Ayres v Odedra [2013] EWHC 40 (QB)

[2013] EWHC 40 (QB)

Case No ISE90042

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue SITTING AT BIRMINGHAM CIVIL JUSTICE CENTRE

Date 18/01/2013

Before

THE HONOURABLE MRS JUSTICE SWIFT DBE

Between

ROBERT IAN AYRESClaimant

MAHESH ODEDRADefendant

Ms Elizabeth-Anne Gumbel QC and Mr Henry Witcomb (instructed by Irwin Mitchell Solicitors) for Claimant

Mr Simeon Maskrey QC (instructed by Berryman Lace Mawer LLP) for Defendant

Hearing Hearing dates: 26 – 28 November 2012

Judgment

The claim

[1]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.

[2]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.

[3]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.

[4]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.

[5]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

[6]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.

[7]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.

[8]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

[9]The circumstances leading up to the accident were largely uncontroversial and can be summarised in this way.

[10]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.

[11]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.

[12]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.

[13]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.

[14]On Friday, 26September 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.

[15]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.

[16]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

[17]The dispute concerns the circumstances in which the claimant came to be injured.

[18]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.

[19]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

[20]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.

[21]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.

[22]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.

[23]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 TB2/131. The car remained stationary for only about six seconds before moving forward and out of range of the CCTV. A short time later, the aftermath of the accident can be seen, with the claimant lying near the kerb on the NatWest Bank side of the arrow marked on the road just before the pedestrian crossing: see e.g. TB2/131 and 138 and TB2/26. THE LAY EVIDENCE The lay evidence called on behalf of the claimant

THE LAY EVIDENCE

[24]The claimant has no recollection of the accident and did not give evidence. The lay witnesses called on his behalf were Brendan Cox, Luke Neale, Liam Neale and Ruth Atterbury. I also heard evidence from P.C. Samantha Richardson (formerly Pay), who spoke to the defendant shortly after the accident. I shall refer to her evidence when I deal with the defendant’s account of events.

The evidence of Brendan Cox

[25]Brendan Cox is 26 years old and is employed as a night manager at a hotel near Birmingham Airport which is owned by a well known international hotel chain. At the time of the accident, he was employed at a hotel in Leicester owned by the same chain. He was the only truly independent eye witness to the accident, since he had no previous knowledge of either of the parties. He is an experienced driver.

[26]On the evening of 26 September 2008, Brendan Cox had had dinner with his parents at a restaurant near Leicester before meeting three work colleagues in Leicester city centre. The group had visited a public house and had attempted to gain entry to a nightclub but had been refused admittance because one member of the group was wearing trainers. Brendan Cox’s unchallenged evidence was that, during the evening, he had drunk only two pints of beer and was entirely sober.

[27]Brendan Cox’s evidence was that he was standing at the mouth of Gallowtree Gate, a short distance from Café Nero, at the position marked on the plan at TB2/12. At that point he noticed the claimant outside Starbucks. He appeared “quite boisterous” and was messing around. He was obviously drunk (in his witness statement produced for these proceedings, Brendan Cox described the claimant as “wasted”) and unsteady on his feet. Brendan Cox noticed that the claimant had his trousers round his ankles and saw one of the girls in the claimant’s group pull them up. He said that nobody around the claimant appeared offended by his behaviour; instead, they seemed amused. Brendan Cox said that some members of the claimant’s group appeared more drunk than others.

[28]Shortly after the police arrived at the accident scene, Brendan Cox made himself known to them and gave an account of the accident to P.C. Martin Burn. The latter’s note of Brendan Cox’s account, made after the conclusion of their conversation, read:

“… he saw the car stop at the traffic lights and a group of males and females in the road, one of the males had his trousers down pulling Moonies at the occupants of the car, this male then leant over the bonnet of the car and was looked as if he was trying to climb on the bonnet. He then saw the car drive off hitting the male that had been pulling Moonies and then running over him. The car stopped but then drove off.”

[29]Brendan Cox’s evidence was that he would not have used the term “pulling Moonies” to describe the claimant’s actions. That term suggested that the claimant was showing his naked buttocks to the occupants of the car, whereas, in fact, he was facing the car and displaying his genitals. It seems likely that the phrase “pulling Moonies” was not his phrase but was P.C. Burn’s interpretation of what Brendan Cox had told him. His description of the claimant leaning over the car bonnet and appearing to be trying to climb on it plainly indicated that the claimant had been facing the car at the relevant time.

[30]In a police statement, made three days later after the accident, on 1 October 2008, Brendan Cox said:

“… I remember seeing the same young man again now standing in the middle of Horsefair Street, right in the path of a silver car. He appeared to be blocking the path of the car and was banging on its bonnet, not in an aggressive way; just sort of jack the lad sort of thing. Other members of his group were standing near the car. I can remember the lad in the black shirt standing 2ft from it, but he was not touching it at all. I can’t say where the others were exactly. The young man appeared to be starting to move towards the driver’s corner of the bonnet when the car driver suddenly gunned it. The car shot forward as if to mount a kerb or something. The young man fell backwards hit the ground and lay flat out. The silver car drove straight over him with ease. I saw the front offside driver’s wheel run directly over the young man’s legs and upper body. I assume the rear wheel would have done so.”

In that statement, Brendan Cox did not say that the defendant’s car had struck the claimant. When he was asked about this omission at the trial, he replied that, although he had not actually seen the car strike the claimant, the claimant’s position was such that it must have done so. He did not accept that the claimant had merely stumbled and fallen just before the car moved off.

[31]In oral evidence at the trial, Brendan Cox described how, immediately before the accident, the claimant was facing up Horsefair Street towards the defendant’s car. In his witness statement and in examination-in-chief, Brendan Cox described how, at that time, the claimant once again had his trousers round his ankles. In cross-examination, however, he conceded that he could not now remember (and had not been able to remember at the Magistrates’ Court hearing in February 2010) whether or not the claimant had dropped his trousers for a second time.

[32]Brendan Cox said that the defendant’s car was stationary in the area of the arrow marked on Horsefair Street (which can be seen in the photograph at TB2/138) near to the ‘Stop’ line of the pedestrian crossing. He said that he could not see what colour the traffic lights were showing at the time. However, he was facing the car and had a good view of what was happening.

[33]Brendan Cox went on to describe how the claimant was physically blocking the car’s path. He said that the claimant started to drum on the bonnet of the car with the palms of his hands held flat. He did not hear any noise from the drumming. In his witness statement, he described how the claimant began to move towards the offside front corner of the car, as though he was about to make his way onto the pavement outside the NatWest Bank. His statement continued:

“As he did so I heard the sound of the car’s engine ‘being gunned’ and the car suddenly accelerated straight ahead as though its driver was trying to mount a kerb edge or something. This did not appear to have been done by accident but instead appeared to me to be a deliberate act. This took me by surprise because [the claimant] was still in front of the car and standing so close to it that his hands were still close to its bonnet. As the car shot forward there was no way that [the claimant] could get out of its way. I saw [the claimant] fall down onto the road surface. I believe that he did so because he was struck by the front bumper area of the car which impacted onto the front of his knees. I then saw the car run straight over [the claimant]. Its driver made no attempt to steer either left or right and the car just went straight ahead. As the car moved from my right to left I lost sight of [the claimant] as he was masked by the car. I was aware that at least one of the nearside wheels of the car ran over [the claimant] as I saw the car ‘rise’ on its suspension as though it had gone over a ‘road ramp’. [The claimant] reappeared at the back of the car, from a position behind the rear offside wheel.”

