Clark v Farley & Anor [2018] EWHC 1007 (QB)

[2018] EWHC 1007 (QB)Case No C90MA157IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue Manchester Civil Justice Centre, 1 Bridge Street West, Greater Manchester, Manchester, M60 9DJDate 02/05/2018
Before
MRS JUSTICE YIP DBE
Between
MR LIAM CLARKClaimantMR DARREN LEE FARLEYDefendantsMOTOR INSURERS’ BUREAUDefendantRYAN EDMONDSDefendant
Mr Christopher Melton QC and Mr Peter Burns (instructed by Metamorph Law Ltd) for ClaimantMr Stephen Worthington QC and Mr Oliver Rudd (instructed by Weightmans LLP) for Second DefendantThe First and Third Defendants appeared in person and were unrepresented for in personHearing Hearing dates: 16 and 17 April 2018
Judgment ApprovedMrs Justice Yip :
[1]On Sunday 16th September 2012, a few weeks before his sixteenth birthday, Liam Clark suffered catastrophic brain injury when he was a pillion passenger on an off-road motorcycle which collided with another such motorcycle as they were being ridden in opposite directions along a path in the Bold Forest Park near to St Helens, Merseyside.[2]Liam is now 21. I am concerned only with liability at this stage. However, from the limited medical evidence I have seen it is apparent that he suffered injury of the maximum severity. As Dr Yuill, the consultant neurologist whose initial report was served with the Particulars of Claim, puts it “it is self-evident that he will never take his place in society.”[3]The motorcycle on which the claimant was travelling was being driven by the third defendant, Ryan Edmonds. The first defendant, Darren Farley, was riding the other bike. Neither bike was insured. It follows that it will fall to the Motor Insurers Bureau to meet any unsatisfied judgment obtained against the first or third defendant. The claimant, acting through his mother as litigation friend, initially commenced his claim for personal injury against Mr Farley and the MIB. The MIB required that Mr Edmonds be joined as third defendant.[4]The first and third defendants attended the trial of the action but were unrepresented. Mr Edmonds listened to the evidence and submissions but played no active part in the proceedings. Mr Farley submitted a brief Defence denying liability in which he said, “Ryan Edmunds (sic) should be getting claimed against as he was the one who drove into me” and “it was an accident pure and simple and [I] don’t see why I am being penalized.” He gave evidence and made brief submissions, maintaining his denial.[5]The MIB defend the claim, relying on the maxim ex turpi causa non oritur actio. Their position is that the claim is barred on the basis that the claimant was involved in a joint illegal enterprise with the first and third defendants. If I reject that primary defence against one or both riders, the MIB invite me to make a finding of contributory negligence against the claimant. There are two elements to this. First, it is said that the claimant is to blame for allowing himself to be carried on the bike in all the circumstances of the case. That aspect is contested. The second point is no longer contentious. It is agreed that there should be a discount to reflect the claimant’s failure to wear a helmet. All parties have agreed that the appropriate discount would be 12.5% if the helmet issue stood alone. As the claimant is a protected party, the agreement requires my approval. If I make any other finding of contributory negligence, I will have to consider the appropriate total discount to incorporate the helmet issue. I will return to this issue in due course. The evidence[6]In the end, I heard a limited amount of evidence about the events in question. Given the serious nature of this accident, it was fully investigated by the Merseyside Police Collision Investigation Unit. Statements were taken from young men present in the vicinity of the accident. The first and third defendants were each interviewed under caution. The investigating officer P.C. Philip Clarke attended court and produced the accident report and its attachments, which included photographs, plans and the statements obtained by the police in the days following the accident. Mr Edmonds was interviewed on 28 October 2012 and Mr Farley on 17 November 2012. Transcripts of those interviews were produced by P.C. Darren Doyle. I also heard from Stephen Fagan, the vehicle examiner who had examined the bikes.[7]I heard some background evidence from the claimant’s mother, Nicola Woods and from two adults who knew him well, Frances McGann and Kevin Prescott.[8]It was apparent that both the claimant and the MIB had encountered some difficulty in obtaining the cooperation of the witnesses who had been present at the scene. Lee Callery and Ryan Lee provided statements to the claimant’s solicitors. These were served in accordance with the court’s directions and were in the trial bundle. Lee Callery attended court. However, he was not called, and no party sought to rely on the evidence in his statement. Ryan Lee did not attend and again the parties chose not to rely upon his evidence. Melvyn Carney had not provided a statement in this claim. He did attend court but was not called by any party. In the circumstances, it was agreed that in relation to these three witnesses I should have regard only to the evidence contained in their statements to the police. I bear in mind, of course, that such evidence was not tested by cross-examination. Andrew Carney did give evidence and I therefore have regard to his oral evidence, in addition to that contained in his police statement. As I have already indicated Mr Farley gave evidence, but Mr Edmonds did not.