that while the questioning by his legal team had prompted his memory, “he had started to remember everything because I saw Richard McIntyre. It was like a blinding revelation”. He knew what had happened, but until then he had had difficulty fitting the chronology together but it had gradually come right in his head, and ever since he had been able to remember this two hour period. Dr Foster thought it significant that Dr Jones had not elicited such an expression of a “blinding revelation”.[99]Dr Jones saw no overall contradiction in the ways in which the history of the recovery of memory had been recounted, nor in the absence of earlier mention of a “blinding revelation”. Any differences were understandable in the light of the Claimant’s remaining cognitive impairment. It had all seemed to him to become clear after hearing the Claimant’s evidence: there had been a gradual recovery of memory, and seeing Mr McIntyre triggered something in a particular way, putting the pieces in order.

The “Dear Steve” email and the Claimant’s honesty

[100]The only witness who was accused of lying in his evidence was the Claimant. True it is that he had a tendency to ramble on some answers and to answer off the point at times; he showed a clear sense of bitterness at Mr McIntyre and a sense generally of having received a raw deal from his former colleagues; he was at times quite angry in his answers. But I formed the firm impression that he was giving his evidence completely honestly, however reliable or unreliable it might turn out to be.[101]Three aspects call for comment. The most significant is the email of 19th September 2000 which refers to the Claimant’s conversation with Paul at the clubhouse after Paul had been upset by what Mr McIntyre was alleged to have said to him. The Claimant was cross-examined on the basis that this was a later fabrication. Such allegations were also tentatively raised but abandoned fairly quickly by Mr de Navarro in respect of other emails. Expert evidence was called by the Claimant to bolster his indignant denials and by the Defendant to support the allegation. I do not need to recount this evidence in any detail.[102]The Claimant’s IT expert, Mr Salam, found no evidence of any later fabrication. The factors which had given rise to suspicion in the computer memory of the email document, the metadata to be found in its “properties”, did not indicate fabrication, but suggested the contrary. These factors were the number of revisions and the fact that the revisions were by “unknowns”. The Word 9 software on which the document had been created was released in January 1999 and superseded in May 2001 by Word 10; the machine had been running a version of Internet Explorer predating 2003. The Defendant’s IT expert, Mr Holden, only said, as Mr Salam agreed, that it would be impossible to be definite about the issue in the absence of the hard drive of the computer on which the document had been created. There was nothing sinister in the header and footers. It would not have been difficult to change the date on the computer by changing the clock or through readily available software, as was agreed. There seemed to me a good deal of uncertainty about what in 2000 would have created a new revision number or editing time, but there had been no need then for log-in by a particular user and so no name would have been entered as the reviser. So the position was that Mr Salam thought that there were positive indications that the document had not been altered, but could not rule it out; Mr Holden thought that there were no positive signs because they could have been manufactured, and there was no evidence either way.[103]On that evidence taken by itself it is impossible to conclude, and indeed it provides no basis for the assertion, that the Claimant had altered the document so as to affect this trial. There was no extrinsic evidence, nor did the manner in which he gave his evidence lead me to suppose, that he might have tampered with documents. The document had been sent to his solicitor in January 2007 before the Claimant made his Witness Statement. I found it surprising that the Claimant’s statement resembled that email so closely in respect of the conversation with Paul by the pool, given that the Claimant said that he had not had it in front of him when he made the statement. But that is no basis for supposing that it was a late fabrication, which was the essence of the charge by the Defendant.[104]There was next a clear implication in Mr Jewkes’ second statement that the Claimant had been asking him to say things which Mr Jewkes did not think were true. I accept that Mr Jewkes genuinely thought at one time that the Claimant was trying to get him to say things which Mr Jewkes thought were untrue about the routine use of the 2L by others than Mr McIntyre, including Paul, but there was nothing in the material which was produced to the Court by anyone to suggest that that impression was justified. Rather the Claimant had a recollection which he wanted Mr Jewkes to support because the Claimant thought it correct, and Mr Jewkes could have been in a position to say so truthfully. Mr Jewkes had clearly misunderstood or misrecollected what the Claimant was seeking, which related to Paul’s status as a driver on which he actually largely agreed with the Claimant.[105]The Claimant would have been in a very weak position from which to start drawing the Defendant’s employees in to perjury on his behalf. Mr Jewkes gained that impression at a distance from the Claimant, and in places where Mr Jewkes continued to work with Mr Andrew so that the understanding he acquired of the Claimant’s position may have become distorted. In effect, he accepted that his impression was mistaken. On the issue on which Mr Jewkes’ help had been sought, the extent of the ban on Paul driving company cars, the disagreement in the end between the witnesses put Mr Andrew largely on his own.[106]The Claimant had been challenged strongly in evidence about whether he had had his passport back after the first accident in the light of what Mr Harn had said about how the Claimant came to sign the record of questions and answers to the police in January 1997, but he demonstrated by production of the passport that he had returned to England in November 1996 and so must already have had it back.[107]I also accept that the Claimant is not lying, however unreliable he may be, in what he says about how his memory returned and what he now recalls. There is another more obvious explanation of how he remembers what he does, if it is inaccurate, than that he is lying. It would require quite remarkable nerve and coolness of calculation to start and pursue proceedings in the way in which this Claimant has done over so long a period in pursuit of a lie. The evidence of Dr Jones also provides some explanation other than that the Claimant has lied.

Who was the driver?