[34]In oral evidence, Brendan Cox said that he saw the claimant moving across to the driver’s side, still drumming on the bonnet. As he got to the area of the offside headlight, the car moved forward. The claimant had one leg in front of the headlight and the other further away from it. At that point, the car moved away with enough force to run him over. He said that, as the car moved forward, he saw the claimant go over backwards. He then saw the car go over the claimant’s chest. He believed that one wheel passed over the claimant’s leg and upper body. He said that, at the time he drove off, the defendant would have definitely had the claimant within his view.

[35]Brendan Cox explained that, by using the term “gunned”, he had meant only that the defendant had driven forward. He had not heard any ‘revving’ of the engine before the car drove off. He did not recall the car turning to the left; he said that the defendant did not appear to steer either to his right or to his left, but followed the road round the slight right hand bend towards Halford Street. He did not get the impression that the defendant had made any attempt to avoid the claimant.

[36]Brendan Cox was also asked about the description of the accident he had given at the Magistrates’ Court. The notes of the hearing record that he had said that the claimant was “on the corner of the car” moving towards the cash machines at the NatWest Bank when he saw the car move forward. He thought that the claimant’s right foot had gone under the wheel of the car. The claimant fell backwards and Brendan Cox then saw the car go over his chest. This was in contrast to his description of the claimant’s position before the accident in his witness statement and his oral evidence, and to his assertion in his witness statement that the defendant’s car had struck the claimant on the front of his knees. Brendan Cox said that, at the time of the Magistrates’ Court hearing, he had assumed that the car had run over the claimant’s foot. He was adamant that the claimant had not merely stumbled and fallen just before the car moved off.

[37]Brendan Cox went on to describe what happened after the accident. The defendant stopped briefly after running over the claimant and one of the claimant’s companions tried to open the driver’s door. The defendant then drove forward between five and seven car lengths before coming to rest in Halford Street near to Café Nero. He recalled the same man who had tried to open the door of the defendant’s car running behind the car, shouting, “What have you done? What have you done?” There were a number of people around the car. They were angry about what had happened. He said that the defendant remained on Halford Street for only a short time before driving off again.

The evidence of Liam Neale

[38]At the time of the accident, Liam Neale was 18 years old and was working in a shop. He subsequently joined the Royal Marines Commandoes from which he was later discharged on medical grounds. He now works for a large supermarket chain.

[39]Liam Neale first described the accident in a statement given to the police on 30 September 2008. He told them that, when he joined his brother, Luke, and the claimant, they had obviously had a “few drinks” but they “weren’t going over the top”. He had arrived later than them and, by the time the accident occurred, he had drunk a pint of lager, a Southern Comfort and lemonade and two vodkas with coke. He described the route taken by the claimant and the other four members of the group and how, whilst they were standing on the paved area at the mouth of Gallowtree Gate, the claimant had dropped his trousers and exposed himself to passers by before Kim Brown pulled his trousers back up. He said that the claimant had then walked out onto Horsefair Street and again dropped his trousers. In oral evidence, Liam Neale acknowledged that the claimant was “obviously drunk”.

[40]Liam Neale went on to describe how, when the defendant’s car appeared, the claimant remained in the road with his arms stretched out and up in the air. The car stopped a short distance in front of the claimant and there was what he described as a “short stand off” during which he heard the car revving in a constant tone, as if to encourage the claimant to move out of the way. He said that the claimant remained in the same position whilst the car moved forward very slightly. He went on:

“[The claimant], either through loss of balance or deliberate act bent forward and placed his outstretched hands on the bonnet of the car. … The car engine quietened and it drove forward at speed colliding with [the claimant]; that caused him to be thrown, one arm and one leg into the air, he disappeared out of my view down the driver’s side of it. The car drove out of my view and I saw [the claimant] laying in almost a recovery position his head towards Gallowtree Gate and his legs all over the place towards the Bank.”

[41]In his witness statement for these proceedings, Liam Neale amended his previous estimate of the number of drinks he had had on the relevant evening to two cans of beer and two vodkas with Coke. He said that he was “merry”, but not drunk or out of control and that he had a clear memory of events. He saw the defendant’s car approach the claimant and then stop about two feet away from the claimant. He said that, at that point, the “atmosphere started to rise” and “the situation became heated”. He heard the defendant ‘rev’ the car engine aggressively as if to try and warn the claimant to move out of the way. At this point, he (i.e. Liam Neale) was standing only about four or five metres away from the defendant’s vehicle and had a clear view.

[42]Liam Neale described how the claimant was standing with his arms stretched out and how he then placed his hands flat on the car bonnet between the centre and the driver’s side. The revving of the car engine quietened and the car then moved forward, making contact with the claimant in the area of his knees and causing him to be thrown into the air. He went on to say that he was certain that the defendant’s car had made contact with the claimant, causing him to be propelled down the driver’s side of the vehicle. He said that the defendant made no attempt to avoid the claimant but instead drove straight at him. In oral evidence, Liam Neale said that the defendant’s car “scooped up” the claimant, moving him out of his view onto the offside of the car. The car went forward and stopped and he then saw the claimant lying on the road.

[43]In cross-examination, Liam Neale was asked about the events immediately before the accident. He said that he did not know what colour the traffic lights had been showing but his recollection was that the defendant had stopped some distance before the traffic lights, on the approach to the arrow shown in photograph TB2/138. He said that he did not see the claimant drumming on the bonnet of the defendant’s car and that, if the claimant had done so, he would have seen it. He described the claimant as standing facing the car squarely whilst leaning forwards with his hands stretched on the bonnet. Whilst he was in that position, the car moved forward. He accepted that, with the claimant in that position, the car was likely to have struck both his legs, rather than just one. He did not think that the claimant had fallen forward onto the car bonnet before the car moved. He was unable to explain why he had said to the police that the claimant might have bent forward “through loss of balance”. He was adamant that the car had struck the claimant, although he was unable to say whether he fell forwards or backwards; all he could say was that he ended up on the driver’s side of the car.

[44]Liam Neale said that, after the accident, his concentration was focused wholly on the claimant. He pulled up the claimant’s trousers. His legs were in “a real mess” and appeared as if they had been “broken, dislocated and squashed, all at the same time”. He said that their appearance made him “feel ill”.

The evidence of Ruth Atterbury

[45]Ruth Atterbury was 22 years old at the time of the accident. She is now 26 years old and employed as an events assistant co-ordinator. She held a full driving licence at the time of the accident.

[46]She first gave an account of the accident in a statement made to the police on 5 October 2008. At that time, she said that, when she and her companions reached Horsefair Street, they had all had “a bit to drink” and were “very merry”. She did not think her memory had been affected by the alcohol she had drunk. She told the police that the claimant had been under the influence of alcohol, as they all were, but he was not staggering or unsteady on his feet. He was “messing about”, pulling his trousers down but was not being aggressive or threatening in any way.

[47]Ruth Atterbury described how the claimant stood in the middle of Horsefair Street and once again dropped his trousers. She saw the defendant’s car approach him and come to a halt about a metre away from the claimant who was facing the car with his arms outstretched to his sides. Ruth Atterbury told the police that the claimant was standing directly in front of the driver’s position, when the defendant drove at the claimant, striking him around the knee area and causing him to fall to the other side of the car and out of her view.

