Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 99
PD1254/08	OPINION OF LORD TYRE in the cause KAJ DALBERG ANDERSEN Pursuer; against MOHAMMED HAMEED Defender; And ESURE SERVICES LIMITED, Party Minuters: ­­­­­­­­­­­­­­­­­________________

Pursuer: B Fitzpatrick; Digby Brown LLP

Defender: Pugh; Drummond Miller WS

Party Minuters: Sheldon; Simpson & Marwick WS

20 July 2010

Introduction

[1] The pursuer sustained injury in the early hours of 29 December 2006 when a car driven by the defender, in which the pursuer was a rear seat passenger, struck a tree at Stewarton Road, Newton Mearns, Glasgow. At the time of the accident the defender was aged 16. He was driving the car, a Vauxhall Zafira people carrier belonging to his parents, without a licence or insurance and without his parents' knowledge or permission. It was a matter of admission that the accident was caused by the defender's fault and negligence. It was also agreed in a joint minute that the pursuer was wearing a seat belt at the time of the accident. The quantum of damages (before any reduction in respect of contributory negligence) was agreed at £18,368 inclusive of interest to the date of the proof.

[2] The issue between the parties was the liability to make reparation to the pursuer of the defender and/or the party minuters who had at the material time issued a policy of insurance of the vehicle in the name of the defender's father which, subject to the provisions of the Road Traffic Acts, required them to satisfy any unsatisfied judgment pronounced by the court against the defender. For the defender it was argued that the pursuer and defender were engaged in a joint criminal activity with the consequence that the law imposed no liability on the defender. Alternatively, damages should be reduced to take account of the pursuer's contributory negligence. For the party minuters it was argued that the insurers were not liable under section 151 of the Road Traffic Act 1988 to satisfy any award of damages in favour of the pursuer because their liability was an "excluded liability" under section 151(4), the pursuer having known or having had reason to believe that the car was stolen or unlawfully taken.

[3] There were very considerable conflicts among the evidence of the pursuer, the defender and other witnesses. On the other hand there was little disagreement among the parties as to the applicable law, and it is therefore convenient to begin by setting out the legal framework within which my findings in fact will require to be applied.

The law: pursuer's claim against the defender

[4] Since the decisions in Lindsay v Poole 1984 SLT 269 and Sloan v Triplett 1985 SLT 294, it has been established that a participant in what is variously described as joint criminal activity or a common criminal enterprise can have no claim for damages for injury sustained as a consequence of the negligence of a fellow participant. Those two cases concerned injuries sustained in road accidents by a passenger who had been involved, along with the driver, in the theft of the vehicle. In Ashcroft's Curator Bonis v Stewart 1988 SLT 163, the same rule was held to apply where the injured person was not involved in the stealing of the car but allowed himself to be carried in it knowing that it had been stolen. Similarly, in Wilson v Price 1989 SLT 484, the rule was applied where the car belonged to the driver's father but had, to the knowledge of the pursuer, been taken without the owner's permission. The rationale of these latter decisions was that there is a joint criminal activity where the driver commits an offence under what is now section 178(1)(a) of the Road Traffic Act 1988 by taking and driving away a motor vehicle without the owner's consent, and the injured passenger commits an offence under section 178(1)(b) if he, knowing that the vehicle has been taken without the owner's consent, either drives it or allows himself to be carried in it without such consent. There is a defence to a charge under section 178(1)(b) if the passenger acted in the reasonable belief that the person who took the car had lawful authority or that the owner would, in the circumstances of the case, have given consent if he had been asked for it. In order to amount to joint criminal activity, it is not necessary for the passenger (or indeed the driver) actually to have been convicted under section 178 so long as they could both have been charged and convicted under that section (see the Opinion of the Lord Ordinary (Cowie) in Ashcroft at page 165E).