[108]The first factual issue for me to resolve is whether the Claimant or Paul was the driver. As I have said, I am quite satisfied that Paul was driving. I give the greatest weight to the evidence of Mr McIntyre who went to the accident scene shortly after the police had arrived, and after the Claimant and Boom had been removed. He saw Paul in the driver’s seat. That is not in issue. The police radio reports and records all refer to Paul as having been the driver. The nature of the accident, in the absence of any expert analysis to the contrary, supports the view that the survivors would have been in the back and not in the front: the car hit a tree or trees more to the front passenger side judging by the final position of the car in the photograph of it at the scene; it then turned over on to its passenger side, but judging from the photograph again, it had continued moving forward so that the tree peeled back or crushed the roof of the car doing greater damage to the front. Ian Langford’s girlfriend could have been killed in the back or front. Although Paul could have been in the car solely for the purposes of driving it back alone, it is more likely that he was in the car because he was intended to drive both ways because of the Claimant’s dislike of driving at night or even by day after his earlier accident. The Claimant’s recollection of that arrangement is, I accept, accurate. There is no basis for supposing that Paul was being driven home.[109]Mr Andrew said that if Paul had been driving that night back to the family house in Ban Kamping, Paul would have told him or said something as his parents left that night. He would have been told by Paul if Paul’s driving ban had been lifted, and would have known anyway even if Paul had not told him, as he would have found out around the site. I do not accept that. The evidence of Mr McIntyre, the Claimant and of Mr Jewkes was that the ban on Paul driving company cars had been relaxed by Christmas Eve. They cannot all be mistaken about that. Mr McIntyre and the Claimant both said that they had relaxed the ban, although they were not in full agreement as to the extent of the relaxation at night.The Claimant said, and I accept, that he had a need for a driver after his accident, and that he and Paul had made trips to Khorat to pick up provisions for the party. This was also what Mr Jewkes said. Mr McIntyre also agreed there had been at least one such trip.Mr McIntyre and the Claimant were both of the impression that Paul drove his mother on shopping trips, and his father would have been bound to know of that; that seems odd if they thought that Mr Andrew was vehemently opposed to his son driving at all including driving his mother, as Mr Andrew said. It is probable that Mr Andrew has forgotten in the stress and sorrow that he knew that his son was driving again. It is quite likely that Paul did not tell his father that he was driving the car back to their house and then returning in it to the site, because he knew what his father’s reaction would be as this would involve driving at night, on his own and after drinking, and this was not within the relaxation which Mr McIntyre said he had permitted. It is possible that Paul did not tell his father that he was back driving at all because of his father’s anticipated reaction to it and kept it concealed from him, although I think that less likely.[110]Up to around May 1997, Mr Andrew appears to have accepted that Paul had in fact been the driver. Mr Andrew said that he had first come to believe that the Claimant and not Paul was driving because of a remark made to him by Boom at a party in May 1997 given by the company to cheer her up when she was still very ill. She had not known that Paul was dead, asked whether he had gone home and said that the Claimant had been a bad driver. He had spoken to the head of security at the site about this, a Mr Fixit who dealt with relations with the Thai police; this man had said that it was necessary to take care of the living and that the Claimant would have faced a long prison sentence, had he been the driver, because of his earlier accident. Mr Andrew had been told about, but had not seen, a photograph of Paul in the driver’s seat but with the seat belt on the wrong way up: someone had investigated this and said that it was fabricated. His son had no sign of blood loss when he saw his dead body; he had died from neck injury caused by whiplash; the blood in the foot well and on the pedals was more likely, he said, to have come from the Claimant who had badly broken legs. The police had therefore put Paul in to the driver’s seat when they came upon the accident scene. Mr McIntyre had never given him any support in his views. Mr Jewkes also rejected this conspiracy theory.[111]Mr Andrew’s suggestion does not persuade me at all. First, on the basis of Mr McIntyre’s evidence, the police must have put one of the dead bodies into the driving seat before Mr McIntyre arrived, probably within less than half an hour of the accident. This macabre suggestion is based on their supposed desire to protect the Claimant, and on their general corruptibility, as had been shown in the way in which his earlier accident had been handled. Leaving aside the time it might take and the repugnance which anyone might feel engaging in such a switch, it assumes that the police were aware of who the driver was, and wanted to protect him. There is simply no basis for either supposition.[112]There had been no time for the Defendant, even had it been so minded, which I reject, to ask for the Claimant’s driving to be disguised. Mr McIntyre gave not the slightest indication that his relationship with the Claimant could have caused such a step; quite the reverse according to the Claimant as a result of Mr McIntyre’s stance after his first accident. The police would have had no basis upon which to seek a bribe, having already given uncovenanted assistance to the Claimant or Defendant in that supposed way. The police did not know that anyone had survived the accident or that bodies had been removed, at the stage when they are supposed to have acted in this way. And it would be a considerable coincidence for the police officers who happened on the scene to know the Claimant, who was not in the car, and to know that he was involved, and to have appreciated what they could do for him or the Defendant. More than that, the driver they chose was not Ian Langford, or his Thai girlfriend whom they could have chosen if they had wished to protect expats from the law, but the one person whom the Claimant would say had been driving.[113]The alternative possibility is that the police did that sort of thing as a matter of routine in a road crash, to protect the living. But they did not know that there were any survivors when they are supposed to have put Paul in the driver’s seat.[114]Second, it is quite unrealistic to treat what Boom said as significant: she was recovering from very severe injuries, and I see no basis for treating her reported comment, from which an inference was drawn by Mr Andrew, as evidencing a reliable recollection in any way. Third, the evidence of the blood and the injuries can afford no support to this theory in the absence of proper forensic expertise. Fourth, the allegedly false photograph and the conversation with the head of security has helped stimulate a conspiracy theory which is quite without evidence but feeds upon scraps and uses all other contradictions to support its existence. It may hurt Mr Andrew to know it, which I regret, but the evidence that his son was the driver is plain.[115]It is also not at issue but that the driving was negligent; there is no other explanation for the accident: speed, loss of attention and perhaps, as I shall come to, alcohol.