[48]In her witness statement for these proceedings, Ruth Atterbury again said that the defendant’s car had struck the claimant around the knee area. She said that this had caused him to fall forwards towards the bonnet and to “slump off sideways” out of her view. At that time, she was standing about three metres from the front of the car and at an angle to it.

[49]In oral evidence, Ruth Atterbury said that, at the time of the accident, she had had four drinks whereas, at the Magistrates’ Court hearing her evidence had been that she had had three drinks: two alcopops and one vodka. She said that the claimant was drunk and in high spirits. He was not uncontrollable or falling over. She described the first time the claimant dropped his trousers, and how Kim Brown had pulled them up. He then walked into the road and dropped them again. She said that she had seen the defendant’s car approaching at a normal speed; there had been “no panic” since the driver was bound to see the claimant and had plenty of time to stop.

[50]Ruth Atterbury said that the car came to a halt, with the claimant standing facing it, towards the driver’s side. Even then, she was not concerned. The car was stationary, so there was no risk of the claimant being knocked down and she thought that he would move out of the way. She did not see the claimant drumming on the car bonnet although she was prepared to accept that he might have done so for a short time whilst she was looking elsewhere. She did not remember the driver revving the car engine. Nor did she remember the claimant moving or placing his hands or arms on the bonnet. She estimated that the car had remained stationary for about 30 seconds, after which it started to move off with the claimant still in front. It hit the claimant in the knee area, causing him to fall to the driver’s side. She said that the defendant’s car moved forward in a ‘normal’ manner for a vehicle moving off from a stationary position. At the time, the claimant was standing more or less in front of the driver and was so close to the front of the car that the defendant could not have avoided him even if he had steered to the left or the right. She said that, in any event, the width of the road would not have permitted the driver to move very far to either side.

[51]Ruth Atterbury said that she did not remember the claimant moving towards the driver’s side of the car. She said that he was already on that side, with his right knee nearer the car. She could not see his left leg. She saw the car lift him but could not say whether he fell backwards or forwards. All she could say was that he ended up lying to the side of the car. She did not accept that the claimant had fallen before the car moved off. She said that the car hit him and caused him to fall. That had caused her to become angry. She had not been aware at the time that the car had also run over the claimant’s leg.

[52]Ruth Atterbury said that, immediately after the accident, she did not realise how badly the claimant was injured. Her instinct was to run after the car which had struck him, and to ensure it did not leave the scene and/or to get its registration number. She said that, the car stopped a little further down the road near to the Café Nero. She reached the car and banged on the passenger window, shouting words to the effect of “Stop” and “What are you doing?”. She said that she and Luke Neale were on the passenger side of the car and two or three other people (not members of their group) were on the driver’s side. There was banging and shouting going on. The car then sped off, whereupon she went back to assist at the accident scene.

The evidence of Luke Neale

[53]Luke Neale was 24 years old at the time of the accident. He gave a statement to the police on 5 October 2008, in which he made clear that he did not see the accident happen, but described the surrounding circumstances. He recounted how he and the claimant had had “a few drinks” before being joined by his brother, Liam, after which they had a few more drinks. He said that he and the claimant were “just merry”, not drunk.

[54]Luke Neale said that he heard Kim Brown scream, looked round and saw the defendant’s car stationary in Horsefair Street and the claimant lying on the road. He got the impression that the car was going to leave the scene, so he ran towards it. He said that he and Ruth Atterbury went and banged on the passenger side window to get the driver’s attention. They shouted at him to stay where he was. Three other people whom he did not know were also around the car at that time. However, the car remained stationary for only about ten seconds, then accelerated away with its wheels spinning. Luke Neale said that he and another man gave chase but gave up after a short distance. He then went back to assist the claimant.

[55]In his witness statement made for these proceedings, Luke Neale repeated his description of the circumstances surrounding the accident and its aftermath. He did not recall anyone except himself and Ruth Atterbury touching the defendant’s car after the accident. He said that there was certainly no one at the front of the vehicle at any stage after the incident. Luke Neale said that, when he returned to the claimant, the sight of his legs “sickened” him as they were in a “real mess”. The evidence called on behalf of the defendant The defendant

The evidence called on behalf of the defendant

[56]The first account which the defendant gave of the circumstances of the accident was in the course of a 999 call which he made after he had driven away from the accident scene. The tape recording of the call is somewhat difficult to make out in places, but the defendant told the operator:

“Someone was messing about in front of my car; I tried to [s?]kip it past them and they went under my car… so practically I’ve run ’em over.”

He went on to say: “… he just … jumped [up?] in front of my car and took his trousers down, but I [started going tried to go?] past him and then he[just hits kicks?], like kicks it. As he went to kick it, he just drops and then my wheel went over him. So I span off him and then all his mates started opening my car so I just drove off …” [the words in brackets are amendments to the original transcript and represent what is believed to be a more accurate version.]

[57]The defendant explained to the operator that, after the incident, people were “smacking on his car” and chasing him so that he had to drive off. Later in the call, he said that the claimant’s mates had “just started opening his car and kicking his car” so he had had to drive off. He said that they were kicking his car, “…’cause I’d just run their mate over”. The suggestion that the claimant had kicked the defendant’s car, or that anyone else had done so, was not repeated subsequently by the defendant. In oral evidence, the defendant was unable to explain why he had told the 999 operator that the claimant and others had kicked his car.

[58]Having made the 999 call, the defendant visited a nearby public house where he had a vodka to steady his nerves. He said that it was only his second alcoholic drink of the evening and, indeed, he subsequently passed a breathalyser test. He then waited in his car outside the public house for the police to arrive.

[59]P.C. Samantha Richardson spoke to the defendant just before 1 a.m. on 27 September 2008. She noted that he was shocked and shaking. She administered the caution and asked the defendant what had happened. She did not record his response verbatim, but made a note of the gist of it in her pocket book after their conversation. Her note was:

“…[the defendant] said that he was at the traffic lights on HORSEFAIR STREET as they were on red. Whilst at the traffic lights [the claimant] went in front of the vehicle and pulled his trousers down doing a mooney. The lights then changed to green so the [defendant] moved around [the claimant] so to go round him. [The defendant] continued to say that he then hit [the claimant]. At that point people started to hit his vehicle so he drives off down the road. People then followed the vehicle and started to hit it again. Due to this [the defendant] drove off. He parked his vehicle on CHARLES STREET and then contacted police.”

[60]P.C. Richardson gave oral evidence. She said that she could not recall the defendant using the phrase ‘doing a mooney’ and, indeed, she understood that was not what the claimant had done. She could not now remember the detail of the conversation with the defendant or the extent to which the account she had written was accurate.

[61]The defendant was taken to the police station where he suffered what appeared to be a panic attack. He was transferred to hospital. Later on 27 September 2008, he was arrested on suspicion of causing grievous bodily harm and taken back to the police station. He was interviewed between 6.34 p.m. and 7.47 p.m the same evening. For reasons that are not clear, he was told that he was being interviewed in connection with an offence of causing death by dangerous driving. Not surprisingly in the circumstances, the defendant became distressed during the interview and it had to be interrupted from time to time to enable him to compose himself.