[5] These are all Outer House decisions. I was also referred to the Opinion of Temporary Judge JF Wheatley QC in Taylor v Leslie 1998 SLT 1248, which concerned a road traffic accident on the island of Shapinsay, Orkney, where the car belonged to the passenger's father and, having been taken without permission, was being driven by the passenger's 16-year-old friend when the accident occurred. It was held that although the taking of the car was criminal behaviour in the technical sense, unlicensed and uninsured driving (including underage driving) was common on the island, amounting on this occasion to no more than skylarking, and that it would therefore be wrong to deny a claim for damages on the ground of common criminal activity. Reference was made to Weir v Wyper 1992 SLT 579 in which the Lord Ordinary (Coulsfield) had held that there was no rule in Scots law that participation in any type of criminal conduct, however minor, disqualified an injured party from recovering damages. In so far as there might be any conflict between the decisions in Ashcroft and Wilson on the one hand and Taylor on the other, I would respectfully prefer the former. Although, as was held in Weir, the degree of criminality necessary to disqualify an injured party from recovering damages may depend upon the circumstances of the case, I adopt the view of Lord Cowie in Ashcroft (above) and of Lord Milligan in Wilson (at pages 486-7) that where both parties act in such a way as to commit an offence under section 178, that will normally be a sufficient degree of criminality to constitute joint criminal activity.

The law: party minuters' obligation to satisfy judgment in favour of the pursuer

[6] The party minuters' position is governed by statute and differs in one material respect from that of the defender. Under section 151(2)(b) of the Road Traffic Act 1988, an insurer who has issued a policy of insurance is bound to satisfy a judgment relating to a liability which is required to be covered by the policy where, inter alia:

"...it is a liability, other than an excluded liability, which would be so covered if the policy insured all persons..., and the judgment is obtained against any person other than one who is insured by the policy..."

[7] The effect of this provision, in the present case, is that the party minuters as insurers of the vehicle are bound to satisfy a judgment finding the defender liable to the pursuer for damages for personal injury unless the liability is an "excluded liability". That expression is defined in section 151(4) as meaning:

"a liability in respect of the death of, or bodily injury to, or damage to the property of any person who, at the time of the use which gave rise to the liability, was allowing himself to be carried in or upon the vehicle and knew or had reason to believe that the vehicle had been stolen or unlawfully taken, not being a person who -

(a) did not know and had no reason to believe that the vehicle had been stolen or unlawfully taken until after the commencement of his journey, and

(b) could not reasonably have been expected to have alighted from the vehicle."

[8] The difference between the position of the defender and that of the party minuters is therefore that in accordance with the case law cited the defender must, in order to establish joint criminal activity, prove that the pursuer had actual knowledge that the vehicle had been taken without the owner's consent, whereas the party minuters, in terms of section 151, must prove that the pursuer "knew or had reason to believe" that the vehicle had been unlawfully taken. In McMinn v McMinn [2006] 3 All ER 87 at para 17, Keith J observed in relation to the expression "had reason to believe":

"[Counsel for the claimant] accepted - in my opinion, rightly - that insurers do not have to prove that the injured passenger actually believed that the vehicle had been stolen or unlawfully taken. What has to be proved is that the injured passenger had the information - or what [counsel for the insurers] called 'the building blocks' - which would have afforded him good reasons for believing that the vehicle had been stolen or unlawfully taken had he applied his mind to the topic. Shutting one's eyes to the obvious is therefore enough, provided that it would indeed have been obvious to the injured passenger if he had thought about it."

[9] It follows that if, in the present case, I were to find that the pursuer did not know that the car had been taken by the defender without his parents' consent but that he had reason to believe that it had been so taken, I would find the defender liable to make reparation to the pursuer, but there would be no obligation on the party minuters to satisfy the judgment against the defender. It would, however, be necessary to address the defender's contention that the pursuer was contributorily negligent.