Did Mr McIntyre give his consent?

[116]I come to the crucial factual issue. I accept the evidence of Mr McIntyre about what happened that evening in relation to the taking of the Toyota 2L: there was no request for it, nor was he in effect peremptorily told by the Claimant to hand over its keys, nor was there any request that he allow Paul to drive it because of an earlier argument between Paul and Mr McIntyre. I accept that the Claimant had arranged for Paul to drive the other four back to Ban Kamping, and had expected to take the 4x4. But I conclude that when the Claimant discovered that the 4x4 was away from the site when he wanted to use it to go to Ban Kamping, and that it had been taken by the slow driver Boonphum to Khorat at Mr McIntyre’s behest and so would be away for some time, he decided simply to take the 2L instead, expecting it to be back on site quite soon unnoticed, and not to tell Mr McIntyre that he was doing so. He was right about how long the 4x4 would be away because it had still not returned when Mr McIntyre went to find his car in the compound after the accident. The Claimant took the car and Paul drove it without the permission which the Claimant knew was necessary because of the Defendant’s internal regulations.[117]My reasons for that conclusion are as follows. Although I accept that any witness’s recollection of events over 11 years ago may in certain respects be faulty or unreliable, and both gave versions which at times differed, Mr McIntyre was considerably more reliable than the Claimant on the central issue. They are the only two who can give direct evidence of what happened between them over the car that night. Mr McIntyre was clear in his recollection, and has been consistent in it from very shortly after the accident. He was not involved in the crash, and had suffered no memory loss. There was no challenge to his truthfulness, though I do not think any witness lied to me. He had had cause to remember what had happened on any view shortly after the events occurred, from no later than the moment he saw the crash; he wrote a report no later than 4th January 1997, which, in saying that the 2L had been taken “for reasons unknown”, was saying that he did not know the reasons, which could not have been the case had he given permission. He was not in my view concealing his knowledge. His evidence that he expected to see the Toyota 2L when he went to find his car to go to the crash site rang true. I accept that he had been drinking quite a lot that night, but I also accept his comment that seeing the crash “sobered him up”. There was no evidence that the amount he had had to drink left him incapable of remembering what had been said. The variable quality of the apparently non contemporaneous documentation did not cast any real doubt on this.[118]I found persuasive the way in which he described how he had made arrangements which would enable expats as well as Thai staff to take advantage of the two drivers to take them home. His evidence on that was also supported by Mr Andrew and Mr Jewkes. I did not find it so easy to accept that the Claimant could be right when saying that expats had been excluded from that arrangement, when there was a general concern about drink driving, limits on what Paul could do, not enough vehicles for every expat to have one, and some were taken home early on Christmas Eve to be kept there for the next day, as Ian Langford surely must have been in a position to have told the Claimant was the position with the Opel.[119]That is not to say that the Claimant did not make the arrangement he did with Paul in the expectation that the 4x4 would be his to use. I accept that he did make such an arrangement, rather than pressuring Paul at the last minute as Mr McIntyre supposed. But the arrangement made by Mr McIntyre does explain why Mr McIntyre would have seen no need to allow his car, let alone driven by Paul, to be used by the Claimant even after Mr McIntyre had allowed Boonphum to take the 4x4 to Khorat.[120]Mr McIntyre can also remember the group departing in a vehicle parked near the clubhouse. This was a recollection of some assistance to the Claimant and Mr Speaight was able to make some play of it. But it reinforces to my mind that Mr McIntyre has a clear recollection of the period immediately before departure, and has a reliable positive memory that no consent was given. He also recollects a conversation, with Mr Langford or the Claimant, or possibly both, about when the 4x4 would be back. Mr McIntyre’s memory is clear that there was no further request.[121]I have also no doubt but that he would have remembered on that evening if he had said anything to Paul as insulting and interfering as the Claimant alleged, and even more so that the Claimant had then used the need for a contrite apology as a basis for getting permission to take the car and to let Paul drive it. This was a crucial aspect of the way in which the Claimant described how Mr McIntyre had been persuaded to grant permission and yet, although in 2000 he said that could remember the conversation with Paul after he had been upset, he failed to make the link between the conversation and permission to take the car with Paul driving until years later. That is not a version of events which can be relied on. I also doubt the Claimant’s recollection because it seemed to me that there were two versions of events which he gave that night after regaining his recall. In the first the emphasis appeared to be on a conversation with Mr McIntyre as an exercise in persuasion, using the problem with Paul as part of the case for taking the Toyota 2L. The second was the far more peremptory one, “gimme the keys”, which he described in re-examination and to me.[122]I accept that Mr Andrew has recounted to me accurately what his son said to him as his parents left the party, and what he said about the demeanour of his son at the party. I accept that he had noticed no sign of a dispute between Mr McIntyre and his son, and also that he had noticed no sign of any wrangling between the Claimant and Paul over the karaoke. He had every reason to remember that evening shortly afterwards and how his son had seemed. The upset was alleged to have occurred before the Andrews left, which is why the Claimant said he was afraid about what Mr Andrew would do to Mr McIntyre. I reject as unfounded, notwithstanding the vigour with which both Mr Andrew and Mr McIntyre gave evidence, the Claimant’s suggestion that there would have been any prospect of a fight being started by Mr Andrew, especially at a party with his wife and son present, and with all the risk to his job which that would cause, because of something said by Mr McIntyre to Paul.[123]I do not think that either argument happened; it would seem a strange party at which Paul, acknowledged to be a pleasant and obliging lad, had managed to get into two arguments with two senior figures at a party at which his parents were present. It would be odd if he had had an argument with a senior figure over the language of the subtitled karaoke songs at a party at which he was a family guest. Besides, I accept the evidence of Mr Jewkes that he saw no sign of difficulties, at least up until the time he left which may have been early.