[9]The claimant and the MIB had obtained expert accident reconstruction evidence. The experts, Mr Sorton and Dr Ninham, had reached agreement such that they were not required to attend court. I was provided with their helpful joint statement dated 24 January 2018. I also had the expert evidence in relation to the helmet issue. The facts[10]On the evidence before me, there was nothing to indicate that Liam Clark was anything other than a normal boy aged 15, nearly 16. I have heard nothing negative about him. He was interested in clothes and girls. He lived in the Clock Face area of St Helens and it appears that he had many friends in the area. He tended to ‘hang around with’ boys and young men who were older than him, including Ryan Lee and Lee Callery. It was suggested on behalf of the MIB that this was evidence of Liam’s maturity. From all I have seen and heard in this case, I rather have the impression that it was more a result of the immaturity of others. I accept what his mother said:
“He was as mature as any kid that age.”
[11]There was an issue as to Liam’s interest in and experience of motorcycles prior to the accident. Darren Farley asserted in a witness statement provided to the MIB that he had seen Liam riding a motorcycle around the estate where he lived, and on the path where the accident occurred, “on many occasions”. He also claimed that he had been told by an unidentified friend that a couple of nights before the accident Liam had been riding a motorcycle and was seen talking to his mother who was in a car.[12]By contrast, Miss Woods said she had never seen Liam on a motorcycle. He had never expressed any interest in motorcycles. To her knowledge, he had never ridden one before, although she frankly admitted that he could have done so without her knowing. Her evidence was supported by that of Miss McGann and Mr Prescott, both of whom knew Liam well. They lived in the area and had never seen Liam on a motorcycle or seen or heard anything to indicate he was interested in them.[13]On this issue, I have no hesitation in preferring the evidence called on behalf of the claimant to that of Mr Farley. Miss Woods struck me as a patently honest witness. While the trial cannot have been easy for her, she gave her evidence in a measured way. She was not naïve, being willing to accept that Liam might have ridden a bike without her knowledge. She certainly did not strike me as a mother who would have condoned her son riding a motorbike about the estate. It is very unlikely that Liam regularly rode motorbikes in the vicinity of his home without his mother becoming aware of that. Darren Farley said in his statement “It is the kind of place where everyone knows everyone else’s business.”[14]I did not find Mr Farley to be a reliable witness. He displayed a total lack of empathy for the claimant and seemed interested only in himself and in denying any responsibility. I acknowledge that he suffered a head injury. I do not know whether he has suffered any neurocognitive sequelae that might have contributed to his combative attitude. He told me that his memory had been affected. Whatever the reason, he was a distinctly unimpressive witness. He insisted he had seen Liam and his friends riding motorbikes “many times”. He was unable to name any of the friends. He could not identify any specific times or locations when this occurred. He initially said he had seen Liam riding motorbikes at the accident location “many times” previously. In his oral evidence, he changed this to “once or twice” before conceding that he had never seen him there before the accident date. Cross-examined by Mr Worthington QC, he said that he did not really know Liam before the accident but knew of him. When later questioned by Mr Melton QC about his recollection of seeing Liam on motorbikes, he claimed to have known him quite well. To be blunt, I did not believe Mr Farley. I reject his evidence that Liam had frequently ridden motorcycles before the accident. There is no other evidence that Liam had ridden a motorcycle before.[15]Contrary to Mr Farley’s evidence that gangs of boys regularly rode around the streets of the estate, the police were not aware of any particular problem with motorcycles in the area. There is evidence that people did ride off-road motorcycles at the accident location, although neither the police or the adults in the community seem to have been aware of this presenting a problem at the time. Signs prohibiting the riding of motorcycles had been put up at the park entrances. However, P.C. Doyle acknowledged that broken fences allowed access to the accident location at other points so that it might be possible to get there without passing a sign.