Facts: the defender's account

[10] It was common ground at the proof that the onus of establishing their respective defences lay upon the defender and the party minuters and accordingly the defender's evidence was led first. His account was as follows. At the material time the defender was a student at Robert Gordon University, having obtained a place at that university through clearing in September 2006 at the unusually young age of 16. He had previously been a pupil commencing his sixth year of study at Eastwood High School, in a year group which included the pursuer and the various witnesses whom I will mention. On the evening of 28 December 2006, the defender was at home alone at his parents' house in Newton Mearns. The other members of his family had departed some days earlier for the purpose of a pilgrimage in Saudi Arabia, the defender having remained at home to study for university examinations. At around 9.30 to 10.00 p.m., the idea came into his mind to take the family car for a drive. The defender's only previous experience of driving had been in summer 2005 when he had driven a pick-up truck belonging to his uncle off road on a farm in Iraq. He called his friend Tanvir Purva and arranged to pick him up round the corner from Mr Purva's house, also in Newton Mearns, to ensure that Mr Purva's parents would not see that the defender was driving his parents' car and forbid Mr Purva to come out. Mr Purva knew that the defender's parents were abroad and that the car had been taken without their permission. They drove around for a while and Mr Purva then called another friend, Ameer Din, to invite him to join them. Mr Din was picked up near his grandparents' house in Shawlands, the defender having again met him where he would not be seen getting into the car. All three were excited by the fact that the defender had taken the car without his parents' permission. Mr Din asked to have a turn of driving and the defender did allow him to drive the car later that evening. At some point Mr Din phoned a fourth friend, Junaid Shakoor, to invite him to join them but Mr Shakoor declined.

[11] The defender then drove back to the Newton Mearns area and Mr Din phoned another school friend, Gurdeep Singh (referred to by all witnesses as Michael Singh). Mr Singh was at a party somewhere nearby and the boys in the car wanted to know the location of the party to show off the car. They drove to a location off Greenfarm Road, Newton Mearns and waited for Mr Singh who came out and met them at the car. They told him how the defender had obtained it. Mr Singh then returned to the party. At this time Mr Purva had to return home and at about 11.30 p.m. the defender dropped him off at his house. Having stopped at a filling station to put petrol in the car, the defender and Mr Din next picked up two girls whom they knew and gave them a lift into the centre of Glasgow. The defender and Mr Din then drove back to the vicinity of the party in response to a call from Mr Singh inquiring whether they were returning. They did not know the girl who was having the party, nor the address at which it was being held, and so they arranged to meet Mr Singh at the place where they had met earlier. The party was in fact being held at a house in Eriskay Avenue, Newton Mearns. When Mr Singh came out to the car he was accompanied by the pursuer. It was now around 12.30 - 1 a.m. on 29 December. Mr Singh and the pursuer got into the passenger seats of the car, immediately behind the defender and Mr Din respectively. According to the defender's account, there was then a conversation about the car and about how the defender had got it. The defender told Mr Singh and the pursuer that he had stolen it from his parents who were abroad. The defender's perception at the time was that the others considered him a hero for having done so. Mr Din, who had recently passed his driving test, mocked the defender for being only 16 and having some time to wait before he could obtain a driving licence. The defender and Mr Din wanted to go to the party but were encouraged by the pursuer and Mr Singh to "go for a spin" first. The defender drove along Greenfarm Road, turned right into Barrhead Road, and then right again into Stewarton Road. The pursuer was using his phone to make a video recording of the journey. The defender had had the intention of turning right again into Jura Drive, bringing him back near to where he had picked up the pursuer and Mr Singh. However, he failed to negotiate a bend in Stewarton Road and lost control of the car, which struck a tree at speed. The pursuer and Mr Singh were both injured. The defender was advised by a passer-by to call the police and an ambulance, which he did. When the police arrived, the defender admitted that he had been driving without a licence or insurance. He was arrested and in due course charged with and convicted of various road traffic offences, including an offence under section 178(1)(a), to which he pleaded guilty.