[124]I need to comment here on aspects of the evidence of both Mr Jewkes and Mr Andrew. The false impression which I am satisfied Mr Jewkes had gained of the intentions of the Claimant does not detract from his manifest honesty and reliability: he accepted frankly in evidence and in a straightforward way that he may have been wrong. His attitude to the Claimant also seemed to me to be fair minded, to a degree sympathetic, in his past conduct, communications and in his evidence. I accept the way in which he described the limitations on Paul’s driving and I give some weight to how he thought Mr McIntyre would have reacted to any request that Paul drive the car home. He had no reason to favour Mr McIntyre, and no reason to give anything but his best and honest recollection of the man and his outlook towards the car.[125]I do not accept all of Mr Andrew’s evidence, however. I am satisfied that Paul was the driver; in reaching that conclusion, I have dealt with the evidence which I heard about how Paul came to be driving company cars at all after his first accident. I did not accept what Mr Andrew told me about that. But none of that leaves me in any doubt about his evidence of his son’s behaviour and demeanour that night. This supports my rejection of the Claimant’s account.[126]Mr McIntyre gave three reasons why he would not have given consent, in addition to the fact that he had arranged transport for the expats to use. The first was that the Toyota 2L was the only car on site and had to remain there as the safety vehicle. He accepted that he must have thought that there was another vehicle on site when he realised the group were leaving but did not think that they were taking the Toyota 2L. The Claimant said that Mr McIntyre could not have thought that the 2L was the safety vehicle because it was difficult to get an injured person into an ordinary car.[127]First, I am satisfied that there was only one Toyota 1.6L available for use by anyone that night. I accept the evidence of Mr McIntyre that there was only one, supported as it is by Mr Jewkes. There is only the unreliable evidence of the Claimant to the contrary. In his first Witness Statement he had thought that there had only been the one on site, which demonstrates unreliability also on this topic. As I have said, Mr McIntyre would have been even less likely to have permitted the 2L to have been taken when a 1.6L was available to drive, even if it had been the hire car which Paul could not drive, because a Thai driver was using the other. If Mr McIntyre had found two 1.6Ls on site after the accident, including one the hire for which the Claimant had extended into January, he would have remembered seeing two 1.6L cars in the compound, and cancelling what would have become the unnecessary extended hire. If, alternatively, there had been two 1.6Ls available, but Somchai had seen one of them leaving, which was not returned before the accident so leaving just the one on site for Mr McIntyre to drive to the scene, there is still no evidence as to who could possibly have taken it. The two Thai drivers are accounted for; no expat has been suggested. The only sensible conclusion is that there was only the one 1.6L available for anyone to use that night.[128]Second, there is no evidence of any other vehicle actually remaining on site when the group came to leave which could be better used as a safety vehicle than the 2L. Neither the Claimant nor Mr McIntyre have identified one. The pick ups were off site as was the 4x4. The fact that Mr McIntyre was aware of the group leaving would not have told him that they were taking the 2L rather than one of the two cars driven by the Thais which had returned. He would not have permitted the safety vehicle to have been taken, unsatisfactory though it may have been, and would not have expected the Claimant, who was responsible for safety to have done so. The Claimant said that a pick up was always kept on site as the safety vehicle. But in fact neither was kept on site that night; the Claimant knew and has forgotten, or ought to have known, as safety officer, that the Stewarts had the twin cab and the Andrews the single cab that night.[129]Mr McIntyre also said that he would not have given permission for the car to be taken and driven by Paul because it was night, Paul would have to drive on his own and alcohol had been consumed. The Claimant said that he had been watching Paul all evening who had only had a couple of beers; he would not have wanted to have been driven by anyone unfit to drive. Mr McIntyre’s evidence very late in the day was that Paul had had rather more. I do not think it remotely likely that Mr McIntyre would have given permission for Paul to drive the vehicle which he regarded with some possessiveness on that night after a party. This would have been a considerable further relaxation of the ban in three respects: night driving, driving alone, and driving having consumed even a modest amount of alcohol. The evidence of Mr Andrew and Mr Jewkes supports this.[130]I also think that it very unlikely, in view of the poor relationship between the Claimant and Mr McIntyre at this stage, that Mr McIntyre would have been willing to help the Claimant with some kind of seasonal gesture of goodwill, rather than requiring him to wait for another vehicle to become available. Much more realistic is the picture of an impatient Claimant, annoyed that the 4x4 was not there when he wanted it, annoyed that Mr McIntyre had sent it away on a longish trip, deciding that he would therefore take Mr McIntyre’s car, expecting it to be back on site before long, parked in the compound with the keys hung up in the office as normal. The car was normally left there anyway, and so the fact that it was not outside the clubhouse would not necessarily have alerted Mr McIntyre to the fact that someone had taken it without consent. In one sense the Claimant would have been getting his own back on Mr McIntyre for what he had done. There is no doubt but that the Claimant thought he ought to have had a company car allocated to him. This is what I conclude probably happened.[131]I take the view that this makes better sense than the Claimant’s assertion that he would not have taken the car without that permission. Mr McIntyre, I accept, described the Claimant as a stickler for the rules, and agreed that for him to take the car without permission would have been completely out of character. The Claimant said that for him to have done that would have been a disciplinary issue, particularly after his earlier accident,and that even more so would it have been a problem for Ian Langford who was on a final warning. Mr McIntyre said that there had been disciplinary issues with him, and that Ian Langford would have been taking a big risk with his job. The Claimant had been verbally rebuked upon the first accident, and the concern of the Defendant over the death had raised the question of whether he should be sent home. But it had taken a lot of effort to get him out there. I was not impressed by that point. Mr McIntyre was right when he said that he thought that, if he had seen them loading the 2L, they would have had an excuse ready, such as that they were taking parcels to the clubhouse, because they were not stupid. Once they had left, he would not have expected to look out of the clubhouse and see the 2L, because it was normally in the compound where Mr McIntyre said he thought it had been. So after a short space of time, no one would have been any the wiser – but for the accident.