[62]In that interview, the defendant described how the traffic lights were showing red and, as he was slowing down in obedience to them, the claimant walked into the middle of the road and pulled down his trousers, exposing his genitals. He said that the claimant was holding his penis and he was afraid that the claimant was going to urinate on his car. He said that he was not intimidated by the claimant but did not want him to urinate on his car. He said that his car was not stationary at that point but was travelling very slowly. He carried on driving forward. He told the police that, as his car got closer to the claimant, the claimant was moving (not walking but “shifting”, which I understood to mean “shuffling”, presumably because his trousers were round his ankles) towards the driver’s side of the car. The defendant said that all the claimant’s friends then “jumped in” round the car and were “smacking the car”, urinating on it and hurling abuse. He thought that, at one point, someone had opened the driver’s door although he was not sure whether that had been before or after the accident.

[63]The defendant said that, by that time, his car was stationary. He then saw a gap in the crowd around his car to his left, so he accelerated, “swerved away” from the people and drove towards the gap and through it. As he did so, he felt his car bump up and down as if it had gone over something. He initially thought that he had mounted the kerb but then realised from the reaction of the people round his car that he must have run over someone. The defendant said that he could not remember whether he had sounded his horn or revved his engine before moving forward. At the time of the interview, the police were investigating the possibility that the defendant might have deliberately driven at the claimant because of some private grudge or because he was angry at the claimant’s behaviour. It soon became clear that the claimant was a stranger to the defendant and the defendant was adamant that he had not knocked the claimant down in a deliberate attempt to injure him.

[64]The defendant described the claimant as being “off the car” and out of his sight by the time he drove forward. Later in the interview, he was again asked whether the claimant had disappeared from his view before the accident occurred. He responded: “…well ... he no longer had my attention because … the attention was to everyone else. So he might still have been in my view. I can’t remember seeing him in my view because my attention wasn’t at that stage … I was panicked and obviously I was everywhere, I was just looking at everyone… ”.

[65]It will be noted that whereas, in his earlier accounts, the defendant had described how an angry mob had surrounded his car after the accident, in this interview he suggested for the first time that this had happened before the accident and that it was whilst he was trying to get away from the hostile crowd around his car that he ran over the claimant. He told the police that, before the accident, he had been scared and afraid to get out of his car in case he was attacked. He said that he was not going to let people urinate on his car and was anxious to avoid that situation but had felt “helpless”. He was unable to give any reason why the claimant and his friends should have directed their attention to his car before the accident happened other than that it had been the closest vehicle to them at the time.

[66]The defendant went on to describe how he had come to a halt almost immediately, close to the accident site. He then saw people run towards his car, so he locked the doors. He said that the people were “smashing up the car”, so he drove off and stopped again on Halford Street.

[67]The defendant was interviewed by the police again on 8 January 2009. At the outset of the interview, the interviewing officer summarised the account of the accident that the defendant had given during his interview on 27 September 2008. The defendant told the police that the account he had given previously was true. By that time, the police had obtained statements from other witnesses who had given a rather different description of the events leading up to the accident. The police told the defendant that the other witnesses were saying that there had not been people surrounding his car before the claimant was injured. However, the defendant insisted that his previous description of events had been correct. He told the police that the last time he had seen the claimant was when he was moving towards the front offside of his car and in front of the offside headlight. The defendant said that he had then transferred his attention to what he described as “the other group” who were on the nearside of his car. When he looked back, the claimant had gone. It was then that he drove forward and towards the gap to his left.

[68]In essence, therefore, the defendant’s account to the police in January 2009 was the same as the account he had given at the interview in September 2008. The only significant difference was that, by the time of the second interview, the defendant did not seem to be maintaining his allegation that members of the hostile crowd had urinated on his car. That allegation was never repeated and, in oral evidence at the trial, the defendant said that, before January 2009, he had had time to think about the accident and to make sense of what had happened. It was during that process that he reached the conclusion that no one had urinated on his car.

[69]The Defence in these proceedings was filed in August 2011 and set out the defendant’s case at that time. It contained a statement that he believed the facts stated in it to be true and that he had authorised his solicitor to sign the Statement of Truth. The Defence contained the following averments:

“4.2 The Defendant approached and stopped at the lights situated just past the taxi rank which was on his offside, Market Place Approach being on his nearside. He stopped because the lights were at red; 4.3 The Claimant approached the road in front of the Defendant’s vehicle from the Defendant’s nearside. He then stopped in the road in front of the Defendant’s vehicle and dropped his trousers exposing his genitals to the Defendant and his passenger; 4.4 There were other persons in the vicinity who appeared to be with the Claimant, particularly to the Defendant’s nearside, who began to shout and gesticulate. The Claimant moved towards the offside of the Defendant’s vehicle, and some of the other persons moved towards or came closer to the vicinity of the nearside of the Defendant’s vehicle; 4.5 The Defendant and his passenger felt threatened and frightened and were extremely concerned as to what would happen next; 4.6 The Defendant then noticed that there was a clear path ahead in front of his vehicle. He could see no other person in his path, and so began to move off slowly and very carefully, pulling slightly to the left to be sure he was clear of any pedestrians on his right, and maintaining observation on the group which were by now in very close proximity on his right; 4.7 As the Defendant drove forwards he was aware of contact between his vehicle and some object, which he subsequently realised to have been the Claimant. He immediately stopped his vehicle, at this point his vehicle had moved forwards no more than a few feet and stopped shortly before or at the traffic lights on Horsefair Street.”

Thus, in August 2011, the defendant’s case was still that the accident had happened when he was seeking to escape the attentions of a hostile crowd which had gathered around his car. There was, however, no mention of anyone “smacking” his car, banging on it or making contact with it in any other way before the accident. The crowd’s actions were confined to shouting and gesticulating.

[70]The defendant’s witness statement for these proceedings was dated 11 October 2011. In it, he again described how the claimant was with a large group of friends who were surrounding his car, shouting and being rowdy. Once again, there was no suggestion that they had made contact with his car in any way before the accident. His statement continued:

“20. I saw that the claimant had moved to the right, towards the driver’s side headlight. I looked away for a split second at the crowd on my left as the car was still stationary, when I looked back he was no longer in sight. There was a clear gap in front of my car and so I moved forwards slowly, steering to the left as further in front of my car there were some other people. I believe that the car was in first gear when I moved away. 21. When I pulled away there was definitely a clear gap in front of my [car] and the claimant was not in my line of sight at all. I would not have moved the car if I believed that the claimant or anyone else were in my path. I did not run the claimant over deliberately. 22. As I moved away I felt a bump, as though my wheel had gone over something; initially thought that I had gone over the kerb.”

[71]In oral evidence, the defendant said that he did not actually remember bringing his car to a halt before the accident; he thought that he might have still been moving very slowly. He did not suggest in his oral evidence that there had been a hostile crowd of people around his car before the accident. When he was asked about this in cross-examination, he said that he could not remember what he had said to the police about this matter or why he had said it. He said that his thoughts about what had happened were different now from the account he had given to the police. He said that he was now not sure whether the banging on his car or the other hostile actions of the crowd had occurred before or after the claimant was injured. He said that, at the time he drove forward, he was in a situation that he did not want to be in because the claimant had just exposed himself to him and his companion. However, he did not suggest, as he had done previously, that he was frightened.

