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Ayres v Odedra, High Court, 18 January 2013

25 January 2013
The issues

Road traffic – contributory negligence – boisterous claimant exposing himself to passersby

The facts

On the 27 September 2008 the claimant, who was 24, was in Leicester city centre with a friend, Luke Neale. They visited a bar and were joined by others, moving on to a second bar and then a nightclub. By midnight the claimant, affected by drink, was behaving boisterously, dropping his trousers and underwear and exposing himself to passersby. The area they were in was mainly a pedestrian zone, but with access for taxis and other specified types of vehicle.

The defendant had taken a friend out for a drink and after visiting a bar and a kebab shop was going home. The defendant drove along Horsefair Street, which was part of the pedestrian zone, unaware that his car should not have been driving there. In Horsefair Street, the claimant dropped his trousers and underwear again and stood in front of the defendant’s car, which came to a halt. At some point the defendant drove his car forward and ran over the claimant, who suffered a head injury, causing a serious brain injury.

The decision

He had placed himself in the road in front of the defendant’s car and remained there, knowing that the defendant would want to move forward

Although the evidence was in dispute, on balance of probabilities the claimant fell to the ground as a result of being struck by the defendant’s car. Although the defendant had said that he was worried about the actions of a hostile crowd, the judge found that there was no crowd around the defendant’s car at all, let alone a hostile one. The defendant looked for a way to pass the claimant and believed that he could get around him by driving slightly to his left but, because of the slow movement of the claimant, the defendant misjudged the time it would take the claimant to get to a position where he would be clear of the car as it turned. The judge found that the defendant had not deliberately driven at the claimant, nor was he reckless as to whether or not he might strike the claimant. The defendant relied on the decision of the Court of Appeal in North v TNT Express (UK) Ltd, a case in which the Court of Appeal absolved a driver from negligence when the claimant in that case, drunk and a member of a group of people in a similar condition, asked the defendant lorry driver for a lift and when refused, climbed onto the bumper of the defendant’s lorry. In that case, the Court of Appeal found it reasonable for the driver to drive off very slowly with a view to stopping at some quieter spot away from the group to persuade the claimant to get off.

The circumstances in this case were different to the circumstances in North. Here, the claimant was not actively interfering with the defendant’s car and, by remaining stationary, the defendant could have avoided any risk of injury to the claimant. His priority should have been to observe the claimant’s movements, and to wait until the claimant was safely clear of his car before moving off. Primary liability for the accident had to lie with the defendant.

As to contributory negligence, the claimant’s case was that his behaviour, whilst reprehensible, had no ‘causative potency’. There had been no reason why the defendant had to move forward when he did. He could have stayed where he was until the claimant was well clear of the vehicle. The accident had been caused wholly by the defendant’s decision to move forward. The defendant’s position was that the claimant, by standing in the road with his trousers around his ankles, was placing himself in a position of danger and relied on the fact that in the leading case of Eagle v Chambers, the Court of Appeal had emphasised that the test put forward was a two-fold test involving both causation and blameworthiness.

Here the claimant had behaved in a very foolish manner. The fact that he was in a pedestrian zone, with little traffic around him, may have led him to have a greater sense of security than would have been the case in an ordinary city street. At the time that he was struck, the claimant was making his way, although very slowly, towards the pavement. The judge found that the defendant had to bear by far the greater share of responsibility, but that the claimant could not be absolved of all responsibility. He had placed himself in the road in front of the defendant’s car and remained there, knowing that the defendant would want to move forward. His drunken state and dropped trousers hampered his ability to move freely and at a normal speed. It was just and equitable to apportion liability 80% to the defendant and 20% to the claimant.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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