[16]I had a helpful aerial view of the accident scene and wider area. The park is on the site of the old Sutton Manor colliery. It contains a large, prominent sculpture titled “Dream” which can be spotted from the M62 when travelling between Liverpool and Manchester. It is popular with walkers and there are footpaths around the site. One such footpath runs immediately alongside the M62. As a matter of common sense, that is a less attractive route for pedestrians since it is so close to the passing traffic. However, that is not to say that pedestrians do not use it. It was constructed of stones pressed into the ground to provide a hardened surface and was generally in good condition for pedestrian traffic. It was not designed for vehicles. It is too small for four wheeled vehicles to access and, as I have said, there were signs prohibiting motorcycles. The path was known to local youths, and perhaps the local population generally, as the “Mad Mile”. It appears that this was probably related to its use by young men riding motorbikes.[17]Darren Farley said that he had been riding motorcycles at that location since he was 9 years old. He was aged 28 when the accident happened. Ryan Edmonds had owned a motorcycle for about 3 months. He rode it on the Mad Mile once or twice a week. When asked in his police interview why it was known as the Mad Mile he initially said, “Because there’s a motorway next to it”. It was then put to him that it was because bikes were ridden up and down it. He accepted that. I note that he appeared ready to accept everything put to him by the police in interview.[18]Andrew Carney also went there regularly, as did his brother Melvyn. Andrew told me that “loads of people” rode their bikes there but he had never seen Liam there before. He had never seen Liam riding or on the back of a motorbike before. While he was a somewhat diffident witness, he appeared to be doing his best to tell the truth. I did not get the impression he had set out to assist the claimant’s case. Indeed, I noticed that he “fist-bumped” Mr Farley on the way out of court, suggesting an allegiance to him.[19]There is no other evidence before me that Liam had been to the Mad Mile or had ridden on motorcycles before the day of the accident. I accept, as did Liam’s mother, that it is possible that he had done so but the evidence establishes no more than a possibility.[20]The accident date was a Sunday. Liam was out and about with his friends. About half an hour before the accident happened, Mr Prescott saw them outside a local shop, which was probably about a 10-minute walk from the scene. This fits with what Lee Callery and Ryan Lee told the police. They were with him when he got a text from Ryan Edmonds. Mr Edmonds told Liam that he was on his motorcycle in the park with Mr Farley and Melvyn Carney. Liam, Lee Callery and Ryan Lee went to join them.[21]I have no direct evidence as to what was said by Ryan Edmonds to Liam or as to what was in Liam’s mind when he went to where the bikes were being ridden. Lee has ridden motorbikes before but was on crutches that day and so was not intending to ride. Ryan Lee was apparently not interested in doing so. It is a reasonable inference that, having taken the call from Ryan Edmonds, Liam went to the Mad Mile because he was interested in the motorbikes.[22]Andrew Carney told me that his brother Melvyn, Mr Edmonds and Mr Farley had been riding their motorbikes on the Mad Mile for about two hours before the accident happened. They were riding up and down the path. There were some younger boys there, some perhaps as young as 13 or 14, but certainly other 15 and 16-year olds. The owners of the bikes were giving “backies” to the younger boys.[23]The evidence, including Mr Prescott’s sighting outside the shop, suggests that Liam and his friends had not been at the Mad Mile long when Liam got onto the back of Ryan Edmonds’ bike. The evidence as to how this came about was vague.[24]Liam and his friends seem to have chatted to others at the scene for a while. Andrew Carney said that he heard Liam asking Melvyn if he could “buy a bike”. According to Andrew, “Melvyn said no because he couldn’t ride them”. I do not consider it likely that Liam was seriously attempting to buy a motorbike at that time. Miss Woods laughed at the suggestion he might have wanted to buy a motorcycle, asking where he would have got the money from. I wonder whether Andrew misheard Liam asking whether he could “ride” rather than “buy” a bike. Alternatively, if Andrew heard correctly, I suspect this was either a bit of teenage bravado or genuine curiosity about how one buys a motorbike. In any event, the reply by the older boy, Melvyn, clearly suggests that Liam was not experienced with motorcycles.[25]None of those directly involved were able to give any account of the accident itself. Mr Edmonds could remember riding his bike on the Mad Mile but said he could not remember Liam getting on the back. Mr Farley claimed that he was wholly unable to remember the accident and that his memory for the events leading up to it was affected. In his statement, he said that he had been told that Liam had tried to ride Ryan Edmonds’ bike but could not control it. Mr Farley does not say who told him this. It is hearsay evidence which is not consistent with the other evidence before me and I reject it.