Farah v Abdullahi & Ors [2020] EWHC 825 (QB) (08 April 2020)

Derek O'Sullivan QC, leading Michael Standing, successfully acted for the Fourth Defendant in this 8-day liability and causation trial before Mr Justice Linden.

The trial concerned the catastrophic brain injuries suffered by the Claimant during four phases of road traffic collisions, involving two vehicles.  The court was required to determine complex issues of medical and legal causation, in particular in relation to diffuse axonal injury ("DAI"), as well as the issue of the identity of one driver.

The claim against the Fourth Defendant was dismissed in its entirety.

The Facts

The events occurred in the early hours of the morning of Saturday 6^th September 2014 on Harlesden High Street, and were captured on CCTV.   An altercation took place between a number of young men, many of whom had been drinking.  It was unclear to what extent, if at all, the Claimant was involved in this altercation, but there was no suggestion that he was in any way to blame for what occurred.

The Claimant was standing in the road, with a group of others, when the First Defendant, driving a Ford Focus insured by the Second Defendant, deliberately drove at the Claimant's group (Phase 1).    This resulted in the Claimant being forced, spread-eagled, onto the bonnet of a Mercedes A-Class (insured by the Fourth Defendant), and alleged to be driven by the Sixth Defendant, which was in the process of moving off in the opposite direction (Phase 2).

The Mercedes accelerated to around 28mph, before braking sharply, and depositing the Claimant in the road.  He fell onto his legs and buttocks before striking his head on the road surface. He sustained a fracture to the L4 vertebra of his lumbar spine (Phase 3).  The Mercedes driver braked after the Claimant fell from the bonnet and then drove around the Claimant.

45 seconds later, the Ford Focus, having driven away after Phase 1 and onto a side-road performed a U-turn and drove back down the High Street deliberately at the Claimant, who was still lying in the road, striking him at a speed of around 21mph.  The Claimant was pushed along the road, trapped under the Ford Focus.  Despite various attempts by the First Defendant to keep the Ford Focus moving, it eventually came to a stop as a result to the Claimant's body acting a brake, having travelled 33 meters (Phase 4).  The Claimant suffered life altering injuries, including a coup/contrecoup brain injury and diffuse axonal injury.  He lacked capacity to litigate.

The First Defendant stood trial for attempted murder for his actions. He was acquitted on this charge, and in a subsequent trial pleaded guilty to causing serious injury through dangerous driving.  The identity of the driver of the Mercedes was never uncovered during the criminal investigation, and the Sixth Defendant was never charged with any criminal offence.

The Issues

In summary, the core issues in the case were:

• At what stage was the DAI caused?
• Was the chain of causation broken at any point?
• Was the Sixth Defendant the driver of the Ford Focus?

The Fourth Defendant was successful in each of its arguments on each of these points.

• The Diffuse Axonal Injury (DAI)

DAI is caused by rapid acceleration or deceleration of the head causing damage to develop at the grey-white matter junction within the brain and between the deep structures of the brain and the more superficial structures.  However, linear acceleration does not of itself cause DAI.  It is caused by a rotational force, which in turn causes rotation of the brain relative to the skull and the shearing of the sites between the more mobile hemispheres of the brain and cerebellum, and the fixed brainstem and deep basal nuclei, which are on the central axis of the rotation.   

It was common ground that the coup/contrecoup brain injury was caused during Phase 4. In contrast to DAI, this type of injury is sustained when a linear force is applied to the brain (the coup), causing the brain to move relative to skull, causing injury brain injury at the site of impact, and also the site diametrically opposite (contrecoup).

There was disagreement however as to how the DAI was caused.  The Second Defendant argued that it was sustained solely, or in part, during Phase 3.  The Fourth Defendant argued that it was all sustained during Phase 4.