[72]In his oral evidence, the defendant described the claimant, who seemed to be intoxicated, shuffling across to a position near to the offside headlight of the defendant’s car. He said that there was a group of people on the left of his car and that he had shifted his attention from the claimant to them. He was unable to say what the group had done to attract his attention. He said that, when he looked back to the front of the car, the claimant had disappeared. The defendant then drove his car forward slowly, steering to the left because there were people on the right hand side of the road ahead. He felt the car “bridge”, i.e. rise and fall. He heard a commotion and realised that he had run over someone. He stopped his car and believed that he opened the door, intending to get out. However, there were people around the car and reaching in and he was frightened, so he drove off. He stopped again further up Halford Street, but people were still chasing his car and, at one point, a man slapped what the defendant thought was a mobile phone (in fact it was a warrant card belonging to an off duty police officer) on his windscreen. The defendant then drove off again to the public house a short distance away, where the police eventually came to meet him.

The evidence of Sital Odedra

[73]Sital Odedra is in her thirties and is employed as a store manager. She had been out for a drink with the defendant on the night of 26/27 September 2008. Her evidence was that she had drunk two vodkas (one of them possibly a double measure) but was quite sober. She gave an account of the accident to the police on the day of the accident after she had returned from accompanying the defendant to hospital.

[74]In her statement, Sital Odedra said that the defendant brought his car to a stop on Horsefair Street outside the NatWest Bank in obedience to the traffic lights, which were on red. The claimant walked in front of the car, pulled down his trousers and stood facing the defendant and herself. Sital Odedra was embarrassed and covered her face with her hands. She said that she was aware of people on both sides of the car, although she was not sure how close they had been. She did not suggest that the people had behaved in a threatening manner towards the defendant or herself or that they had interfered in any way with the defendant’s car.

[75]Sital Odedra went on to say that the traffic lights changed to green. She said:

“I do not know how or why but the male in front of our car disappeared out of sight to my right. [The defendant] turned the car to the left to avoid what was on his right, I assumed to get away from the male. We moved off really slowly and I felt something either had hit the car or we had hit something although I did not see anything. The male that had been in front of the car was nowhere to be seen. As soon as I felt this thing hit the car [the defendant] immediately stopped.”

As soon as I felt this thing hit the car [the defendant] immediately stopped.”

[76]In oral evidence, Sital Odedra said that, when she gave that statement, she had made an assumption that the defendant had steered to the left in order to avoid the claimant; she did not know this to be the case. She described how, after the accident, people came up to the car and a woman (this must have been Ruth Atterbury) was banging on the passenger window. She said that, at that stage, she was very frightened for herself and the defendant. She described how, because of their concerns, she and the defendant had to leave the accident scene.

[77]In oral evidence, Sital Odedra said that, as the defendant’s car came along Horsefair Street, she had been aware of one group of people on the left of the road and another group on the right. There were other people scattered about. Many of them had obviously been drinking. She recalled that, at the time the claimant came into the road, the defendant’s car was stationary and the traffic lights were showing red. She said that the claimant was smiling and she suggested that his companions were laughing at what he was doing and urging him on. She said that she did not feel threatened or scared, although she was rather uncomfortable about the claimant’s behaviour. It did not occur to her that he might urinate on the defendant’s car and she did not suggest that anyone else had done so.

[78]Sital Odedra could not recall any banging on the car at that time. She said that the group of people on the left were not close to the car. The group on the right were closer, but she did not suggest that they posed any threat to her or the defendant. She said that she was aware of the car moving off to the left at what she considered to be a normal speed. At that stage, she had removed her hands from her face and was looking straight forward. She said that she had not seen where the claimant went, but she was sure that he had not been in her sight at the time the car moved off. She was adamant that, if he had been in front of the car, she would have seen him. She felt the car “bump into something”, then rise and fall. The defendant then brought the car to a stop. She assumed from the reaction of the people around that they were angry because the defendant’s car had run over the claimant.

THE EXPERT EVIDENCE

[79]As well as the lay evidence, there was evidence from six expert witnesses.

The head injuries

[80]Professor Guy Rutty, forensic pathologist (instructed on behalf of the claimant), and Dr Paul Lewis, consultant neuropathologist and neurologist (instructed on behalf of the defendant), agreed that the claimant’s head injuries, which included a significant injury to the back of his head, had been caused when he fell backwards from a standing position to the ground, striking the back of his head on the kerb. They further agreed that such an injury could have been caused either by the claimant losing his balance and collapsing backwards, or by him being knocked to the ground by a motor vehicle. They said that the injury was equally consistent with either of these explanations.

The knee injury

[81]In his original Report, Professor Rutty suggested that the nature of the injury to the claimant’s right knee might be helpful in determining which of the two explanations was the more likely. He considered that the available evidence suggested that it was more probable that his fall had been caused by the defendant’s car striking him. Dr Lewis disagreed with Professor Rutty’s view, whilst acknowledging that, like Professor Rutty, he was not an expert in the field of orthopaedics. As a result, two further experts were instructed to report on the knee injury. The claimant instructed Mr Sanjiv Jari, consultant trauma and orthopaedic surgeon, and Professor Robert Grimer, consultant orthopaedic surgeon, was instructed on behalf of the defendant. In their Joint Statement, Professor Rutty and Dr Lewis indicated that, so far as the knee injury was concerned, they deferred to the specialist knowledge of the orthopaedic experts. They were not therefore required to give oral evidence. Both the orthopaedic experts provided Reports and a Joint Statement and, since their evidence was not agreed, they gave oral evidence.

[82]The orthopaedic experts were in agreement that the injury to the claimant’s right knee consisted of a tearing/rupture of the postero-lateral corner, the anterior cruciate ligament (ACL) and the lateral knee structures. They also agreed that such an injury must have resulted from a force applied to the inner aspect of the knee, in a direction either laterally to the outside of the knee or at an angle to the outside and back of the knee, more likely with the knee straight. They also agreed that, in addition to the force being applied, some displacement of the knee, i.e. bending of the leg at the knee in an abnormal direction (to open up the outer side of the knee) would have been necessary for the injury to have occurred.

[83]Mr Jari and Professor Grimer also agreed that, if the force had been applied before the claimant fell and had caused his fall, the inner aspect of his right knee/leg must have been facing the front of the car as he was struck. The injury would also have been dependent on the direction of the resultant vector to the knee from the car at the time of potential impact. They agreed that, if the force had been applied after the claimant fell (i.e. if the knee injury had occurred when he was on the ground), his right foot must have been turned outwards at the time the car drove over him, so that the inner aspect of his right leg was facing upwards.

[84]Because of the severity of the claimant’s head injuries, the attention of the doctors treating him was at first directed primarily at those injuries, rather than at the condition of his knee. Thus, the early medical records contain little information about the knee injury. There is, however, a diagram in the hospital records which was prepared shortly after the claimant’s admission to hospital and illustrated the sites of his injuries. That diagram shows an area of hatching running longitudinally down his right thigh. An arrow pointing at the hatching is labelled “Bruising and tyre marks to right thigh”. There is a squiggle on the left thigh with a line (which could be the tail of an arrow) leading to it, but with no caption. It was suggested that this squiggle might indicate that there had also been tyre marks on the claimant’s left thigh. However, the squiggle is entirely different from the hatched area marked on the right leg and there is no indication that it is intended to represent tyre marks. It is to be noted that the claimant’s father told Mr Jari that, following the accident, the claimant had a tyre mark along the inner aspect of the right leg and thigh towards the abdomen. That would tend to confirm that there was a tyre mark on only one leg and that it was a longitudinal mark running along more or less the whole length of the leg

[85]Mr Jari’s evidence was that the most likely cause of the claimant’s knee injury was the application of force by the defendant’s car striking the inner aspect of his knee whilst his right foot was on the floor and weight-bearing. That impact would have had the effect of pushing the knee outwards and shifting the claimant’s centre of gravity towards his right leg. The knee would have rotated and twisted, tearing the lateral structures of the knee and the ACL and causing the claimant’s body to rotate and fall to the ground. Mr Jari said that it would not have been necessary for the car to have been travelling fast in order to cause the injury.