[12] The defender's account was to some extent supported by the evidence of Tanvir Purva, Ameer Din and Junaid Shakoor. Mr Purva's recollection of the night of the accident was not good. He confirmed the car's movements as described by the defender until the time, prior to the accident, when he had to return home. He did not, however, recall the detail of conversations. He knew that the defender's parents were on holiday and that the defender did not have permission to drive the car. He did not recall whether Mr Din had been picked up at a place where he would not be seen getting into the car. He did not recall what conversation took place with Mr Din or whether Mr Din was excited. He did not recall how well or how badly the defender had driven the car. He did recall Mr Din phoning Mr Singh, who was at a party, and arranging to meet him. He did not recall whether they had met Mr Singh and the pursuer or Mr Singh alone. He did not recall any discussion of what the defender and Mr Din were intending to do after he had been taken home. Since the accident he had lost contact with the defender. He felt caught in the middle of two groups of friends.

[13] Mr Din gave his evidence on commission on 3 June 2010 because he was on holiday at the time of the proof. He confirmed that he had received a call from Mr Purva at about 11 p.m. to say that Mr Purva and the defender would come and get him. He did not yet know whether the defender was in a car or a taxi. He did not recall any discussion about the defender having taken the car without his parents' permission. He suspected that the defender had done so but did not consider it appropriate to bring the subject up. He too generally confirmed the defender's account of the car's movements although he could not remember whether they took the two girls all the way to the city centre. He confirmed that at one point during the evening he had driven the car. According to his account, he received the first phone call from Mr Singh rather than the other way round. He could not remember what the plan had been after they returned to the vicinity of the party but did not think there had been any question of himself and the defender going to the party because they did not drink alcohol. On the critical issue of what happened after the pursuer and Mr Singh got into the car, Mr Din estimated the time for the car to move off as two seconds and the time to the accident as probably about five minutes. When it was put to him that he, the pursuer and Mr Singh had persuaded the defender to go for a drive, he agreed with the suggestion. While in the car he was busy using his phone to send a music file to Mr Singh and did not hear any other conversation. He thought there had been some discussion between the defender and the pursuer but could not say what it had been about as he was preoccupied with his phone.

[14] Mr Shakoor confirmed that he had received a call from Mr Din informing him that he was out with the defender who was driving his parents' car, and that he had refused to join them because he knew the defender was too young to hold a driving licence and should not therefore have been driving the car.

Facts: the pursuer's account

[15] The account given by the pursuer of events prior to the accident was very different. He and Mr Singh spent the evening at the party in Eriskay Avenue, which was being held by a girl with whom they had both attended primary school but who was not a pupil of Eastwood High School. Mr Singh lived in Blantyre and had been dropped off at the pursuer's house in Glanderston Avenue. They walked from there to Eriskay Avenue. The pursuer estimated the distance from his house to the house where the party was being held as about 2-3 football pitches (i.e. approximately 200-300 metres). Between about 12.30 and 1 a.m. the pursuer was ready to leave the party to go home. Mr Singh told him that he had arranged a lift home for them both through Mr Din. When they left the party, the car was waiting for them outside the house where the party was being held. The pursuer noted that the car was a large blue Vauxhall Zafira, that the defender was driving and that Mr Din was sitting in the front passenger seat. He got into the seat behind Mr Din but did not say anything. There was loud music playing in the car. Mr Singh and Mr Din had a conversation about sharing music files on their phones. The pursuer had his phone out but was not doing anything in particular with it. At no time between getting into the car and the occurrence of the accident did the pursuer have any discussion with the defender or with anyone else in the car. He was not surprised to see the defender driving his parents' car because it was common at that time for his friends to pass their driving test and thereafter to drive their parents' car. His concern was to obtain a lift home on a cold night and there was no reason to be curious about the fact that the defender was driving.

