Mohmed v Barnes & Anor

In a negligence claim arising from injury to an innocent bystander during an emergency, liability is determined by the ordinary tests of objective reasonableness and causation. Labels such as self-defence, necessity or emergency do not create a special liability test. The surrounding circumstances remain relevant factors in assessing what a reasonable person would have done at the time. A defendant may therefore avoid liability where the conduct causing injury was objectively reasonable in the threatening and rapidly developing circumstances, even though the claimant was not an assailant and the defendant knew of the claimant’s presence.

The claimant was injured when the first defendant drove a car away from a fast-developing confrontation in a McDonald’s car park. The claimant brought a negligence claim. Liability was denied, and contributory negligence was alleged. The issues of liability and contributory negligence were ordered to be tried as preliminary issues.

The defendant relied on self-defence and necessity, while the claimant argued that the defendant had driven negligently. The court also considered the relevance of the defendant’s criminal acquittal and the admissibility and weight of police records. The central issue was whether the defendant’s driving fell below the standard of the reasonable driver in the circumstances.

1. Disposition. The claim failed. The defendant was not liable in negligence because his conduct did not fall below the standard of the reasonable driver in the threatening and rapidly developing situation.
2. Applicable test. The court held that the ordinary negligence tests of breach and causation provided the appropriate framework. Self-defence and necessity required no separate consideration because no practical or conceptual circumstance material to the claim could make the conduct unreasonable for negligence purposes yet avoid liability through those defences.
3. Emergency circumstances. The fact that the defendant acted amid self-defence, emergency or similar circumstances remained relevant. Those circumstances were factors in the balancing exercise required to assess objective reasonableness. They did not impose a special or different test of liability. In an innocent-bystander case, objectively reasonable conduct could avoid liability without proving a distinct doctrine of compulsive necessity.
4. Evidence from criminal proceedings. The defendant’s acquittal and comments made at the criminal trial were not helpful. The criminal offence involved a higher degree of fault, the prosecution bore a heavier burden, the evidence differed, and the jury gave no reasons. Evidence given at the criminal trial remained admissible subject to the Civil Evidence Act 1995, although hearsay affected weight rather than admissibility.
5. Police records. The police records were admissible because they were in the agreed trial bundle, the defendant’s case was pleaded in detail, the litigation was straightforward, and no objection was taken until after the evidence closed. Their hearsay nature reduced their weight, but their prompt recording and corroborative features made them material evidence.
6. Application. The defendant was genuinely fearful for himself and his passengers while being threatened and physically confronted. Accelerating away was understandable and reasonable, although the claimant was in the vehicle’s path. The court therefore declined to assess contributory negligence hypothetically.

not stated in the judgment.