<h2>FACTS:-</h2>
In August 1978 the Claimant was a passenger in a Jaguar motor car driven by the Defendant, who was drunk at the time. The car was involved in an accident, which was caused by the Defendant’s negligence, and the Claimant sustained serious head injuries and brain damage which resulted in him undergoing a marked personality change.

Prior to the accident the Claimant had been convicted of various criminal offences such as theft and burglary and had a poor employment record but he had had a number of successful relationships with women and there was no evidence oaf his being violent towards women. In February 1982 the Claimant assaulted and maliciously wounded two women and in September of that year raped and maliciously wounded a third woman. He was sentenced to life imprisonment for those offences and was classed as a category A (i.e. highly dangerous) prisoner.

The Claimant claimed damages against the Defendant on the grounds, inter alia, that but for the brain damage caused in the accident and the resulting personality change he would not have committed the offences for which he was imprisoned.

The case was heard in the Queen’s Bench Division before Justice Woolf.
<h2>HELD:-</h2>
<strong>Justice Woolf </strong>determined that there were four key issues that needed to be resolved. Each issue was dealt with in turn. The issues were;

(1)       Was the Defendant the driver of the Jaguar car?

(2)       Whether the Claimant was sitting in the front passenger seat? That issue was relevant because of an allegation of contributory negligence arising out of alleged failure to use a safety belt.

(3)       Whether the solicitor acting for the Defendant are entitled to allege contributory negligence arising out of the fact that the Claimant is alleged to have agreed to be driven by a driver who was under the influence of alcohol without any specific instructions from the Defendant?

(4)       The question of damages to which the Claimant is entitled

<strong>First Issue</strong>

So far as the first issue is concerned; was the Defendant the driver? Despite the Claimant being an unreliable witness, the evidence which he gave, namely, that the Defendant was the driver is supported by other evidence. His Lordship accepted this and resolved this issue straightforwardly.

<strong>Second Issue</strong>

The second issue, was the Claimant sitting in the front seat without a seat beat, was dealt with relatively straightforwardly. He found in favour of the Claimant. On the balance of probabilities on the evidence before Justice Woolf he came to the conclusion that the Claimant was sitting in one of the rear seats. This was heavily influenced by a statement the Claimant made to the police.

<strong>Third Issue</strong>

So far as the third issue is concerned, there was an agreed statement of facts put before Justice Woolf;
<blockquote><em>“Neither Insurers nor Solicitors were able to find the Defendant, nor were the Police, nor were the Claimant’s solicitors. Neither Insurers nor Solicitors ever had any communication oral or written with the Defendant. The Defendant never submitted accident report or claim form or gave any explanation or information to Insurers or Solicitors regarding the accident”</em></blockquote>
Counsel for the Claimant refer to the terms of the policy in question;
<blockquote><em>“The Insurers shall be entitled if they so desire to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise, and shall have full discretion in the conduct of any proceedings or in the settlement of the claims”</em></blockquote>
Counsel for the Claimant submitted that the allegation of contributory negligence is a positive allegation being made by his assured that he was so obviously drunk that it was not only negligent for him to drive, it actually amounted to a criminal offence. What is more is that the only evidence that this was the situation was provided by a statement which the Defendant made to the police, which included the fact, he was suggesting he was not even driving. There could be no implied authority to make this allegation which makes the allegation, which amounts to an admission of a serious offence, and therefore it should be struck out.

Justice Woolf could not accept this. To him it is no way inconsistent with the duty which the solicitors undoubted owed to the Defendant for them to make this allegation of contributory negligence. It was not a positive case that the Defendant was guilty of a criminal offence. If the Defendant’s solicitors had not made an allegation of that sort, on the facts of the case, it would have been inconsistent with the duty which they owed to the Defendant to ensure that he was not under an obligation to pay more damages than was required.

Justice Woolf then turned to the issue as to whether the Claimant was guilty of contributory negligence in agreeing to travel in the car. His Lordship was heavily influenced by the judgement of Justice Watkins in <strong>Owens v Brimmell [1977] 1 QB 859</strong>, a case with similar facts. In that case damages were reduced by 20% as a result of contributory negligence. It was stated at 860;
<blockquote><em>“a person who accepted a lift in a car might be guilty of contributory negligence if he knew that the driver had consumed alcohol in such quantity as was likely to impair to a dangerous degree the driver’s capacity to drive properly and safely or, knowing that he would be given a lift in the car, accompanied the driver on  about of drinking which had the effect eventually of affecting the passenger’s clear thought and perception and diminished the driver’s capacity to drive carefully”</em></blockquote>
While submissions were presented suggesting that the Claimant was unaware that the Defendant was drunk at the time of leaving, evidence extracted from cross –examination proved otherwise. He stated that he had left his car behind because he knew they would be drinking and also that he supposed the Defendant was in about the same condition as himself. Drunk.