The Second Defendant relied on three reports from Mr Adel Helmy, Consultant Neurologist at Addenbrookes' Hospital.  Initially, Mr Helmy suggested that a degree of the DAI had been caused as a result of the Claimant's head striking the road during Phase 3.  However, it had been accepted by the accident reconstruction experts that the forces present during the impact in Phase 3 were of insufficient magnitude to reach the threshold where DAI might be caused.  Accordingly, Mr Helmy changed his opinion to suggest that there were sufficient rotational forces present during the period between leaving the Mercedes' bonnet, and prior to his head hitting the floor, to cause the DAI.  This theory was said to be based on his assessment of the sharp movements of the Claimant's head, shown in the CCTV.  By the time of the trial, his theory was that the DAI was caused by a combination of rotational forces when tumbling from the bonnet, and when striking his head on the ground.

His view was bolstered by reliance on a rather macabre paper from 1982 by Thomas A Gennarelli and others, entitled "Diffuse Axonal Injury and Traumatic Coma in the Primate".[1]  This experiment involved live monkeys being cemented into helmets, which were attached to a hydraulic arm.  The hydraulic arm then subjected the primates' heads to rapid acceleration through a 60° arc in sagittal, lateral and oblique planes over time period of 11 to 22 milliseconds.  This caused brain injury to the monkey's including DAI.  This study was relied upon to support the contention that DAI could be sustained without impact.

In relation to the Phase 4, it was argued by the Second Defendant that the Claimant's head was not rotated when struck by the Mercedes moving at 21mph.  Mr Helmy suggested that the Claimant's head was pinned to the road surface by the underside of the Ford Focus, and was unable to rotate, much like a nut in a nutcracker.  He based this analysis on the pattern of abrasions to the Claimant's head and face.

Following extensive cross-examination of Mr Helmy, Linden J squarely rejected his evidence.  He found him to be "careless and partisan in a way which was inconsistent with his role and duties as an expert" and that he had a "wish to defend his theory, often in the teeth of the evidence, rather than to assist the court".  He did not find his evidence credible that it would be unexceptional for DAI to arise without an impact to the head.  In respect to the Generrali paper, he found, as was submitted on behalf of the Fourth Defendant, that this study was attempting to simulate the type of force that would normally occur during a head impact, without actually striking the monkey's skulls (which would render the brain and skull too physically damaged for analysis).  Further, the forces used were far greater in the Gennarelli study than were present in Phase 3, and akin to the head being struck by the windscreen pillar of car at around 25 mph.  Additionally, the Judge rejected that proposition that DAI could be caused by the cumulative effect of low-level rotational forces over a period of time; were this the case, gymnasts, dancers and divers might expect to suffer injury of this type.

The Judge further accepted the Fourth Defendant's submissions that the evidence suggested that the Claimant had a Glasgow Coma Score ("GCS") of greater that 9 prior to Phase 4, and was accordingly "conscious".  As such, he could not have sustained any significant brain injury in Phase 3.

The Judge found that Phase 4 was the sole cause of the DAI.  The forces involved in this incident were significantly higher than in Phase 3.  Further, the mechanism of the Claimant's body being trapped between the underside of the Ford Focus and the road, thereby allowing his head to move and rotate as it collided with each surface in turn "similar to a bobble head toy" was consistent with the causation of severe DAI.

• Legal Causation

The judgment provides a helpful and comprehensive analysis of the authorities on legal causation and novus actus interveniens.

Phase 1 and Phase 3  

It was common ground that the injury sustained by the Claimant in Phase 3 was of a kind which was a reasonably foreseeable consequence of Phase 1, and that some injury in Phase 4 was reasonably foreseeable as a result of Phase 3.

The Claimant and Fourth Defendant argued that the chain of causation was not broken between Phase 1 and Phase 3, and accordingly that the Second Defendant was responsible for the fracture to the L4 vertebra, despite the fact that this was caused when falling from the Mercedes.  The Second Defendant disputed this.

The Judge accepted that the chain was not broken between the first three phases.  Although he found that the Mercedes was deliberately driving so as to remove the Claimant from his bonnet, he accepted that was not done with the intention of injuring the Claimant.  As the Claimant had been forced onto the bonnet of the Mercedes by the deliberate driving of the First Defendant whilst using his car a weapon, he was deserving of less latitude than would be afforded to the merely negligent driver.  The Claimant had arrived on the bonnet of the Mercedes through no actions of the driver of that vehicle.  The actions of driver of the Mercedes in removing the Claimant from his bonnet by braking, in the context of an altercation in the small hours of the morning, between hot headed young men under the influence of alcohol, could not be regarded as unexpected.

