Saturday, 19 January 2013

High Court judgment on liability for 2008 accident in Leicester

Mrs Justice Swift has given her judgment in Ayres v Odedra [2013] EWHC 40 (QB).   The Daily Mail - 19th January - carried an article about the case - Drunk Royal Marine hit by car as he stood in the road with his trousers down can claim MILLIONS in compensation, judge rules

In a nutshell, Swift J held that the driver (Mr Odedra) was liable for negligence when his car struck Mr Ayres in a narrow, single lane, one-way Leicester street in September 2008.  Swift J ruled that Odedra had NOT acted either deliberately or recklessly.  However, applying the law of contributory negligence, Swift J held Ayres to be 20% at fault because of his 'very foolish' conduct.  Ayres suffered severe damage to his right leg but also very severe brain damage as a result of him falling against the kerb and banging the back of his head.

Ayres had
been drinking with friends and they were on their way to another bar.  Ayres decided to drop his trousers and stand in front of Odedra's car.  Odedra stopped but, shortly afterwards. decided to move away.  At this point, Ayres was near the offside front of Odedra' car.  In moving forwards, the car struck Ayres.

Negligence is a tort (civil wrong) under common law.  It is based on the idea of 'duty of care' being owed, in certain circumstances, by one person towards another person.   A driver owes a duty of care to other road users.  Breach of the duty of care has to be proved and also the breach must have caused damage.  In certain respects, the law has been modified by statute.  An example is contributory negligence - see later in this post.

The judgment is worth reading in full since it is a good illustration of the evidential difficulties faced by judges in this type of case.  Four non-expert witnesses were called for the claimant but only one was truly independent.  The defendant gave evidence as did his passenger.  In addition, there were six expert witnesses and, between them, their evidence related to the brain damage, the knee injury and certain marks which were on the bonnet of the car - [see paras 79 to 101 for discussion of their evidence].  Over 4 years had elapsed since the incident and the hearing of the case.  During this time, the evidence of the non-expert witnesses had 'developed' and so Swift J concentrated mainly on their statements made shortly after the incident.  Often, witnesses go over events in their minds and are apt to alter details.  For this reason, their evidence at a trial may not tally with earlier statements.  This must surely point to the need for factual hearings to be as close as possible to the events in question.

The learned judge's findings of fact are set out at paras. 130-136 of the judgment.

This form of case is very fact-dependent.  The findings of fact are crucial in terms of deciding liability and also the question of contributory negligence.  When reading the judgment, it must be remembered that the judge had photographic evidence (not included in the judgment but referred to), some CCTV evidence, written expert evidence plus the testimony in court of some of the experts, and also the evidence of the non-expert witnesses who the judge listened to and observed.  None of this is available to either the reader of the judgment or readers of the Daily Mail.

Many of the Daily Mail readers were very critical of the judgment.  For example:

How can a driver be at all to blame when some berk is standing in the middle of the road!
Don't agree with this at all. The Royal Marine has done something stupid, injured himself and now wants someone to blame?
Please correct me if I'm wrong, but the way I understand this is; It's perfectly acceptable to stand in the middle of a road exposing yourself, (presumably in the dark) and any driver colliding with you should accept most of the blame?
 If he stood in front of oncoming traffic how can he possibly be only 20% to blame? While the result is very sad, I would regard it as entirely his own fault and a lesson to others of the perils of drinking too much.

Where a driver is placed in the situation of Odedra, there can be a considerable dilemma for that driver.  It is conceivable that he may feel that he is under threat.  If an incident occurs, the actions of that driver will be judged - analytically - by a court at a (much) later date.  Where the driver is judged to have been on the horns of a dilemma, that may be considered as part of the analysis as to whether he is liable in negligence.  In some factual situations, he might not be liable since his conduct might be judged to have been reasonable in the circumstances..  At para 140, Swift J gave the example of Lee North v TNT Express (UK) Ltd [2001] EWCA Civ 853 but the judge ruled against Odedra on this saying [143] -

'I have found that there was no hostile crowd around the defendant's car before the claimant was injured. I am satisfied that, although there were people in the vicinity, they were not directing their attention towards the defendant or his car. There was therefore no reason for the defendant to be looking anywhere other than at the claimant. The fact that the claimant was drunk and potentially unsteady and liable to fall was or should have been evident to the defendant. The circumstances were very different from those in Lee North. 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 forward.'

Contributory negligence is based on the Law Reform (Contributory Negligence) Act 1945 which was enacted to replace older rules of the common law.  Generally, the appellate courts do not interfere with a judge's findings as to the amount of liability in contributory negligence.  Ayres was held to be 20% liable for his own injuries.  The law is discussed at paras 145 to 153.  In accidents between vehicles and pedestrians, the driver normally is made to carry the greater share of liability though, sometimes, there can be exceptions.

Swift J has very considerable experience in this area of the law.  In 2008 she ruled on an award for a promising footballer who suffered serious injuries.  She awarded over £4m in damages and this was upheld on appeal: Collett v Smith and Middlesborough Football and Athletics Co. [2008] EWHC 1962 (QB)


  1. Only 20% to blame for his own misfortune ? Where does this judge live ! More like 95%

    Yet again the motorist is to blame. It surely can't be because he has insurance, can it ?

    1. Ed (not Bystander)21 January 2013 at 16:04

      If you can't stop safely in the space you can see ahead, you are driving too fast. There are no exceptions to this. Mr Ayres was stationary. Mr Odedra has no excuse.

    2. "Yet again the motorist is to blame. It surely can't be because he has insurance, can it?"

      Actually, this is very often a consideration of the court when it determines liability in cases of negligence. It has to decide, as a matter of public policy, who is most able to bear losses. Do you disagree with this principle? If so, why?

    3. This comment has been removed by the author.

    4. The principles for apportioning liability are set out at paras 145 onwards of Swift J's judgment where the case law is discussed. The pedestrian is only rarely to be held more liable for the damage which occurred than a driver.

  2. Swift J is one of the best there is - trained by Dame Janet Smith no less.

  3. Happily, Google street view can provide us with some help with context. The incident occurred somewhere around the pedestrian crossing here, in the depths of a pedestrian zone (entry sign here).

    1. Thank you for the links. The fact that this was a pedestrianised area was mentioned in the judgment though certain types of vehicle were permitted. However, as far as I can tell, this fact did not in any way affect liability.

  4. It is common for people to claim that judges decide against motorists because they have to be insured.

    There are several cases in which judges have stated that the insurance positions of the parties should be ignored when determining liability e.g. Morgans v Launchbury [1973] AC 127. As far as I know, this is still good law.

    1. ObiterJ - that's interesting. How is that line of argument reconciled with the principle (in eg Nettleship v. Weston [1971] 2 QB 691) that the insurance position is relevant to the consideration of where liability should fall?

  5. Nettleship v Weston

    Compulsory insurance required by statute law led the Court of Appeal to conclude that no allowance should be made for learner drivers.

    Insurance cover was relevant in Nettleship v Weston because the existence of insurance made it undesirable for the court to permit any lower standard for learner drivers. Any other decision would result in injured parties obtaining less than they ought to obtain. However, when it comes to an assessment such as that required in Ayres v Odedra, the relevant question relates to apportioning liability.

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