[16] Mr Singh gave an account similar to that of the pursuer. In the course of the evening he had called Mr Purva from the party to inquire what he was doing. Mr Purva had told him that he was out with Mr Din and the defender. They came to meet Mr Singh at a location about a street away from where the party was being held. At that time the car was being driven by Mr Din. Mr Singh had no conversation with the defender other than to say hello. Later that night when he and the pursuer wished to leave the party he called Mr Din to arrange a lift home for both of them. The car picked them up in Eriskay Avenue. The defender was driving. There was loud music in the car and as the car moved off he was busy receiving a music file from Mr Din. The pursuer also had his phone out. Before the accident occurred Mr Singh had no conversation with the defender regarding how he had got the car and did not give any consideration to whether he had passed his driving test. Mr Singh was also injured in the accident and has an outstanding claim against the defender.

[17] During the proof there was a considerable amount of evidence as to how well the pursuer and the defender knew each other at the time of the accident. This was relevant to the issue of whether the pursuer knew that the defender was driving without a licence, from which it might be inferred that he also knew that the defender had taken the car without his parents' consent. The defender described himself as belonging to a group of about 10-15 male friends, including the pursuer and the various individuals who gave evidence, within which there were smaller groups with closer relationships. The defender was the youngest member of the larger group and believed that everyone else in the group knew this. Mr Purva regarded himself as being a friend of both but a closer friend of the defender. Mr Din and Mr Shakoor also described a large group of friends containing smaller closer groups. Mr Din considered that Mr Singh was a friend of the defender and "could not say that the pursuer was not a friend of the defender". The pursuer considered that there had been two separate groups of friends. He was not a friend of the defender. He confirmed that Mr Singh was friendly with some of the defender's friends, notably Mr Din, but this was the only link between the pursuer and the defender. Mr Singh stated that he barely knew the defender and that the defender was not a friend of the pursuer.

Assessment of the evidence

[18] The conflicts between the accounts given in evidence by the parties and the witnesses are not such as can be explained as inaccurate recollection by persons doing their best to tell the truth. I have concluded without difficulty that some of the witnesses did not give truthful evidence to the court. Having heard and observed the witnesses (and having considered the transcript of the evidence of Mr Din taken on commission), I am in no doubt that the truthful account of the night's events was that given by the defender. His narrative was detailed and convincing. Under cross-examination he was able to provide further consistent detail. He did not seek to excuse his actions in taking and driving the car; on the contrary, he acknowledged that it had been a very stupid thing to do, with serious consequences for the pursuer and, indeed, consequences for himself which were still continuing. He did not suggest that any other person should bear a share of the responsibility for what happened. One matter upon which he was cross-examined was his belief, reflected in the pleadings, that the pursuer had not been wearing a seat belt. This was contrary to the medical evidence and it had eventually been agreed in a joint minute that the pursuer was indeed wearing a seat belt. The defender explained that he had found this difficult to believe because the pursuer was leaning forward taking a video of the journey with his camera. I consider that this explanation for his personal belief is supportive of rather than damaging to the defender's credibility. Crucially, I accept the defender's evidence, and find in fact, that when the pursuer and Mr Singh got into the car, the defender stated to them that he had "stolen" it from his parents who were abroad. This apparently odd choice of expression is consistent with the defender's explanation of wanting to impress the older members of his group of friends by demonstrating his daring in taking his parents' car without permission. I therefore find that the pursuer knew that the car had been taken without the consent of the owner and that he had no reason to believe that the owner would have given consent if he had been asked for it.

[19] In contrast, the account given by the pursuer and Mr Singh appeared to me to have the hallmarks of a story fabricated to enhance their prospects of success in their respective claims against the defender and the insurers of the vehicle. Their account was lacking in convincing detail and, on the critical issue, consisted of an assertion that there was no discussion whatever of how the defender came to be driving the car. Each denied having spoken to the defender at all beyond, possibly, having said hello. In my judgment this version of events was invented by the pursuer and Mr Singh in order to defeat the defences based upon actual or constructive knowledge that the car had been taken without the owner's permission. I found it inherently incredible. While I am not prepared to go so far as to impute to either the pursuer or Mr Singh actual knowledge that the defender was not yet 17 years old at the date of the accident, I do not believe that they would have got into the car without engaging in conversation with him to some extent. I do not accept that the circumstance of the defender turning up in a large family car, a few months after having left school towards the beginning of sixth year, would not have aroused curiosity on the part of the pursuer and Mr Singh. I have no reason to doubt that the music file sharing between Mr Din and Mr Singh took place, but I do not accept it as an excuse for these witnesses being unable to hear anything said by the defender to the pursuer and the others about how he got hold of the car.