[86]At page 7 of his Report (TB3/242), Professor Grimer included a diagram, setting out the position in which he considered the claimant’s feet must have been in order for his injury to have been caused by an impact with the defendant’s car. The diagram shows the claimant’s right foot placed in front of the offside front corner of the car, at an angle of about 45 degrees to the car, so that the inside of his right knee is facing towards the front of the car. The claimant’s left foot is to the offside of the car, facing towards the front and parallel to the side of the car. The position illustrated in the diagram was described during the trial as “straddling” the front offside corner of the car.

[87]Mr Jari did not accept that the position illustrated in the diagram represented the only position in which the claimant could have been struck by the defendant’s car in order to suffer his knee injury. He suggested that, if the claimant had been standing in front of the car with both feet facing it and the car had been steered to its left, it would have been possible for the car to have struck the inner aspect of the claimant’s right knee as it turned, thus causing the knee injury. He said that, if the impact had happened in that way, it would have caused some rotation of the claimant’s body which could caused him to fall backwards and strike his head on the kerb.

[88]Professor Grimer’s view was that, whilst there was a theoretical possibility that the claimant’s injury could have been caused by a direct blow from the defendant’s car whilst he was standing in front of it, this was unlikely. He said that it was far more common for a pedestrian to suffer a blow to the outside of the knee, which would not have produced the injury sustained by the claimant. Professor Grimer said that, in order for the inner aspect of the claimant’s knee to have been struck by the defendant’s car, the claimant would have had to be standing in a most unusual position, as illustrated in his diagram.

[89]Professor Grimer said that, if the defendant’s car had struck the claimant’s knee whilst travelling at a significant speed, he would have expected the claimant to have suffered injury to the tibial plateau of the right leg. If the impact had occurred at a slower speed, he would have expected the claimant’s leg to have been pushed away without suffering any serious injury at all. In cross-examination, Mr Jari was asked about the absence of any injury to the tibial plateau of the claimant’s right leg. He suggested that there may have been injury at that site which had gone undetected because the leg had not been scanned and the claimant had not been in a fit state to report pain at the site. He said that, in any event, if the claimant had been near to the front of the car, the impact was likely to have taken the form of a push, rather than a blow, so that it was quite possible that no injury to the tibial plateau would have occurred.

[90]Professor Grimer’s opinion was that it was far more likely that the claimant’s injury was caused when the defendant’s car struck him as he was lying in the road. He gave a graphic demonstration (by lying on the floor himself) in order to show that, as one of the wheels of the car ran up the claimant’s right leg, the leg would have been forced sideways, causing the knee to open up in a way that could have caused the injury. He considered that this mechanism of injury was wholly consistent with the tyre marks illustrated on the diagram in the medical records and also with the description of the tyre marks given by the claimant’s father. Mr Jari accepted in cross-examination that, if one wheel of the defendant’s car had passed longitudinally along the claimant’s right leg, that would have had the effect of opening up the knee. However, he did not consider that it would have opened up the knee sufficiently to cause the injury suffered by the claimant.

The marks on the bonnet of the defendant’s car

[91]Both parties instructed road traffic incident reconstruction experts. Dr Andrew Ninham was instructed on behalf of the claimant and Mr John Rusted for the defendant. Each expert produced a Report and took part in joint discussions which resulted in the preparation of a Joint Statement. They both gave oral evidence.

[92]In their Joint Statement, the two experts were largely in agreement. In particular they agreed that the claimant was brought to the ground in front of the defendant’s car either by being struck by the car moving forward or by falling to the ground independent of any movement by the car.

[93]The experts examined a number of marks which were visible on photographs of the defendant’s car taken by the police after the accident. They agreed that the evidence indicated that several people had made contact with the car during the incident. Forensic examination by the police had failed to attribute any of the marks to specific individuals and the experts agreed that it was not possible to be certain how each and every mark had been caused.

[94]The main dispute between the two experts related to marks on the bonnet of the defendant’s car, above the offside headlight. These marks, which are marked (a) on photograph 9 at TB4/25 and are shown close up in photograph 10 on the same page, consisted of (i) a linear mark caused by fabric transfer running from the edge of the lip of the bonnet at the front of the car towards the windscreen; (ii) a linear scratch to the right of the fabric transfer mark (as viewed in the photographs) and running parallel to it; and (iii) two areas of faint scuffing, one to the left of the fabric transfer mark (as viewed in the photographs) and the other to the right of the linear scratch. The total width of the area covered by the various marks was six inches. In their Joint Statement, the experts agreed that the relevant marks had been made as a result of a relatively forceful contact.

[95]The fabric transfer mark and the linear scratch were deeper at the front edge of the bonnet and petered out as the marks got nearer the car windscreen. That caused Dr Ninham to conclude that the force which had caused the marks had been applied from the front of the bonnet towards the windscreen, rather than in the opposite direction. Mr Rusted took the opposite view in his initial Report and also in the joint discussions between the two experts. In the Joint Statement, Mr Rusted’s view was recorded as being that “Taken as a whole, the marking appears to travel from rear to front”.

[96]It was only when Mr Rusted gave his oral evidence that it became clear that his view had changed and that he now believed, like Dr Ninham, that the marks ran from the front of the bonnet towards the windscreen. He explained that he had changed his mind when he had examined a set of digital images of the police photographs which were clearer than the set that he had seen previously. However, those images had been provided to Mr Rusted well before the joint discussions and it is not clear why he did not tell Dr Ninham at those discussions that he had changed his mind. If he had re-examined the images subsequently and realised that his initial opinion was flawed, one would have expected him to inform the parties and the Court of this fact. As it is, neither the claimant’s advisers nor the Court were informed of Mr Rusted’s change of view until he gave oral evidence about the matter. This was extremely unsatisfactory and Mr Rusted offered no explanation as to why the situation had occurred.

[97]Dr Ninham’s evidence was that the severity of the marks, together with their alignment and their position on the car bonnet, made it probable that they had been caused by a person who was standing in front of the car whilst the car was moving forward. It is evident from the CCTV footage that, at the time of the accident, the claimant was wearing a watch on his right wrist. The watch, which is illustrated in the photographs at TB2/83-88 and which I was able to examine for myself, has a broad leather strap and is fastened by a metal buckle. Dr Ninham’s view was that the fabric transfer mark and the linear scratch were probably caused by the claimant putting his arms out in front of him in a protective gesture as the car moved forward towards him. He suggested that the edge of the leather strap could have made the fabric transfer mark and the buckle could have caused the linear scratch, as the claimant’s hands and arms slid up and over the bonnet of the defendant’s car. He suggested that the fainter scuff marks could have been caused by the claimant’s clothing, possibly his cuffs.

