If you’re on drugs, you’re not automatically at fault
I was badly hurt in a junction crash. I was riding at the head of a queue of traffic, having pulled away from the lights, just as it was getting dark.
I accelerated to about 60 mph. There are two speed cameras on this stretch. I saw a car ahead of me, facing towards me in the right hand-turn lane, I was about ten metres or so away when the car turned hard across me.
When I was lying in the back of the ambulance, a police officer asked the paramedics if I was fit to have a mouth swab taken. They said I was, and that mouth swab revealed cannabis in my blood. A secondary blood test showed that I had a level of 7.3, when the maximum level is 2.
I have got no complaints about the Police. I got a letter from them which stated: ‘Whilst you were significantly and dangerously over the blood cannabis level, at senior level it has been decided that the severity of your injuries means that it is not in the public interest to prosecute you, but we will keep a record of your tests.’
It turned out that the driver behind me was an off-duty copper who told his colleagues that after pulling away briskly to 60mph, I maintained a correct position on the road, and stayed at or around the speed limit. He also said that when the car turned across me there was no opportunity to take any evasive action. The statement is written in police speak, but it is really helpful.
I have solicitors who were appointed by my insurers, but my solicitors are telling me that because I was ‘stoned’, it may gravely damage my case, and the other driver’s insurers are saying that I had no right to be on the road stoned, and they have thrown some Latin at my solicitors – ‘Ex turpi causa non oritur actio est’. My solicitors are telling me to take an offer, which even they accept is very low because of the dope. Is this right?
It is not right. The dope does impact your case, but not in the way that your solicitors are saying, in order for the cannabis to reduce your award, the ingestion of dope has to be a morally culpable thing, it is illegal. A blood reading of 7.3 means that you were stoned, and that level of blood cannabinoid level will affect your riding ability.
There are numerous studies which show that dope affects your reactions, motor skills and special awareness. At the risk of sounding like your dad, dope and any sort of vehicle is a bad mix. Cannabis also stays in your blood for a long time. You are very lucky not to get nicked, and the Police have been unusually merciful.
The second limb of the test is, did your wrongful act contribute to your accident? The answer is no. You have a perfect witness behind you. The Police have played such a blinder for you that I do have to wonder if you like a funny handshake. The off-duty copper says in clear terms in beautiful police speak that you could have done nothing to avoid the collision. So whilst you have been a bad pot smoking rider, your evil doing has had no impact on the collision.
Just have this in mind, if this case pushes on to trial, the judge is not likely to be massively sympathetic. It will be subtle. Judges are clever people, but they are human, and you riding your bike some three-and-a-half times over the cannabinoid blood level limit is not something most judges will like, but where you have sustained loss, the judge will apply ordinary tests.
The second is a general observation. If you are out at the head of a queue of traffic with your single headlight on, in a sea of following headlights, as indeed you were, drivers – who are not universally observant- can struggle to pick you out. However, this has absolutely no impact on your case. You were there. You certainly were not invisible from a few metres away.
The defendant point about ex turpi causa is of no application in road traffic cases, I have been doing this job for 25 years, I have seen it raised twice, and in one of those cases it was abandoned, and in the one case where it was argued the judge dismissed it entirely. The concept is ‘out of a base act no remedy shall arise’, but your base act had no impact on the collision. The sole cause of this collision was the driver turning right across you. Absent any causative impact of cannabis, your cannabis is irrelevant other than it is not going to especially warm a judge to you.
However, I would not pay this a huge amount of attention. Judges, contrary to public myth, function in the real world. Judges who hear civil cases also are regularly exposed to the extraordinarily seedy underbelly of society, because they also sit as criminal judges, so they are not going to take off like a Victorian maiden seeing a mouse when they hear that some dope is involved.
Finally, I think this ‘ex turpi causa’ point has been made because the name of the person dealing with your case appears to have no formal legal qualifications, and without the kind of understanding of law which comes from at least a law degree, this ex turpi causa argument looks rather stronger than it is in reality.
Yours is not a case which can be dealt with by an unqualified clerk. You need a senior solicitor, and at the very least you want a solicitor who is on the Law Society’s Personal Injury Panel, and ideally somebody who is recommended by the two leading independent guides to the profession. Chambers and Partners and The Legal 500. I am afraid that you have got yourself a claims monkey. You need a heavy hitter. At the very least get a 10-year or more independent and qualified specialist barrister to review the claims monkey’s handiwork. You need a grown up, not a strategically shaved, unqualified person in a polyester suit.
Fast Bikes April 2019