[132]It was the Claimant who was acting out of character in taking the Toyota that night. He would have known that the 2L was the safety car, because there was in fact no other vehicle on site. If he had thought as he says that a hired 1.6L was still on site unused when he came to leave, he would necessarily have realised that that would be even less satisfactory than the 2L as the safety car. Alternatively, although in charge of safety, he did not check at all on the availability of a safety car. If the only other car left was a hired 1.6L which Paul was not insured to drive, but which he could, it is even less likely to see Mr McIntyre being persuaded that Paul should drive them in the 2L, rather than let the Claimant drive the hire car. It would simply confirm the Claimant’s taking of the 2L without consent.[133]The Claimant is muddled in my view about sending Somchai home: Ian Langford reported to him that Mr McIntyre had told Somchai to take staff to Chattarat after the Claimant thought he had sent Somchai and his wife home. I have no doubt that Somchai was driving the 1.6L that night and at about 01.00, returning with it, saw the 2L leaving, driven by Paul. If he had been in the 2L, who was leaving in the 1.6L? How did it get back on site? Why would Mr McIntyre have had no vehicle left on site for a while? Somchai’s statement contained a factual error corrected in translation.[134]I do not accept the Claimant’s contention that Mr McIntyre must have known that they were taking the 2L because he knew that there were no other vehicles on site, and they were being quite open about it, loading it up close to the clubhouse. The evidence is unclear as to exactly where the 2L was parked at the time in relation to the lights of the car park. Mr McIntyre and the Claimant differed over whether it had been left parked in the compound or outside the clubhouse after its previous trip that day. But they would have known that Mr McIntyre was on the couch and not looking out, having had a certain amount to drink towards the end of a party; he was living on site, and so not expecting to drive or be driven. Taking that point by itself could equally suggest that they thought that he would not suspect or notice, and they thought that the car would be back quite quickly; the Claimant said it was a 15 minute run to Ban Kamping. It would have been normal for the 2L to have been in the compound, not visible from the clubhouse at least by night. Mr McIntyre, as they must have known, would have been expecting one or other of the Thai drivers to be returning, available to drive or for leaving the cars to be driven.[135]I do not need to reach a conclusion on whether he would have told Ian Langford and Paul what the position was. If he did not, they would have supposed that all was in order as a result of being told that they could use and drive the car. I accept that this means that Paul would have been trusted not to mention this casually to Mr McIntyre, but the Claimant may well have felt bullish enough to ride out any storm. If his father’s recollection of the night ban had been the same as Mr McIntyre’s, Paul was clearly willing to defy his father in that respect, and might very well have decided to keep completely quiet about it anyway, as the Claimant would have realised.[136]Mr Speaight put weight on the insurance claims as showing that consent had in fact been given by Mr McIntyre to Paul driving that night. The claims made exceed what could be explained by any form of compulsory insurance liability which did not depend on consent to drive. However, the claims made and paid for all occupants other than the Claimant are readily explicable on the basis that it would not have been a defence to claims by them that the Defendant’s internal procedures for obtaining consent had not been complied with. There was no basis upon which the Defendant or insurer could have supposed that the senior company man in the car, the Claimant, who was in charge of transport operation and vehicle allocation, had told the occupants that he was taking the car without authority. The other occupants would be taken instead to have assumed that he had the necessary authority one way or another. Those claims therefore show no inconsistency with the evidence of Mr McIntyre.[137]The claim on behalf of the Claimant was of quite limited duration and amount because BUPA took over with his repatriation and subsequent expenses. However, it is reasonable to assume that the expenses actually paid did exceed any amount of compulsory insurance. And in fact the correspondence later in 1997 suggests that the Defendant was prepared to pursue a claim on the Claimant’s behalf. This does not really help to show that Mr McIntyre had in fact given consent. It is clear to me that the reference in Mr McIntyre’s report to Jardines, prepared before 4th January 1997, to the “reasons still unknown” why the five “decided to drive” home, and to it being assumed at the time that a company driver would be taking them, reflects his bafflement at what they did, rather than some uncertainty as to whether he might have consented to his car being taken. I see no reason to doubt what Mr Harn said in his informal statement of November 2000 that Mr McIntyre had raised concerns about the fact that the vehicle had been taken without his permission shortly after the accident. Mr McIntyre said that he had spoken to Mr Harn about that on Christmas Day as Mr Harn began the process of sorting out the insurance aftermath.[138]The willingness to make and pursue the claim for the Claimant is readily explicable on the same basis as the others: there was some doubt as to the effect of the Claimant giving consent in view of his position; there was , as with the others, some sense of humanity about obtaining assistance, and some element of self-interest in obtaining reimbursement for expenses; and the insurer did not seem interested in finding out what the position was over permission, focusing instead on whether the car was covered by the policy, whether Paul was an authorised driver on the policy and whether he had a valid driving licence. The Defendant had no interest in making life more difficult for itself or any of its employees. I accept what Mr McIntyre said about that, together with what is in the statements of Mr Harn on that point. It is quite impossible to use the claim made for the Claimant, or indeed the others, as evidence that Mr McIntyre had given consent. Mr Jewkes also thought that Mr McIntyre felt some responsibility for the accident because he had failed to send the Claimant home after his first accident.[139]The relationship between the Claimant and Mr McIntyre was verging on the hostile at the time, probably with greater hostility from the Claimant than from Mr McIntyre, but the subsequent behaviour of Mr McIntyre in pursuing the claims, and his attitude towards Boom, scotch any suspicion that Mr McIntyre has come to believe that he refused permission because he wanted to make life difficult for the Claimant. The hostility would instead have led to a refusal of permission. The long pursuit of this claim, when Mr McIntyre saw the Claimant as having a considerable responsibility for what happened,the aftermath of which he had to deal with in many respects, would not have endeared the Claimant to him. As much as anything, a desire to keep the record straight and for the Claimant to accept responsibility for what he did appeared to me to motivate Mr McIntyre’s willingness to return to give evidence despite his statement to the Court of Appeal. I do not diminish the weight I give to his evidence or my assessment of its reliability on that account.