[98]Dr Ninham was asked about the absence of any scuff marks on the front bumper of the car. He said that, since the claimant’s legs were bare at the time, he would not expect there to be any scuffing caused by clothing. In any event, in order to for scuffing to occur, a degree of relative motion between the claimant’s legs and the bumper would have been required. He said that, in the circumstances of this accident, little relative motion would have taken place.

[99]Mr Rusted did not consider that it was plausible that the marks on the bonnet of the defendant’s car had been caused by the claimant as the car moved forward towards him. His view was that the hard leather of which the claimant’s watch strap was made would not have given up sufficient material to cause the fabric transfer mark. Nor did he consider that the metal of the strap buckle was sharp enough to have caused the linear scratch. He also pointed out that the area covered by the marks was about six inches wide and could not be accounted for by the claimant’s watch alone. He doubted whether contact with the claimant’s clothing could have caused the scuffing to the left of the fabric transfer mark and the right of the linear scratch. The CCTV footage showed that, at the time of the accident, the claimant was wearing a long-sleeved T-shirt. Mr Rusted said that, if the claimant had been wearing his sleeves down, it might have been possible for them to cause the scuffing. However, in that event, his watch would have been covered by his right sleeve and it could not therefore have made the fabric transfer mark and the linear scratch. If, on the other hand, his sleeves had been rolled up, his watch would have been exposed but his sleeves could not have caused the scuffing. Mr Rusted acknowledged that, if the claimant had had both hands in front of him when the defendant’s car moved forward, that could have accounted for the width of the area covered by the marks. However, he considered it unlikely that the claimant could have caused the marks since he had difficulty in envisaging how the claimant’s wrist could have been positioned in order to make them.

[100]Mr Rusted suggested that the marks might have been caused by the other people who gathered round the defendant’s car after the accident occurred. He has experience of carrying out vehicle examinations for the police and he also pointed out that, although the vehicle was designated for ‘forensic recovery’ (the object being to preserve any forensic evidence that might have been present), the possibility that the car could have been damaged during or after recovery could not be excluded.

[101]As to the issue of whether the claimant’s knee injury could have been caused by the car striking him whilst he was standing, Mr Rusted considered that, if the car had moved forward and struck the claimant, the impact is likely to have occurred when the base of the offside headlight came into contact with the higher part of the claimant’s lower leg, i.e. below the knee. DISCUSSION AND CONCLUSIONS Was the claimant knocked to the ground by the defendant’s car or did he just lose his balance and fall?

DISCUSSION AND CONCLUSIONS

[102]The first issue that I must decide is whether the claimant was knocked to the ground by the defendant’s car or just lost his balance and fell without any contact with the car.

[103]The claimant submitted that, stripped to its essentials, the evidence of Brendan Cox, Liam Neale and Ruth Atterbury was that the claimant had fallen to the ground after having been struck by the defendant’s car. Their evidence was supported by the accounts of the accident given by the defendant immediately after it occurred and, to some extent at least, by the evidence of Sital Odedra.

[104]The defendant’s case was that, whilst the claimant’s witnesses (in particular Brendan Cox) might genuinely believe that the claimant had fallen as a result of being struck by the defendant’s car, this belief arose from assumptions which they had made about how the accident had occurred, rather than what they had actually seen for themselves. Mr Maskrey pointed out that the whole incident had happened very quickly and that two of the witnesses who gave evidence on behalf of the claimant about the circumstances of the accident (Liam Neale and Ruth Atterbury) were probably affected by drink, rendering their memory of events unreliable. He gave examples of the way in which the accounts of the witnesses had varied over time and emphasised the danger of assuming that witnesses who appeared honest and straightforward were necessarily giving an accurate and reliable account of events.

[105]I recognise that the danger identified by Mr Maskrey is a real one in this case. This was a shocking incident for all who witnessed it. What appeared to the claimant’s friends and other onlookers to be an amusing prank by the claimant unexpectedly turned into tragedy. Since the incident, those who were involved in it must have gone over the events many times in their own minds and in discussion with others. The defendant’s evidence was that, since the accident, he has had time to think about the circumstances in more detail, and to piece them all together in his mind. That has caused him to conclude that the account of the accident he first gave was inaccurate in some respects. I am sure that the other witnesses have gone through a similar process. The circumstances leading to the claimant’s injuries were the subject of evidence at the Magistrates Court hearing and at least some of the witnesses from whom I received evidence will have heard the evidence given by other witnesses on that occasion. I am satisfied that these circumstances have resulted in a certain amount of reconstruction of events and an overlay of ‘memories’ on the part of the witnesses, with the result that they now believe that certain things must have occurred which they did not actually observe at the time.

[106]It seems to me that, in order to determine what really happened at the time of the claimant’s accident, I must concentrate in particular on what is likely to be the most accurate evidence, i.e. the accounts given by the various witnesses soon after the accident, before any opportunity for considering what might have occurred (rather that what actually happened or was actually observed) arose.

[107]Brendan Cox was the only independent witness to the accident. He had drunk a modest amount of alcohol that evening and, from his position in the area of Café Nero, he would have had a good view of the defendant’s car in Horsefair Street and of the claimant in the road in front of the car. He impressed me as an entirely honest witness who was doing his best to give an accurate account of what had happened.

[108]Brendan Cox is recorded as having told the police shortly after the accident that the defendant had driven off, hitting the claimant and running him over. As Mr Maskrey pointed out, the note of P.C. Burn’s conversation with Brendan Cox contains some inaccuracies. For example, the claimant was not “pulling Moonies” as recorded in the note. Nevertheless, it is unlikely in my view that P.C. Burn would have wrongly recorded Brendan Cox’s description of the accident itself. There is an obvious difference between, on the one hand, a witness saying that a car hit the claimant, then ran over him and, on the other hand, describing how the claimant fell to the ground of his own accord and was then run over. It is quite clear that, from an early stage, the police were investigating the case on the basis that the defendant had driven into the claimant and knocked him down before running over him. Furthermore, if Brendan Cox had in fact seen the claimant lose his balance and fall to the ground before being run over, there would have been no reason why he should not have given that account to P.C. Burn.

[109]A few days later, Brendan Cox said in his police statement that, as the claimant was starting to move towards the offside front corner of the defendant’s car, the car “shot forward”, the claimant fell backwards, hit the ground and lay flat out and the car then drove straight over him. It is true that, in that statement, Brendan Cox did not say that he had actually seen the defendant’s car strike the claimant. However, the order in which he described the events occurring – “The car shot forward … The young man fell backwards … The silver car drove over him” – makes it clear that that is what he was in effect describing.

[110]There is no doubt that, as Mr Maskrey suggested, Brendan Cox’s evidence has ‘developed’ to some extent over the period of four years or so that has elapsed since the accident. For example, in his police statement, Brendan Cox said that the claimant appeared to be “starting to move towards” the front offside corner of the defendant’s car whereas, at the Magistrates Court hearing, the note of his evidence records that he said that the claimant was “on the corner” when the car started to move. In oral evidence at trial, he described the claimant as “straddling” the corner of the car. Another example cited by Mr Maskrey was what he said was Brendan Cox’s inconsistency as to which part of the claimant’s body the defendant’s car struck first. He also submitted that Brendan Cox’s inability now to recall whether or not the claimant’s trousers were round his ankles whilst he was in the road demonstrated that his recollection of events was significant impaired. There were other respects in which Brendan Cox’s evidence was clearly wrong, for example his assertion that the defendant’s car had run over both the claimant’s legs and his upper body.

