Robert Ian Ayres (A protected Person by his Mother and Litigation Friend Sue Ayres) v Mahesh Odedra
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Swift |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC 40 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: ISE90042 |
| Date | 18 January 2013 |
[2013] EWHC 40 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SITTING AT BIRMINGHAM CIVIL JUSTICE CENTRE
The Honourable Mrs Justice Swift Dbe
Case No: ISE90042
Ms Elizabeth-Anne Gumbel QC and Mr Henry Witcomb (instructed by Irwin Mitchell Solicitors) for the Claimant
Mr Simeon Maskrey QC (instructed by Berryman Lace Mawer LLP) for the Defendant
Hearing dates: 26–28 November 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE CLAIM
This is a claim for personal injuries, loss and damage sustained by the claimant, Robert Ayres, as a result of an accident that occurred at about 12.35 a.m. on 27 September 2008, on Horsefair Street, Leicester. As a result of the accident, the claimant, who is now 29 years old, suffered a serious brain injury together with other injuries, including an injury to his right knee. The claimant's brain injury has rendered him incapable of representing himself in this litigation. He is represented by his mother and litigation friend, Sue Ayres.
On 5 February 2010, the defendant appeared at the Leicester Magistrates' Court charged with an offence of driving without due care and attention arising out of the accident. Having heard evidence from the prosecution witnesses, the District Judge (Magistrate) accepted the defence submission of no case to answer and the defendant was acquitted. There is a Note of the evidence given at the Magistrates Court hearing which was not agreed.
Proceedings in this claim were issued on 15 June 2011. The claimant, who was a pedestrian at the time of the accident, alleged that his injuries had been caused when the defendant deliberately or recklessly drove his car at him, knocked him to the ground and then ran him over. Alternatively, it was alleged that the collision had been caused by the defendant's negligence.
A Defence was served on 31 August 2011, denying liability and alleging contributory negligence on the part of the claimant. On 15 March 2012, an order was made for split trials of the issues of liability and quantum. I heard evidence and submissions on the issue of liability between 26 and 28 November 2012.
At trial, the claimant was represented by Ms Elizabeth-Anne Gumbel QC and Mr Henry Witcomb and the defendant by Mr Simeon Maskrey QC. I am grateful to counsel for the able and expeditious way in which they conducted the case.
THE SITE OF THE ACCIDENT
Horsefair Street is a narrow single lane, one-way street situated within a pedestrian zone of Leicester city centre. Access to Horsefair Street is limited to taxis and other specified types of vehicles. The area of the accident site is shown on a series of photographs at TB2/125–153.
The accident happened in the vicinity of a set of traffic lights controlling a pedestrian crossing near to the junction of Horsefair Street, Halford Street (which is a continuation of Horsefair Street) and Granby Street (which joins Halford Street from the right). The junction and traffic lights can be seen in the photograph at TB2/132. The cyclist shown in the photograph is emerging from Granby Street onto Halford Street.
To the left of the traffic lights is Gallowtree Gate, a pedestrian street, which can be seen on the photographs at TB2/137 and 138.Landmarks referred to in the evidence included Starbucks, which is situated on the left corner of Gallowtree Gate as viewed from Horsefair Street; Café Nero which is situated on the corner of Gallowtree Gate and Halford Street; and the NatWest Bank which is on the opposite side of Horsefair Street. Those landmarks can be seen on the photographs at TB2/137, 139 and 130 respectively.
THE CIRCUMSTANCES LEADING UP TO THE ACCIDENT
The circumstances leading up to the accident were largely uncontroversial and can be summarised in this way.
At the time of the accident, the claimant was 24 years old. He had served as a Royal Marine Commando between May 2002 and July 2006, including two tours of duty in Iraq. After leaving the Royal Marines, he worked as an emergency medical technician and a resuscitation training officer. In September 2008, he was in full-time training as a nurse at the De Montfort University Hospital, Leicester.
