28th January 2019
James Arney, instructed by Horwich Farrelly, acted for the Defendants in a 3-day trial relating to liability only, against Richard Norton, instructed by Irwin Mitchell. The Defendant collided with the Claimant pedestrian in the car park of McDonald’s, causing him serious injuries. James Arney successfully argued that the Defendant was not negligent because the Defendant’s car was under attack.
The Defendant was one of a group of young people who travelled to McDonald’s in two cars. The Defendant, driving a Volkswagen Polo, was carrying two female passengers, while the other, a Ford Fiesta, contained two males and one female passenger. An altercation ensued inside the McDonald’s between the Defendant’s group and a large group of young Asian males. The Defendant’s group returned to their respective vehicles, followed outside by a number of Asian males.
The Claimant and his friend (two older Asian males) were parked in the bay next to the Fiesta. One of the passengers in the Fiesta made a loud racially provocative comment upon returning to their vehicle, causing some of the group of Asian males to run towards the parked vehicles. The Claimant’s friend reacted to the abuse by getting out of his car and remonstrating with the driver of the Fiesta, shouting and swearing at the driver to get out of his vehicle. One of the group managed to pull open the front passenger door of the Fiesta, while others kicked and hit the vehicle as it was reversing out of the parking bay before driving forwards and away from the scene.
The Claimant’s friend then turned his attention to the Polo to remonstrate with the Defendant, shouting and swearing at him to get out of his vehicle and fight. Despite the Defendant trying to reason with him, the Claimant’s friend got as far as opening the driver’s door and grabbing the Defendant’s arm in order to drag him out, while the group of Asian males surrounded the vehicle. The Claimant had exited his vehicle to calm down his friend, and was by now positioned in front of the Defendant’s car. Fearing for his safety and that of his female passengers, hoping and expecting that the Claimant would move out the way, the Defendant floored his accelerator to escape the attacking group.
Mr Justice Turner held the Claimant’s friend to be an unreliable witness, who was argumentative under cross examination and prone to volatility when challenged.
The Claimant’s Counsel attempted, after the conclusion of evidence, to render the evidence in the police records inadmissible, despite them forming part of the agreed Trial Bundle. The Claimant had overlooked Charnock v Rowan  EWCA Civ 2 and PD 32, 27.2. The Court held that the evidence was admissible, their status as hearsay going to weight rather than admissibility.
Mr Justice Turner held that the Defendant was in genuine fear for his safety and that of his two female passengers. These were not circumstances in which the reasonable man could be expected to weight to a nicety the relative risks involved in choosing between the options open to him. The fact that he accelerated away at speed was reasonable and understandable in these particular circumstances. The Defendant acted in a way which did not fall below the standard of a reasonable driver placed in the threatening and rapidly developing situation in which he found himself.
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