His Lordship was in no doubt that it would have been quite obvious to the Claimant that the Defendant was not in a fit state to drive, that there was an obvious risk in accompanying the Defendant in that motor car and consequently held that there should be a finding of contributory negligence on the basis of the approach indicated by Justice Watkins. He came to the conclusion that the Claimant is entitled to succeed in this case because there was clear negligence on the part of the Defendant but that he was also negligent, and that the appropriate portion of blame which he should bear was 25%.

<strong>Fourth Issue</strong>

Lord Woolf, was confronted with difficulty with regards to damages in this case. Whilst, straightforwardly, accepting that special damages should be £1000 he was faced with further problems in regards to actual damages.

He subdivided this into 2 separate heads, firstly the entitlement to be compensated for the pain and suffering in regards to convention injuries apart from the personality change and secondly damages in respect of the consequence of the accident which he alleges to be due to the personality defect. This second head has two elements; first of all, there is the normal consequence of this sort of brain injury which gave rise to the minor irritability and matters of that sort. Second there is the much more fundamental claim which has been put forward on the basis of the Claimant allegation that his criminal conduct.

The Claimant’s orthopaedic injuries were addressed first. After the accident he was taken to hospital and it was found that there was a fracture of the shaft of the right clavicle; there were fractures of both the right and left ankle; there were abrasions and lacerations to the left side of the head and face. From these there exists a risk that the Claimant may develop osteo-arthritic changes.

He then addressed the more serious head injuries. He discussed several reports from nero-surgeons and several consultant psychiatrists. One of those was the report of Dr Gooddy. Part of his report read;
<blockquote><em>“a clear cut area of left anterior frontal damage extending from the inner surface of the skull to or almost to the anterior end of the left lateral” </em> </blockquote>
All of the doctors who gave evidence in regards to this head of damage agreed that the Claimant was undoubtedly affected in his personality to some degree as a result of the accident.

What was in issue was the extent of the personality change which followed. In order to assess this, Justice Woolf regarded it is most important to have in mind the evidence which was available to the court as to the Claimant’s general personality before the accident.

The Claimant’s personality and lifestyle before and after the accident were addressed in some detail. The Claimant had a poor background; he left school semi-illiterate and often acted in irresponsible and violent ways. He had a poor employment record, unable to hold down a regular job, and drunk and took drugs regularly. He had a criminal record for theft and burglary but nothing that indicated serious or grave criminal offences.

Despite this, he was successful with the ladies. He was married in August 1974. She described him as “having a heart” and was never directly violent. The marriage ended as a result of his adultery. Evidence was also taken from his mistress. She described him as being considerate in their sexual activities and she said he would not insist on her indulging in sexual practices that she was not prepared to adopt.

So far as the position after the accident is concerned, both his ex wife and his mistress described a marked change in his behaviour in relation to them. His wife said that when he came out of hospital he was really rather childlike and followed her about and manifested some of the obvious features which are indicated by persons who have had severe brain injury and whoa re affected by it. But she said after he got over his initial symptoms he became more demanding and aggressive. She described how he would insist on oral sex that he treated her rougher and rougher, and she describe one incident where he pulled her out of bed and then insisted on sexual activity. They separated soon after.

Once his marriage broke down he resumed his relationship with his mistress. She described a series of incidents thereafter which occurred up to the time when he left her for the last time. She in particular described herself as being held down and being forced to do things of a sexual nature to which she objected. She described being kicked in the face. She described also being held over a balcony with threats of having her throat cut.

Justice Woolf was satisfied that the evidence suggested that the Claimant had become more aggressive than he had been before and that he was certainly more callous and had less regard to the feelings of his partner in his sexual relations.

Next Justice Woolf considered the attacks he made on Ms Sullivan, Ms Walsh and Ms Dashwood. This was necessary as the Defendant submitted that these indicate feature which are quite different from the features which you would associate from this type of head injury. Instead he submits these could have been the affect of drugs and drink.