[140]I can see no reason why Mr McIntyre would deny that he had given consent if indeed he had. Mr McIntyre was clear, and I accept it, that he would not try and shirk his share of the responsibility if he had permitted Paul to drive. Mr Speaight suggested that Mr McIntyre might have forgotten what had happened and, because he did not want to face up to responsibility for the accident, had persuaded himself of something which was not true. I do not doubt the ability of a witness to do that, and to give evidence in accordance with what he has come to believe as an honest witness.[141]However, that thought process, relied on by Mr Speaight, is much the more readily attributable to the Claimant. It was he who asked Paul to drive him and the others in that car at night after a party, who was in the back with his eyes closed unable to caution against excessive speed, and whose responsibility for the accident is the more direct than Mr McIntyre’s could ever have been. The guilt which the Claimant thought had caused him to be unable to recall what had happened related to Boom being in the car at all, her being gravely injured, his inability to help her, and to the fact that the accident led to his wife finding out about his relationship with Boom.[142]The Claimant’s own evidence is in any event too unreliable to outweigh the evidence of Mr McIntyre. He had brain injury causing retrograde amnesia; the recovery of his memory is not consistent with the normal timescale of recovery from that. Dr Jones’ evidence, that there could have been a psychological overlay which prevented more than a gradual recovery and led to a triggering of the full memory when the Claimant saw Mr McIntyre at court, is not put at more than a possible explanation. But it is not suggested to be probable. It is unsupported by any previous example drawn from studies. I do not regard that as a basis for treating the Claimant’s evidence as reliable.[143]There are features of the pattern of recovery postulated by Dr Jones which increase my doubts about its value as showing the recovered recall or memory to be reliable. I accept most of what Dr Foster said about this. First, if there was a psychological cause, it is surprising that the periods of treatment for PTSD in 1997-8 had not brought it out. Second, this is not a case where recall followed a period in which the individual had been trying to suppress memory, rather the Claimant had been actively thinking about how the accident had come to occur. I do not think that the absence of someone, wife or lawyer, to talk it over with is persuasive; he could think alone, asking himself questions. He wrote rambling emails about it. He clearly felt guilt about the first accident, yet that feeling of guilt had caused no suppression of detail. Third, that which he could recall as his memory was coming back has been shown to be wrong; what he said in his first Witness Statement about the Andrews having taken the 4x4 back home, as he understood the position to be, he acknowledged to be wrong. Fourth, he had seen Mr McIntyre in 1997 at home without that triggering a memory of the events; it was not as if the first time he had seen Mr McIntyre after the accident or after leaving hospital was at court. However, I do not see quite the degree of contradiction between how the Claimant described the recovery process to Dr Foster and to Dr Jones. Each involved a gradual recovery and each involved some triggering process when seeing Mr McIntyre at court. The latter enable the pieces of the jigsaw to be put in place. Over much weight was put on the “blinding revelation” by Mr Foster as being the only source of recall, when it was not.[144]I also find it difficult to see how what Dr Jones described enables any view to be formed by him about the reliability or validity of what the Claimant said. He thought the telling detail about where the discussions had taken place between the Claimant and Mr McIntyre and about the Claimant sitting in the back of the car with his eyes closed, could not be fabricated. Of course, the reliability of the Claimant is a matter for me, but in this area I would not wholly ignore the competing appraisal of either the psychologist or neurologist. I do not think that the sort of detail referred to by Dr Jones enables any conclusion to be drawn that the Claimant’s recollection is accurate. He has in my view acquired quite a complete picture in his mind of what happened but that does not help explain how it got there.[145]It is a common place in the Courts to see in witnesses how the process of thinking about a past event, with a desire however unconscious to justify or explain it in a way favourable to themselves, can persuade them that events occurred in a way which bears no close relationship to the facts. Two apparently and actually honest people can end up telling very different versions of the same incident. The Claimant has been thinking about this accident, not trying to suppress it, ever since it happened. That could account for all that he has said without it being accurate at all.[146]As Sir John Romilly MR, in Crouch v Hooper 1852 16 Beav. 182, a pedigree case, at 185 says, and it is a common experience for Courts:
“…it must always be borne in mind … how extremely prone persons are to believe what they wish. And where persons are once persuaded of the truth of such a fact, as that a particular person was the uncle of their father, it is every day’s experience that their imagination is apt to supply the evidence of that which they believe to be true. It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at least to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection, and the judging of which and drawing just inferences from which is rendered much more difficult by the circumstance that, in many cases, persons do really, by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to the mind of the witness. Thus it is, that a clue given or a note made at the time frequently recalls facts which had passed from the memory of the witness … Once impress the witnesses with [a] belief that... and further steps follow rapidly enough. In the course of a few years, by constant talk and discussion of the matter, and by endeavouring to remember past conversations, without imputing anything like wilful and corrupt perjury to witnesses of this description, I believe that in 1847 they may conscientiously bring themselves to believe that [186] they remembered conversations and declarations which they had wholly forgotten in 1830, and that they may in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations.”
[147]In the light of the limited possibility which Dr Jones offers that memory was recovered by the mechanism which he suggests, and the obvious way in which that memory might have been affected over time, I cannot conclude that the Claimant is a reliable witness about the two hours before the accident. Still less, in the light of the evidence of Mr McIntyre, who suffered no extensive memory loss in that way, could I prefer what the Claimant said. What Mr McIntyre said is supported in a number of particulars by other witnesses; he is not lying, his memory was generally good; he had no real motive to harm the Claimant, and his evidence fits more readily with what I would have concluded happened if there had been no first hand evidence. Accordingly, I accept that the Claimant took the car without the necessary permission of Mr McIntyre.