At about 9 p.m. on Friday, 26 September 2008, the claimant had gone into Leicester city centre with a friend, Luke Neale. They visited a bar and, at about 10.45 p.m., they were joined by Luke Neale's brother, Liam Neale. They moved on to another bar and spent some time there. Whilst they were in the second bar, Kim Brown (the claimant's girlfriend at the time) and Ruth Atterbury (who was then Luke Neale's girlfriend) arrived. Shortly afterwards, the group decided to move on to a night club. Their route took them down Granby Street. From Granby Street, the group turned left onto Horsefair Street.
Once on Horsefair Street, the Neale brothers visited a cash machine situated outside the NatWest Bank, near to the pedestrian crossing: see the photograph at TB/144. The rest of their group, including the claimant, made their way across Horsefair Street to the paved area at the mouth of Gallowtree Gate; that area is shown on the photograph at TB2/137. After a short time, the Neale brothers joined the rest of the group. Just before the accident, the claimant and his four companions were standing outside Starbucks, approximately in line with the green refuse bags depicted in the photograph, but slightly nearer to Horsefair Street. Whilst they were there, the claimant was larking about. He dropped his trousers and underpants and was exposing himself to passers by. His girlfriend, Kim Brown, managed to pull up his trousers, but his belt remained unsecured.
Meanwhile, the defendant was approaching the accident scene. He was aged 28 years at the time of the accident and is now 32 years old. He has been employed by the same freight company for the last seven years and now holds the position of Branch Manager. At the time of the accident, he was living with his parents in Leicester, but worked away during the week. He has held a full driving licence since the age of 17 years and, at the time of the accident, drove about 25,000 miles per year.
On Friday, 26 September 2008, the defendant had returned home for the weekend and had arranged to go out for a drink with a friend, Sital Odedra. Despite the coincidence of name, she is not related to the defendant. He collected her from her home at about 9.45 p.m. and drove into Leicester city centre. They visited a public house and a bar, and then went to a kebab shop where Sital Odedra bought food. After that, they decided to go home.
The defendant was driving a silver Volkswagen Passat car, provided for him by his employers, and Sital Odedra was the front seat passenger. He drove along Horsefair Street, unaware that he was in a pedestrian zone or that, since his car was not one of the limited types of vehicles permitted to enter the zone, he should not have been driving there.
As the defendant's car approached, the claimant left the other four members of his group and walked into Horsefair Street. He dropped his trousers and underpants again and stood in the path of the defendant's car. The defendant brought his car to a halt. At some point, the defendant drove his car forward and ran over the claimant.
THE PARTIES' CASES
The dispute concerns the circumstances in which the claimant came to be injured.
The claimant's case was that he was struck by the defendant's car as it moved off, causing him to fall to the ground, striking his head on the kerb and sustaining his head injury. The defendant's car then ran over the claimant. The claimant contended that his knee injury was probably sustained when the bumper of the defendant's car struck him. Alternatively, his knee injury was caused when the defendant's car ran over his right leg.
The defendant's case was that the claimant fell to the ground and sustained his head injury before any contact with the defendant's car had occurred. The defendant drove forward, unaware that the claimant was lying in the road in front of him, and it was then that he ran over the claimant. The defendant argued that the nature of the knee injury made it probable that it had been caused whilst the claimant was lying on the ground, rather than when he was upright.
THE CCTV FOOTAGE
There was CCTV footage available both from Granby Street, the road along which the claimant and his companions had walked on their way to Horsefair Street, and from the stretch of Horsefair Street on which the accident occurred.
The footage taken of Granby Street shows the claimant sitting on a parked motorcycle having his photograph taken. He was plainly reluctant to leave the motorcycle and had to be coaxed away by Kim Brown and Luke Neale. Both the claimant and Luke Neale looked somewhat unsteady on their feet and had obviously been drinking.
The CCTV footage from Horsefair Street shows a few vehicles, mainly taxis, travelling along Horsefair Street towards the accident site. The street is narrow and winding with a number of raised areas, presumably intended for the purpose of traffic calming. The vehicles move along the street slowly. A few pedestrians can be seen.
The defendant's vehicle is seen approaching the accident scene. Unfortunately, the accident scene itself is not shown at the time the accident occurred. However, the defendant's car can be seen coming to a halt with its rear just on the traffic lights side of the "T" of the 'TAXIS' road marking visible on the photograph at...
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