[20] There are in my view further circumstantial indications that the pursuer's account is false. Both he and Mr Singh spoke of having been picked up outside the house where the party was taking place but neither explained how the defender could have known where the house was. It seems much more likely that the defender had, as he stated, returned to the place in a nearby street where Mr Singh had come to meet them earlier in the evening. I suspect that the pursuer's motivation for being untruthful on this point was that in order to arrive at the meeting place he would have walked part of the way home, and that this would cast doubt (as I consider it does) on his explanation that he was simply taking advantage of an opportunity to obtain a lift home. Moreover, in order to follow the route which he took after picking up the pursuer and Mr Singh and prior to the accident occurring in Stewarton Road, the defender must, at least initially, have driven in the opposite direction from that which would have taken him towards the pursuer's home. No explanation was given by the pursuer as to why he said nothing about that. So far as Mr Singh's credibility as a supporting witness is concerned, it was, in my view, further undermined by his own statement that when he went out to the car on the first occasion he found Mr Din driving it; in these circumstances I do not believe his assertion that it never crossed his mind that the car was not being legitimately driven.

[21] As regards the closeness or otherwise of the relationship between the pursuer and the defender at the time of the accident, I again consider that the pursuer and Mr Singh sought to give a misleading impression that they barely knew the defender. On this chapter of material I am inclined to prefer the evidence of Mr Shakoor. He accepted that the defender's closest group of school friends were Asian Muslim boys and that the pursuer and Mr Singh were closer friends with one another than with other members of the larger group who began sixth year together. I am satisfied that within the larger group the pursuer and the defender were not close friends and that their social contact was limited. Mr Shakoor's view, however, was that within the larger group everyone would know when, for example, someone passed his or her driving test. I bear in mind that by the time of the accident the defender had been away from school and attending university for around three months and had had limited contact during that period with his former sixth year classmates who remained at school. I do not consider that the relationship between the pursuer and the defender was sufficiently close for the pursuer to have known exactly when the defender would attain age 17. Nor would I have been inclined, on the basis of the parties' acquaintance with one another, to impute to the pursuer actual knowledge that at the time of the accident the defender had not passed his driving test, although conversely there is in my view no basis in the evidence for any positive belief by the pursuer that the defender held a driving licence.

[22] I did not have the advantage of hearing Mr Din give evidence in person, but my clear impression from the transcript of the commission is that he too was not wholly truthful regarding his recollection of the night of the accident. It appears to me that his intention was to avoid saying anything which would be adverse to the interests of either of the parties. So, for example, he denied being told that the defender was driving without a licence, but admitted under cross-examination that he suspected that the defender had neither a licence nor his parents' permission to drive the car. I do not believe that when Mr Din was picked up there was no conversation about whether the defender had a licence to drive or his parents' permission. I also reject his evidence that when the pursuer and Mr Singh entered the car he could not hear the conversation that took place between the pursuer and the defender. Similarly, I do not believe that Mr Purva's recollection of the night in question was as poor as he maintained in his evidence to the court. He had, of course, been taken home some time before the pursuer got into the car, but because I do not accept that Mr Purva was doing his best to give truthful evidence to the court, I do not regard any discrepancies between Mr Purva's evidence and that of the defender as casting doubt upon the credibility and reliability of the latter.