The Judge found that the events of Phase 1 and Phase 3 were part of a closely connected sequence over only a matter of seconds.  The driving of the Mercedes did not eclipse or obliterate the actions of the First Defendant or render them purely historic in nature, and as such, the First Defendant remained responsible for the injuries sustained in Phase 3.

Phase 3 and Phase 4

The Judge found a "significant degree of inconsistency" in the Second Defendant's argument that the chain of causation was not broken between Phase 3 and Phase 4, and the rejected this.

He held that it was entirely unexpected that a motorist would drive as the First Defendant did.  There was a gap of around 45 seconds between the Claimant landing on the road in Phase 3 and being struck in Phase 4.  Whilst it was foreseeable that some injury could be caused to the Claimant after Phase 3, either accidently or negligently, the use of a car as a weapon, running over the Claimant, and carrying on driving for approximately 33 metres, only stopping "because the claimant's body, which was underneath the car, was acting as a brake" meant that the events in Phases 2 and 3 were "eclipsed and/or obliterated by the events in Phase 4."

• The Identity of The Driver of the Mercedes

Proceedings had initially been brought against a Third Defendant, the "Person Unknown" who was said to driving the Mercedes (see the decision of Master Davison in Farah v Abdullahi & Ors [2018] EWHC 738 (QB)) following Cameron v Hussain [2017] EWCA Civ 366.

However, following the Supreme Court's decision in Cameron v Liverpool Victoria Insurance Co Ltd (Motor Insurers' Bureau Intervening) [2019] UKSC 6, the claim against the Third Defendant was struck out by consent.  Accordingly, if the Claimant could not identify the driver of the Mercedes, any injury caused by the driver of that vehicle would fall to be met by the Motor Insurer' Bureau ("MIB"), pursuant to the Untraced Drivers' Agreement of 7 February 2003.

Osman Elmi was added as a Sixth Defendant.  He did not serve a defence and played no role in proceedings.

The Claimant and Second Defendant relied entirely on hearsay evidence to establish the Sixth Defendant was the driver of the Mercedes, with no live witness being called by any party on this point.

The transcripts from the First Defendant's trial and retrial, including his oral evidence, as well as intelligence gathered in the police investigation were relied upon.  Specifically, the Second Defendant relied upon the comments made by the First Defendant at his criminal trial that the driver of the Mercedes was someone called "…something Osman or Osman something…", and that there was evidence on the Police National Computer to suggest that Osman Elmi had lived at the same address as the First Defendant.  It was suggested that the reason that the First Defendant had not given the driver's full name at trial was that he did not which to implicate Mr Elmi, who was his friend (although three was no direct evidence of this).

The Judge accepted that caution should be given when deciding on important issues based on hearsay alone, and the danger of "cherry picking" from that evidence (as per Sharp J in Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB)). 

The Judge declined to draw an adverse inference from the failure of the Sixth Defendant to attend based on the well-known guidance in Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340 and Manzi v King's College Hospital NHS Foundation Trust [2018] EWCA Civ 1882 [30], finding that the evidence that the Sixth Defendant was the driver of the Mercedes was "not particularly cogent".  In any event, the Judge was not satisfied that the Sixth Defendant had been properly served with proceedings, there being no certificate of service provided, and confirmation of service only being provided orally by counsel.

The Judge found that the burden in showing the Sixth Defendant was the driver of the Mercedes, had not been discharged.

The claim against the Fourth Defendant was therefore dismissed in its entirety, and judgment entered against the First Defendant, which the Second Defendant will be required to satisfy in full.  The claim for damages is likely to run to many millions.

Derek and Michael were instructed by Andrew Baker, Partner at Horwich Farrelly.  Their profiles can be viewed below.

A full copy of the judgment is available here.

[1] Later the subject of the 1984 People for the Ethical Treatment of Animals ("PETA") film, "Unnecessary fuss".