[26]The account given by Andrew Carney was largely consistent with what Lee Callery, Ryan Lee and Melvyn Carney had told the police. From this evidence, I find that the accident occurred as follows. Liam got onto the back of Ryan Edmonds’ bike. He was not wearing a helmet, although the riders of the bikes were. Melvyn Carney then set off down the Mad Mile, followed by Ryan Edmonds and Liam. Darren Farley did not immediately follow, but he set off down the path several minutes later. Having got to the end of the path, Melvyn stopped and looked before turning to come back. He saw Ryan Edmonds and Liam approaching. Ryan Edmonds turned first and set off back towards the starting point; Melvyn was following him. That meant that the bikes ridden by Ryan Edmonds and Melvyn were now travelling along the path in the opposite direction to Darren Farley. Ryan Edmonds and Darren Farley collided head on.[27]The path is largely a straight track, following the line of the M62. However, it bends slightly at the accident location. At the time of the accident, overhanging branches further reduced the line of sight in each direction at the bend.[28]The joint statement of the accident reconstruction experts suggested a closing speed of the two bikes of around 50 mph. They are likely to have had a similar momentum at impact. As Mr Edmonds was carrying a passenger, his bike was heavier, indicating that it was probably travelling somewhat slower than Mr Farley’s machine. It was not suggested there was a huge difference between them. Therefore, Mr Farley was probably travelling a bit faster than 25 mph and Mr Edmonds a bit under that speed.[29]The experts agreed that “both riders were travelling at a speed such that they could not stop in the distance they could see to be clear.” They may each have steered in the same direction. The experts concluded their joint statement by saying:
“In summary, on the basis of sight lines and the probable speed of the two machines, we agree that the impact was unavoidable.”
[30]The vehicle inspection report prepared by Mr Fagan at the request of Merseyside Police confirms that neither motorcycle had lights, or a speedometer fitted. Neither bike was roadworthy, and they were both in a dangerous condition. However, it is accepted that the condition of the motorcycles did not cause or contribute to the accident. Mr Edmonds’ bike was not suitable for carrying a pillion passenger. There were no foot pegs for a passenger. The frame of Mr Edmonds’ bike was broken in two places. One break would have been concealed but the other would have been obvious to anyone looking. Mr Fagan accepted in cross-examination that neither break would have been obvious to someone just getting onto the bike, as Liam did. Legal principles[31]There was general agreement between Mr Melton QC and Mr Worthington QC as to the legal principles applying to the defence of ex turpi causa in this case, save that different views were expressed as to the relevance of the recent decision of the Supreme Court in Patel v Mirza [2017] AC 467. Understandably, Mr Farley and Mr Edmonds did not address me on the law, but I note that their interests coincide with those of the MIB so far as this issue is concerned.[32]In McCracken v Smith, MIB and Bell [2015] EWCA Civ 380, the Court of Appeal considered ex turpi causa in the context of a personal injury claim brought by a pillion passenger on a stolen off-road motorcycle being ridden on a cycle path. That authority is instructive as the facts are similar (superficially at least) and since the Court of Appeal included a helpful review of the earlier authorities, including Joyce v O’Brien[2014] 1 WLR 70.[33]It is agreed that a two-stage test applies involving(a) consideration of whether the claimant’s conduct amounted to “turpitude” and(b) if so, whether the claim against each rider is founded on that turpitude.[34]In McCracken, the Court of Appeal concluded that, on the facts, the claimant’s conduct did amount to turpitude. He was party to a joint enterprise with the rider of the bike, the essence of which was that the bike was to be ridden dangerously. On the second stage causation test, the judge should have found that the claim against the rider of the motorcycle was barred by ex turpi causa. The claimant was jointly responsible in law for the rider’s negligence and could not bring a claim in respect of his own negligent act. However, the ex turpi causa defence failed in the claim against Bell, the driver of a minibus which collided with the motorcycle. There were two causes of the accident – the dangerous riding of the motorcycle and the careless driving of the minibus. The claimant was not party to the latter and so could recover against Bell, subject to a reduction for contributory negligence, reflecting his own fault and responsibility for the accident.[35]Mr Melton QC contends that the principles applicable to joint enterprise cases are now to be modified, or at least subject to a gloss, in light of the Supreme Court decision in Patel v Mirza. Mr Worthington QC disputes this, contending that in relation to joint enterprise cases there is already an established line of authority based upon policy consideration of the issue of turpitude. There is therefore no need to modify or place a gloss upon the approach in McCracken and Joyce v O’Brien. I am inclined to agree with Mr Worthington QC. However, on the facts of this case, I am not persuaded that there are any additional policy considerations that might be relied upon following Patel v Mirza to produce any materially different outcome. I note the first instance decision of McHugh v Okai-Koi [2017] EWHC 1376, where is appears to have been common ground that Patel should apply in a personal injury tort claim. This may be subject to further debate in future cases. It is not something I need consider further in this case.