[23] There are two further matters arising from Mr Din's evidence that appear to me to require comment. Firstly, he was asked questions about an email which he had sent on 27 January 2010 to the office of the solicitor acting on behalf of the defender. He at first denied sending an email but then admitted it after having been shown a copy. In this email a rather different account is given of events after the pursuer and Mr Singh got into the car, including a statement that the defender had said that the car belonged to his parents who were abroad, and a recollection that the pursuer and the defender discussed where the pursuer wanted to go for a "spin". Mr Din's explanation was that the email had been sent shortly after a telephone conversation with Mr Michael Ramsay, the defender's solicitor, and that the version of events in the email may have been put into his head by Mr Ramsay. In any event, he maintained in his evidence to the commission that he did not recall any conversation as narrated in the email and specifically did not recall there being any discussion about the defender's parents being abroad. Mr Ramsay stated in evidence to the court, which I accept, that he did not discuss the substance of Mr Din's evidence with him but merely explained the procedure for giving a statement. Counsel for the minuters invited me to treat the contents of the email as Mr Din's testimony in preference to his evidence to the commission. I do not feel able to accept that invitation. As I have noted, Mr Din denied that the terms of the email were in accordance with his recollection at the time of the commission. Further, the terms of the email do not strike me as a spontaneous statement by Mr Din. Rather, the email appears to me to have reproduced a precognition previously taken from Mr Din by someone other than Mr Ramsay. As such I am not persuaded that I can place any weight upon it. Mr Din's attitude to it does, however, reinforce my view that in his evidence to the commission he was more concerned with avoiding creating any difficulty for the pursuer's case than with fulfilling his duty to the court.

[24] The second matter in Mr Din's evidence requiring comment is that he spoke of two occasions upon which he had been questioned by Mr Singh and the pursuer as to the evidence which he would give in the case. The first discussion took place in November 2009 on a train to Glasgow following the discharge of an earlier diet of proof in this action. Mr Din stated that it was suggested to him that he might describe the defender as having been less friendly with the pursuer and Mr Singh than was in fact the case. The second occasion occurred on 18 May 2010 when the pursuer and Mr Singh arrived unexpectedly at his house. According to Mr Din, the purpose of the visit was again to ascertain what evidence he would give in the light of certain conversations which Mr Din had had with solicitors acting for the pursuer and for the party minuters. Mr Din felt intimidated by this visit. Both the pursuer and Mr Singh denied expressing any concern regarding Mr Din's evidence on either occasion and considered that the visit to Mr Din's house had been friendly and not intimidatory. As will be apparent from what I have already said, I have not found Mr Din to be a credible witness in relation to the circumstances prior to the accident. Nevertheless I am satisfied that he was subject to inappropriate approaches by the pursuer and Mr Singh expressing concern as to the evidence which he might give. I do not feel able on Mr Din's evidence to the commissioner alone to make a finding that it was the purpose of either the pursuer or Mr Singh to intimidate him into changing his evidence, and it is not clear whether either or both of these incidents affected his willingness to give his testimony truthfully. I am, however, satisfied that, once again, the pursuer and Mr Singh did not give a truthful account of these incidents and my view that their account of what was said prior to the accident should not be believed is reinforced.

Conclusions

[25] In the light of the foregoing assessment, I find it proved that the pursuer knew, when he allowed himself to be carried in the car, that it had been taken without the consent of its owner and that he could have been charged and convicted of an offence under section 178(1)(b) of the Road Traffic Act 1988. In these circumstances I hold that at the time of the accident he was participating in a joint criminal activity with the defender and that he is accordingly not entitled to recover damages from the defender for loss and injury sustained as a consequence of the defender's negligent act.

[26] As a result of the view which I have taken of the evidence, it is unnecessary to consider certain submissions which were made to me on alternative factual hypotheses on behalf of the defender (including a submission in relation to contributory negligence) and on behalf of the minuters. It is also unnecessary for me to grant the declarator sought by counsel for the minuters that section 151(4) applies to the pursuer's claim. I shall simply grant decree of absolvitor and reserve all questions of expenses.