The law of the tort

[148]The parties debated whether the applicable law of the tort should be Thai or English law. The Claimant contended that the general rule in the Private International Law (Miscellaneous Provisions) Act 1995, in force a few months before the accident, should be displaced so that English law rather than Thai law governed the issue of vicarious liability. The Defendant contended otherwise. I do not propose to spend much time on this issue. I could find no relevant difference between Thai and English law. Both required the driver to have been driving for the principal’s purpose, which was admitted, and that the driver have the Defendant's authority. That it was agreed, subject to one submission by Mr Speaight, depended on whether Mr McIntyre had given his consent as alleged by the Claimant to Paul driving the car on that journey. I find that he had not. For what it is worth, I would have applied Thai law because there were insufficient factors to displace the generally applicable rule which made Thai law the applicable law. The accident occurred there, the issue of authority arose there in the context of who should or should not drive there, because of the conditions of driving there. The relevant parties may have been employed by English principals but the agents were Thai, and they were employed to work in Thailand. The car was owned in Thailand by an English company as principal but by a Thai agent. The car insurance, taken out with a Thai company, was governed by Thai law. Its terms raise issues of vicarious liability and were relevant to arguments on the facts. The nationality of the parties was less relevant.

An alternative basis for vicarious liability

[149]Mr Speaight developed an argument that even if the Claimant had not been permitted to take the car with Paul to drive it, nonetheless the Defendant could be vicariously liable to him for the negligence of Paul. I did not find this easy to follow.[150]The argument was that the Claimant authorised Paul to drive. The Claimant had a position in the company, as the site number two and transport manager who made decisions about the allocation of vehicles generally. When Mr McIntyre was not on site, the Claimant could authorise others to use the Toyota 2L, and although on this occasion Mr McIntyre was on site, nonetheless authorising use of the car was not wholly outside his remit. An agent’s act could bind a principal even when in breach of a regulation or limitation by the company as to how that authority was to be exercised. Mr McIntyre, it was said, based on answers given by him at the first trial, accepted that the Claimant could give Paul consent to drive a company car, including the Toyota 2L, which would bind the company. Therefore, when the Claimant gave his permission for Paul to drive the car, even though he had no authority to do so from Mr McIntyre who was on site, he could bind the company. Mr Speaight referred me to Stapley v Gypsum Mines [1953] AC 663.[151]Mr Speaight accepted that he was not relying on any actual implied authority; he could not do so because what would conflict with the absence of permission, an absence of actual authority. He also accepted that whatever might be the position vis a vis the others, the Claimant could not rely on any ostensible authority, since he had never been held out as having authority by the one person who could give authority. I would accept that the Claimant’s arguments would be sound in the case of a claim against the Defendant by one of the other passengers, if they had not known of the limitation on the Claimant’s authority, just as they would be sound if the car had killed a pedestrian or a person in another car. But I cannot see how they apply to this claim by the Claimant. He cannot claim to have the authority of the Defendant when he does not in fact have it, knows that he does not have it and acts in breach of its rules. The principle whereby an agent can bind a principal for acts which are in breach of an internal rule is designed to help the innocent third party, not the agent himself. Stapley is entirely against him. The fact that when Mr McIntyre was off site, the Claimant had an authority which he lacked when Mr McIntyre was on site does not advance this Claimant’s case, however much it might help others.[152]I should add that the exchange as recorded in the transcript of the first trial is not as clear cut as the submission supposes. Mr McIntyre was being questioned about whether the insurance claim was “valid” or “false”. The questions do not appear, until the last exchanges, to have drawn what to my mind is an important distinction between the effect of the Claimant giving Paul permission to drive on a claim by the Claimant and on claims by others. Mr McIntyre was clear in his answers that the Claimant could not give authority to drive the car; the insurance claim was justified because the permission of the Claimant could nonetheless be sufficient for the Defendant’s liability. The claim was potentially false because the absence of permission had not been revealed, but the insurer had not asked and was instead concerned about other issues. The Claimant, he felt, had a valid claim under the policy because the vehicle was covered. These questions and answers overall do not in my view enable any admission to be drawn out that the Defendant was bound, so as to be liable to the Claimant, by the fact that the Claimant authorised Paul to drive without having authority from Mr McIntyre to do so, as he well knew.