[36]In relation to the “turpitude” alleged, the MIB alleged that the claimant was involved in a joint criminal enterprise of dangerous driving with both Edmonds and Farley. Mr Worthington QC accepted that, on the facts of this case, no lesser illegality could be relied upon to establish the ex turpi causa defence.[37]It is not disputed that the path was a “road or other public place” for the purposes of the Road Traffic Act 1988 and subordinate legislation. Both Edmonds and Farley were convicted of riding the motorcycles without a licence and without insurance. They do not appear to have been charged with any other offences.[38]Although Mr Farley contends that the collision was “an accident pure and simple” and denies responsibility, there is no room for any sensible argument but that both riders were riding carelessly. At the point where the accident occurred, they were each travelling along a relatively narrow path at a speed that did not allow them to stop within the distance they could see to be clear. In doing so, each of them clearly fell below the standard to be expected of a reasonably careful motorcycle rider. There is no doubt that each was negligent and that such negligence was causative of the accident.[39]Under section 2A of the Road Traffic Act 1988, a person is to be regarded as driving dangerously if:
“(a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.”
A person may also be guilty of dangerous driving if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.[40]The question of joint enterprise must now be considered in light of the Supreme Court decision in R v Jogee [2016] UKSC 8. In relation to dangerous driving, paragraph 99 falls to be considered:
“Where the offence charged does not require mens rea, the only mens rea required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act”
[41]Jogee was decided after McCracken. However, having regard to the conclusion at paragraph 24 that McCracken’s “presence on the bike must have been, and have been intended to be, an encouragement to [the rider] to ride as he did”, the outcome was clearly entirely consistent with Jogee.[42]Having had the opportunity to consider Jogee, Mr Melton QC and Mr Worthington QC modified their submissions somewhat from the position taken in the written closing submissions. It is agreed that for the defence of ex turpi causa to succeed, I must find that the claimant intended to encourage or assist the rider to ride dangerously. Mere foreseeability is not enough, although it may provide evidence from which the relevant intention can be inferred.[43]It is also common ground that I need to consider the case against each rider separately when looking at the issue of joint enterprise. While agreeing with this, Mr Worthington QC says that the bikes cannot be viewed entirely separately. The MIB’s case is that the claimant was “participating in something that involved both bikes.”[44]Following the hearing, Counsel have helpfully agreed a formulation for considering the issue of joint enterprise as follows:
“Question 1 (the factual element): Did the claimant in all the circumstances of the case encourage or assist the rider in his dangerous driving? Question 2 (the mental element): Did the claimant in all the circumstances of the case intend to encourage or assist the rider in his dangerous riding? Foresight by the claimant that the relevant rider may ride dangerously is evidence from which an intention to encourage or assist can be inferred but it is not probative of such intention. At each stage the case against each rider has to be considered separately.”
At each stage the case against each rider has to be considered separately.”[45]If I reject the defence of ex turpi causa, I must consider the claimant’s contributory negligence. As I have indicated, it is conceded that there should be some reduction to reflect his failure to wear a helmet. I must also consider whether he is to be blamed for allowing himself to be carried on the bike in all the circumstances that existed. In considering the issue of contributory negligence, foreseeability rather than intention is the relevant consideration.[46]The claimant bears the burden of proof on the issues of negligence and causation. However, I have already indicated that there can be no sensible argument there. The real issues relate to the defences of ex turpi causa and contributory negligence, in relation to which the defendants bear the burden of proof.[47]The standard of proof is the civil standard. In relation to ex turpi causa, Mr Melton QC said that as this involved a serious allegation of criminal misconduct and therefore required “the high civil standard”. I recognise that he was probably using this as a convenient shorthand. However, I bear in mind that following In re H (Minors) [1996] A 563, the appellate courts have repeatedly stressed that there is a single civil standard of proof, namely the balance of probabilities. As explained by Lord Carswell in In re D [2008] UKHL 33 at [28], the fact that a serious allegation is made does not:
“require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.”