Having described the attacks, he returned to the medical evidence.  Reference was first made to Dr Cookson, he indicated;
<blockquote><em>“The traits in his personality before his head injury do not seem sufficient to account for the behaviour for which he is charged. His personality was altered by the head injury in 1978 in the direction of a coarsening and an exaggeration of pre-existing traits, and a loss of emotion control. This change in itself does not seem sufficient to account for the alleged offences. It is likely, however, that the alleged offences would not have occurred had he not suffered the head injury”</em></blockquote>
The view of Dr Cookson was then considerably expanded by Dr Noble. He said that injuries of the sort the claimant has suffered are;
<blockquote><em>“characterised by blunting emotional and moral sensitivity. There is a tendency to be bland and even callous. There is often apathy and irresponsibility. Control is weakened and there may be aggressiveness. The person become irresponsible and without adequate regard for the welfare of others or their own welfare, except on an immediate basis. Any anti-social tendency is likely to be enhance… from the point of view of society the most serious aspect of his personality change has been a tendency to the unleashing of perverted and aggressive sexual desires in certain circumstances” </em></blockquote>
Dr Gooddy’s evidence was next considered. He added;
<blockquote><em>“He is the sort of person who is likely to react very badly to frontal damage and in particular to display abnormal sexual behaviour, aggressiveness, or antisocial conduct. His previous personality displayed traits which would exclude him from consideration of leucotomy…”</em></blockquote>
In response the Defence called its own experts. Dr Roberts’s findings were namely if you are going to have serious anti-social behaviour as a result of a closed head injury there will normally be signs of dementia as well. There was no sign of dementia in this case, and that clearly coloured Dr Robert’s views.  In addition Dr Leigh’s evidence was considered. He finished his report by saying;
<blockquote><em>“the fact that 3.5 years had gone by before the Claimant was involved in this serious anti-social behaviour, although he had continued in hi less serious anti-social behaviour over the same period, suggests that the frontal lobe damage, itself was not responsible for this serious anti-social behaviour. Surely, if it had been, he would have manifested dangerous aggressive activity certainly within 6 months of the head injury”</em></blockquote>
Justice Woolf came to the conclusion that, notwithstanding Dr Leigh’s eminence in this field, he preferred the evidence of Dr Noble and Dr Gooddy to that of Dr Leigh. From that evidence it can be said but for the accident the Claimant would have probably resulted in the inclination to embark on a sexual attack on Mrs Dashwood, and that that attack would not have taken place but for this accident.

It seemed to him just as the brain injury could have been the effect of reducing the claimant’s inhibitions, so could the drink and the drugs which the claimant had had on the earlier occasions have reduced his inhibitions. But with less certainty, having regard to Dr Gooddy’s reference to neurological pattern of conduct, Justice Woolf have come to the conclusion that, again on the balance of probabilities, it has been show that the Claimant would not have committed those attacks but for his head injury.

He also, however, took into account the fact that the Claimant was someone who had underlying tendencies which could in any event result in his committing crimes, crimes of the same sort that he committed before but what is more important from the point of view of considering what his future would have been but for the accident, crimes which could have resulted in periods of imprisonment if they were committed when he was affected by drugs or drink so as to give way to the tendencies to which the doctors referred.

Notwithstanding the fact that in some cases the criminal pattern of behaviour terminates early, he did not think, on the balance of probabilities, this would be the situation with the Claimant. Justice Woolf thought the probability is that this pattern of behaviour would in any event have continued, certainly well into his forties and perhaps into his fifties. So that is a matter which must be taken into account in assessing what this man has lost as a result of the accident

In addition, this case is unusual because it is not suggested that he suffered any financial loss going into prison. He is a person who might worked from time to time, but the money that he has saved as a result of being boarded in prison has apparently been regarded as overweighing his loss. So I approach this case on the basis that there is no continuing financial loss as a result of his being in prison, that being the manner in which the case was presented bu counsel for the claimant

Having come to the conclusion that it would not be helpful for him to try to divide up the damages now because one has got to look at the damages in this case for the results of his accident as a whole and make the appropriate allowances from the figures which one would arrive at if one added up each of the single elements.

Looking at the matter in the best way that he could, bearing in mind the sort of compensation which is provided by the court s in the case of the worst type of injury bearing in mind the claimant’s insight into his predicament is in no way diminished, bearing in mind the sort of compensation that is provided in cases were people are wrongly imprisoned, though he emphasis that with regard to those cases there is usually compensation for loss of employment as well and that factor plays a part in the amount which is given as compensation, he thought the appropriate sum to award by way of general damages was a sum of £60,000. So the award in the case, subject to the reduction made for contributory negligence, is the sum of £60,000 by way of general damages to which must be added the sum of £1,000 for the agreed special damages.

In concluding, Justice Woolf addressed the potential of claims from the victims of the Claimant’s crimes. If this was the case he would be prepared to hear argument that the Claimant should be indemnified in the appropriate proportion by the Defendant.

Justice Woolf found in favour of the Claimant.

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