Ratification of the tort

[153]Mr Speaight next submitted that the Defendant through the actions of Mr McIntyre and Mr Harn in pursuing the insurance claims had ratified the tort. The only acts which could possibly justify that submission are those related to the insurance claim on behalf of the Claimant for the reasons I have already given: the others in the car would have been entitled to claim against the Defendant even though Mr McIntyre had not authorised the taking of the car because neither in Thai law nor in English law would that lack of permission have prevented it being vicariously liable in view of the Claimant’s permission; the internal company position could not have saved the Defendant.[154]I find the notion of ratifying the tort here very difficult to accept. Negligent driving is not the sort of tort which could normally be ratified by its adoption or continuation with the necessary knowledge. It is unlike unlawful distress, trespass, nuisance or unlawful arrest. The negligent driving has not been adopted, or continued and no benefit has been sought from it.[155]What is really meant is that those acts in relation to the insurance claim gave the Defendant’s retrospective authority to the Claimant’s taking the car and permitting Paul to drive. I would accept that a principal could ratify the unauthorised act of an employee or agent by giving him authority after the event in a way which affects liabilities between principal and agent, (although it may be operate differently vis a vis third parties). Whether the principal had done so would depend on what he knew and why he acted as he did. There are no very clear statements of principle which can readily be applied here. But a consistent theme appears to be that the acts must be done with full knowledge of the relevant facts. There must be some act which shows that the principal is adopting the acts of his agent.[156]I would accept that the pursuit of an insurance claim may benefit the insured party, even though it might be able to show that it was not liable and so no insured liability arose: the position may be doubtful and litigation thus avoided, the insurer may not be concerned about the point which troubles the insured, there may be elements of humanity towards those on whose behalf the claim is pursued, and it may reduce the prospect of a claim in any event. I accept that Mr McIntyre had full knowledge of the fact that he had not authorised the driving but I can see nothing which showed that his pursuit of the claim in respect of the Claimant, in effect adopted the permission which the Claimant had given without authority. The claim was only pursued for a short while. The position in relation to liability was not clear, as Mr McIntyre’s evidence and reactions at the time showed. The distinction between the Claimant and the others was not to the fore. There were considerations of humanity in helping out in the aftermath of a tragedy. The insurers were not concerned with authority and no representations were made to them about it. I would require something far less equivocal and less readily explicable by other factors before holding that the Defendant had granted authority to the Claimant retrospectively to permit Paul to drive the car in this case. Certainly there is no evidence that Mr McIntyre intended to ratify his authority, for any benefit which that might give them on the insurance. He did not need to do so or to make any representations to the insurers in order to obtain the modest benefit which he did for the Claimant. In my judgment, he did not permit the driving of the car nor later did he adopt its driving or the Claimant’s giving of permission for it to be driven through pursuing for a short while an insurance claim in difficult and in certain circumstances. He would have had no intention in doing so of exposing the Defendant to any risk of action by someone who had acted as the Claimant had.[157]It is not necessary to resolve whether the question arises as a matter of tort, and is governed by Thai law which has no provision for ratification of torts, or is a matter of agency or employment law as between the Claimant and his employer which is governed by English law.

Approbation and reprobation

[158]Mr Speaight sought to exploit the same facts in order to argue that the Defendant could not be heard to say that the Claimant had no authority to drive, for that would be to allow the Defendant to approbate and reprobate, to act inconsistently when it had in effect elected to treat itself as having authorised the driving. I ruled that this issue was governed by English law as it was a matter of procedure and not of substantive law. Banque des Marchands de Moscou (Koupetschesky) v Kindersley [1951] Ch D 112 at p119 clearly relates the doctrine to the way in which two sets of proceedings were conducted. Express Newspapers PLC v News (UK) Ltd [1990] Ch D 1320 also related to two sets of proceedings, as did First National Bank PLC v Walker [2001] FLR 505. It is that circumstance which justified its application as a means of preventing abuse of process. Its kinship with issue estoppel reinforces that. The decision in PW&Co v Milton Gate Investments Ltd [2003] EWHC 1994 (Ch) [2004] Ch D 142 at paragraphs 250-252 supports my view although it could also suggest a wider remit. But any such wider remit for the “doctrine” is not in point here. The doctrine is raised by the Claimant as a procedural point: the Defendant having taken the advantage of the insurance claim cannot be heard in this Court to argue that the Claimant had no authority. The effect of my ruling was that I declined to hear evidence from the Defendant about Thai law on this point.[159]Seen as a procedural point, as the Claimant has successfully urged, I rather doubt that the doctrine can apply here: there are not two sets of proceedings in which inconsistent positions are being taken. Such advantage as was gained from the insurance claim was not in the course of proceedings nor was the Claimant involved in them. But the reasons which I have given in relation to the absence of ratification apply here as well to show that there was no inconsistency such as to bring the doctrine into play. The pursuit of the insurance claim for the Claimant was too equivocal to amount to an election that the Defendant would defend any claim by the Claimant on the basis that he was authorised to take the car and to permit Paul to drive.

Contributory negligence

[160]It is for the Defendant to establish contributory negligence. There is no evidence from which I could conclude that the Claimant, were I in his favour on liability, was not wearing a seat belt, although there were fewer than five seat belts in the car. There is no evidence from which it could fairly be concluded that alcohol played any real part in the accident, or that the Claimant was aware that Paul was not in a fit state to drive, if that was indeed the case. Although there must be a real suspicion, in view of the party, that alcohol played a part, that is not enough. The police reports did not refer to alcohol. They did not have the equipment to test for alcohol and it was not their practice to test a deceased driver, according to Mr Harn. The police reports do not refer to alcohol. Speed on a straight but bumpy road adequately explains the accident.

Conclusion

[161]I am satisfied that the car was being driven by Paul Andrew and that his negligent driving caused the accident. I am satisfied that Mr McIntyre did not permit the Claimant to take the car nor did he permit Paul to drive. The Claimant was responsible for taking the car and permitting Paul to drive that night without the necessary authorisation from Mr McIntyre. The Defendant is not vicariously liable to him for the negligence of the driver. The other arguments fail as well. Accordingly this claim is dismissed.[162]I record my gratitude to Counsel and my respect for the way in which the Claimant’s counsel have fought this long campaign so tenaciously on his behalf. I realise full well that the Claimant will strongly disagree with the conclusion to which I have come, but his evidence, although honestly given, is in my judgment not reliable.