Application of the legal principles to the facts[48]As I have indicated, the case was put on the basis that the criminality founding the defence of ex turpi causa was dangerous driving. Mr Melton QC and Mr Worthington QC both proceeded on the basis that dangerous driving was established against each rider. Mr Farley and Mr Edmonds made no representations on this issue. Perversely, a finding that their riding went beyond mere negligence and was dangerous assists them in this case. Mr Edmonds admitted to the police that he was riding dangerously.[49]The conclusion of the police accident investigator, P.C. Clarke was that “the riding of the motorcycles was dangerous as the footpath/track was narrow, the vehicles were in such a poor state of repair, the view was limited by the foliage and change in direction in the footpath/track and there was potential for conflict with people walking, or cycling.”[50]Given the speed at which the motorcycles were being ridden at the point of collision, I agree with this conclusion. We know that both riders were riding in such a way that they could not stop within the distance they could see to be clear. They might equally have encountered a pedestrian or cyclist as they took the bend.[51]There is no evidence before me of deliberate or reckless thrill seeking or risk taking on the Mad Mile. There is no evidence that the path was used as a race track. Those who went there regularly all said that they just went there to ride their bikes up and down. Mr Edmonds, who was particularly frank with the police, told them that on previous occasions if he came across pedestrians on the footpath, he would stop and let them past. While it might be thought that the participants would seek to minimise their criminality, their accounts do fit with the other evidence. The police were not aware of a particular problem; there is no evidence of previous accidents; the adults from the community were aware of sometimes hearing bikes on the Mad Mile but did not appear to be particularly concerned about the activity there.[52]Mr Worthington QC suggests that the name “the Mad Mile” almost certainly came from the fact that bikes were or were likely to be ridden at speed along the path. I have put this consideration into the balance. However, the evidence, taken as a whole, does not establish more than that it was common for motorcycles to be ridden up and down the path in much the way that happened on the day in question.[53]I am satisfied that the claimant, like other youths in the area, would have known that people went to the Mad Mile to ride their off-road motorcycles. However, the evidence before me does not establish, on a balance of probabilities, that the claimant had been to the Mad Mile for that purpose before. Andrew Carney had never seen him there, although he went there often. In the end, Darren Farley agreed he had never seen the claimant on the Mad Mile before. He, too, was a regular attender.[54]The MIB invite me to find that it was improbable that Liam had never been to the Mad Mile or been on a bike before. They rely upon inferences to be drawn from the fact that Ryan Edmonds contacted him from the Mad Mile and that he accepted the invitation to go along. This, they suggest, implies he was in the habit of going to the Mad Mile or on bikes. They also rely upon the fact that no witness expressed surprise about Liam getting on a bike or said how unlucky he was to have been injured the first time he went on a bike. There is, in my judgment, no proper foundation for the inferences the MIB invite. There must be a first time for everything and the communication between Ryan Edmonds and Liam does not make it any more or less likely that Liam had been to the Mad Mile before. I accept that it is reasonable to infer that Liam had some interest in motorbikes and probably in riding on one from the fact that he was invited and went to the Mad Mile. However, that does not establish that he had done so before. The evidence I heard suggests that he had not, although this remains a possibility.[55]In their written closing submissions, Mr Worthington QC and Mr Rudd highlighted that the claimant chose not to call Lee Callery or Melvin Carney although both came to court. However, it was open to the MIB (or the other defendants) to call those witnesses. They were offered that opportunity and also chose not to call them. Bearing in mind, where the burden of proof lay on the live issues, I do not think this is a good point to take against the claimant.[56]In considering whether the claimant was party to a criminal joint enterprise so far as Mr Edmonds’ dangerous driving is concerned, I recognise the need to draw proper and sensible inferences. In joint enterprise cases, it will be rare indeed for the MIB to be able to call any direct evidence of express encouragement or as to a passenger’s intent.[57]There is plainly some similarity between this case and McCracken. The Court of Appeal found that the trial judge in that case was wrong in distancing Daniel McCracken from the dangerous riding. The proper inference in that case was that “the two boys were parties to a joint enterprise the essence of which was that the bike was to be ridden dangerously.”[58]There are equally factual differences between this case and McCracken. In that case, the Court of Appeal concluded that the only realistic answer as to what the ride was going to entail was that it was going to entail the very kind of dangerous riding that in fact took place on that occasion. Daniel McCracken clearly knew about trials bikes and the way they were being used on the streets of Carlisle. The stolen motorcycle been stored at his home on the day of the accident. The judge found that “he must have known that the bike was likely to be ridden on the road and ridden too fast” and that it was likely to be ridden in a dangerous manner. Further, there was evidence that when it was in fact being ridden dangerously he did not avail himself of opportunities to get off.[59]On the evidence available in this case, I have not found that Liam must have known that the bike was likely to be ridden dangerously. On the available evidence, he was a newcomer to the Mad Mile and he had not been present very long before the accident occurred. He plainly intended to be carried on the motorcycle as it travelled along the path. However, there is simply no evidence from which I can infer that he intended the bike to be ridden dangerously.[60]There is no evidence that Liam knew that the motorcycle was in a dangerous condition. On the contrary, the evidence suggests he would not have known that. Therefore, even if that is relevant to Mr Edmonds’ dangerous driving, it cannot be relevant in considering Liam’s turpitude. The essence of the dangerous driving as it can be alleged against Liam is that this was a narrow path; the view was limited by foliage and by the layout through the bend and that there was potential for conflict if ridden at a speed that would not allow it to be stopped within the distance the rider could see to be clear.[61]The evidence does not establish that Liam in fact encouraged or that he intended to encourage Ryan Edmonds to ride in a way that would not allow him to stop in the distance he could see to be clear. Referring to paragraph 99 of Jogee, I find that there is no evidence that he intended to encourage Ryan Edmonds to drive dangerously with knowledge of the facts and circumstances necessary for it to be dangerous.[62]I have given careful consideration to the approach of the Court of Appeal in McCracken. However, by a fairly narrow margin, I find that this case is to be distinguished on its facts. The defendants have not established that Liam was party to a criminal joint enterprise with Ryan Edmonds to drive dangerously.[63]That finding is sufficient to determine that the defence of ex turpi causa cannot be relied upon by any of the defendants. Having found that Liam was not party to a joint enterprise in respect of Ryan Edmonds’ dangerous driving, it would be wholly illogical to find that he was party to a joint enterprise with Darren Farley.[64]I have considered the position in relation to Mr Farley had I found joint enterprise with Mr Edmonds. Even in that event, I would not have found that Liam was party to a joint enterprise in relation to Darren Farley’s dangerous driving. I find, on the evidence I heard, that Liam and Mr Farley “knew of” but did not know each other. They were certainly not friends. Liam was 15. Mr Farley was aged 28 at the time. There is no evidence that they had anything at all to do with each other while at the Mad Mile. There was apparently no discussion or agreement between them. They did not set off together. Indeed, the fact that they were not acting together but rather that Mr Farley set off one way as the other bike was travelling the other way was a central cause of the accident.[65]Mr Worthington QC said in closing that the claimant and Mr Farley were participating in something that involved both bikes. In my judgment, that is far too wide an analysis. It does not accord with the agreed formulation of the test for joint enterprise in this case. There is no evidence and no basis to infer that Liam did anything to encourage or assist Darren Farley in his dangerous driving or that he intended to do so. I do not believe it could be properly contended, on the evidence, that Liam could have been found guilty as a secondary party to Mr Farley’s dangerous driving.[66]The reality is that there were two operative causes of this accident – the dangerous driving of Ryan Edmonds and the dangerous driving of Darren Farley. Even if I had accepted that the claimant was party to that of Mr Edmonds, I would have found that the dangerous driving of Mr Farley was to be compared to the careless driving of the bus driver (Bell) in McCracken. In those circumstances, Mr Farley could not have relied upon ex turpi causa. The position of the MIB[67]Mr Melton QC and Mr Worthington QC agreed that the practical effect for the MIB would be the same whether I found that one or both riders were unable to rely on ex turpi causa. For them to escape liability to compensate the claimant, I would have had to have found that both riders could rely on the ex turpi causa defence. They agreed (referring to the approach in McCracken)that whether primary liability was upheld against one or both, the deduction for contributory negligence should be the same. In the event though, for the reasons given, I have rejected the application of the ex turpi causa defence in relation to the claim against each rider. It follows that the MIB cannot rely upon the defence to avoid compensating the claimant. The position of the first and third defendants and apportionment between them[68]It follows from my finding that the accident was caused by the dangerous driving of Farley and Edmonds and my rejection of the ex turpi causa defence, that each is jointly and severally liable to the claimant.[69]Given the likely value of this claim, I recognise that any apportionment between the first and third defendants is likely to be a theoretical rather than practical consideration.[70]There are some arguments both ways for saying that one rider should bear a greater share of the blame than the other. Mr Farley was probably riding faster than Mr Edmonds. Further, he set off knowing that the other bikes were on the track and would have had time to turn around. On the other hand, Mr Edmonds was carrying a young pillion passenger who he knew was not wearing a helmet and so was putting someone other than himself at risk. There were no rules or agreement as to how bikes should navigate the path to avoid collisions.[71]In the end, I have concluded that the dangerous driving of the two riders was essentially equally culpable and that no real distinction can be drawn between them. Therefore, apportionment as between these defendants should be on a 50:50 basis. Contributory negligence[72]Since any compromise requires the court’s approval so far as the claimant is concerned, Mr Melton QC and Mr Burns provided me with a confidential note dealing with their approach to the helmet issue. It is appropriate to maintain confidentiality in this note, as the court does with advices provided to assist when approving a final settlement. In fact, it contains nothing that would come as any surprise to the MIB. Both the claimant and the MIB are represented by vastly experienced teams. Mr Worthington QC helpfully explained the issues to the unrepresented defendants and, very sensibly, they were content to follow his recommendation.[73]I entirely endorse the approach taken to the helmet issue. There was contested expert evidence. Had the parties not reached agreement, four expert witnesses would have had to attend court, adding very significantly to the trial costs. Both sides would have been on risk with regard to the costs of that issue. There were a range of possible findings. Had the helmet issue stood to be considered in isolation, the possible deductions were 0%, 15% or 25%. A sensible compromise was reached, and I approve and adopt that.[74]However, the failure to wear a helmet does not fall to be considered in isolation. I also have to consider the wider allegations of contributory negligence.[75]Although I have not found that Liam was party to a joint enterprise to ride dangerously, nevertheless he ought to have foreseen the inherent risk in riding pillion along the path. Insofar as he was unfamiliar with the Mad Mile, he could not know what he was riding into. He would be able to see that the path was narrow and must have known that it was not designed to ride motorcycles on, even if he did not know of the express prohibition. He was still young but old enough to be conscious of the general risks associated with motorbikes.[76]Sadly, I suspect that he gave no real thought to his safety. It is fair to say that many boys of his age fail to properly consider risks. Liam paid very heavily for the risk he took.[77]I have to look at the relative blameworthiness of the parties and at the causative impact of what they did. That necessarily involves considering the helmet issue together with the other blameworthiness. I confess that I am not sure I entirely follow the reasoning of the Court of Appeal in McCracken on this issue (see [63] and [67]). In that case, there appears to have been a deduction of 50% on the basis that Daniel McCracken was jointly responsible for the dangerous driving, to which the agreed deduction of 15% for the helmet issue was then added. My understanding (I believe shared by both Leading Counsel) is that the correct approach is to look at relative blameworthiness and causative potency as a whole, rather than assessing elements of contributory negligence separately and adding the percentages together. I do, however, entirely agree that someone like Daniel McCracken who is culpable in dangerous driving and who additionally was not wearing a helmet should plainly bear a greater degree of responsibility than the other merely negligent driver.[78]The position is different here and Mr Worthington QC contends for a finding of no more than 50% in total. On my findings, Liam was careless about his own safety, but his blameworthiness is to be set against the dangerous driving of the riders. Even incorporating the agreement on the helmet issue, I consider that his share of responsibility should be less than that of the defendants. Leaving aside the helmet, I do not think a discount greater than one-third would be called for. Reflecting the agreement between the parties as faithfully as I can but also taking care not to double-count in assessing Liam’s relative blameworthiness, I consider that the appropriate total discount for his contributory negligence is 40%. Conclusion[79]It follows that the claimant is entitled to recover against each of the first and third defendants to the extent of 60% of his damages to be assessed. The second defendant will be required to satisfy the judgment under its contingent liability pursuant to the Uninsured Drivers Agreement. In as much as it becomes relevant, liability is to be apportioned equally as between the first and third defendants.

Cited in 2 later judgments