[111]It is also the case that Brendan Cox’s evidence conflicted in some respects with that of other witnesses. For example, he was the only witness who spoke of the claimant “drumming” on the bonnet of the defendant’s car. He was also the only witness to suggest that the defendant’s car had “shot forward” and driven away at speed.

[112]The fact that Brendan Cox’s evidence has ‘developed’ over time is not surprising, given the time that has elapsed since the incident and the inevitable effect of going over in his mind the events that occurred. It is understandable for example that, when a witness has become aware that a person sustained a serious injury to his knee, he might come to believe that he ‘remembers’ that the car struck the person in the knee area. I think that is what has happened in this case. I accept also that Brendan Cox’s memory of the incident has faded over time. For example, it is plain from P.C. Burn’s note that he was aware on the night of the accident that the claimant had been naked below the waist whilst he was standing in the road, although he cannot remember that now. Those considerations do not, however, affect the essential message contained in the first account of events given by Brendan Cox to the police a short time after the accident occurred. I regard that account as very significant in that it describes the defendant’s car striking the claimant, then running over him.

[113]Liam Neale and Ruth Atterbury were friends of the claimant and therefore not independent. Moreover, their perception and recollection of events must inevitably have been affected by the alcohol they had drunk that evening. They did not give statements to the police until, respectively, three and eight days after the accident by which time it is likely that their recollections and accounts of the accident were to some extent affected by discussing the incident between themselves and with others. They may have been motivated by anger at the callous way in which they believed the defendant had behaved and at the severity of the claimant’s injuries. They were unwilling to concede the extent to which the claimant had been affected by drink at the time of the accident and Liam Neale, together with his brother, gave what I am satisfied was an exaggerated account of the appearance of the claimant’s legs after the accident. For all those reasons, I approach their evidence with considerable caution.

[114]Both Liam Neale and Ruth Atterbury had an entirely different view of the accident from that of Brendan Cox, since they were standing on the nearside of the defendant’s car. They were not known to Brendan Cox. It is therefore significant that, in his police statement made three days after the accident, Liam Neale gave a description of the claimant bending forward with his hands on the bonnet of the defendant’s car prior to the accident. That description accorded closely with the claimant’s position as described by Brendan Cox to P.C. Burn just after the accident. Liam Neale then related how the claimant was struck as the defendant’s car drove forward, throwing the claimant into the air to its offside and out of his view.

[115]Ruth Atterbury told the police that the claimant was standing directly in front of the driver’s position when the defendant drove at him, striking him and causing him to fall to the driver’s side of the car out of her view. Essentially, therefore, this account was consistent with those of Brendan Cox and Liam Neale, although Ruth Atterbury did not mention the claimant bending forward or having his hands on the car bonnet.

[116]There were differences between the accounts given by Brendan Cox on the one hand and Liam Neale and Ruth Atterbury on the other, notably as to the precise position of the claimant before the accident and whether he was “drumming” on the car bonnet. There were differences also between Liam Neale and Ruth Atterbury as to whether the claimant had fallen forwards or backwards after being struck by the defendant’s car. Nevertheless, the evidence of the two witnesses provides some support for the account given by Brendan Cox that the claimant fell to the ground after being struck by the defendant’s car.

[117]I come now to the evidence of the defendant. He gave two virtually contemporaneous accounts of the circumstances of the accident, one during the 999 call and the other to P.C. Richardson half an hour or so afterwards.

[118]In the 999 call, the defendant described how he tried to “[s?]kip past” the claimant who “went under” his car and, later in the call, how he “[tried to go?] past” the claimant, who then kicked his car and, as he went to do so, “just drops”. The defendant made no mention of the claimant disappearing from his view before he attempted to kick the car and, indeed, it is implicit from what he said that the claimant must have been standing at the time he was said to have attempted to kick the defendant’s car. It was after the “kick” that the claimant was said to have “dropped”. The clear impression given by the defendant’s words was that he had been aware of the claimant’s presence in the road and was trying to pass him when the accident occurred. The defendant later acknowledged that the claimant had not kicked his car or attempted to do so. He suggested that further consideration had caused him to ‘remember’ that this did not happen.

[119]The first part of the conversation subsequently noted by P.C. Richardson was consistent with what the defendant had said during the 999 call. She recorded that “the [defendant] moved around the [claimant] so [as] to go round him”. P.C. Richardson then went on to record the defendant as saying that “he then hit the [claimant]”. The word “hit” is somewhat ambiguous. It could mean that the defendant’s car struck the claimant as he was standing in front of it or that it struck the claimant when he was already on the ground. Bearing in mind the potential ambiguity and the fact that P.C. Richardson was not purporting to record the defendant’s precise words, I do not think it would be right to draw any conclusions from her use of the word “hit”. What is significant, however, is that her note makes no reference to the defendant saying that the claimant had disappeared from view before he moved off. If the defendant had told her that, I would have expected her to have recorded the fact.

[120]In the defendant’s police interview later on the day of the accident, he said for the first time that his car had been surrounded by a hostile crowd and that he had run over the claimant whilst trying to escape through a gap at a time when he was scared and feeling “helpless”. It is quite clear from all the other evidence that this account was wholly false and that the defendant encountered hostility from people in the vicinity of Horsefair Street only after the claimant had been injured.

[121]Even then, the defendant exaggerated what had happened. There was never a time when, as he alleged to the police, a crowd of people were urinating on his car (a fact which he has subsequently acknowledged) and, whilst after the accident there were people shouting at him and trying to get him to stop, his description of a hostile crowd gratuitously “hurling abuse” and “smacking the car” was highly coloured. In the course of the police interview, the defendant claimed to be completely unaware of the reason why his car was being attacked. This was not surprising since he was telling the police that the car had been attacked before the accident occurred, at a time when there was no reason at all for him to be targeted. In reality, however, he knew precisely why he had been the subject of hostility since, only a few hours before, he had told the 999 operator that the claimant’s friends had started kicking his car after the accident , “’cause I’d just run their mate over”. During the 999 call, he had of course made no mention of any hostility being directed at him before the accident happened.

[122]I find it difficult to believe that, only hours after the accident, the defendant had become confused about the timing of the hostility directed towards him. It seems to me that he seized on the events which had occurred after the accident as a means of explaining and excusing his otherwise inexplicable failure to see and avoid the claimant who had been standing in the road. In that first interview, he described how, as his car got nearer to the claimant, the claimant was moving towards the front offside of his car. He was asked whether the claimant had disappeared from his view and he responded that, at the time he drove forward, he was no longer paying attention to the claimant but he was watching the hostile crowd and panicking because of what they were doing. That was plainly untrue since there was no hostile crowd around his car at the time.

[123]The defendant persisted in his account of the hostile crowd in the January 2009 police interview despite the fact that it was clearly at variance with the evidence of other witnesses. On that occasion, he told the police that he had seen the claimant moving towards the front offside of his car and had then transferred his attention to the group on his nearside. When he looked back to where the claimant had been, he had gone. From August 2011, when the Defence was filed, the defendant’s description of the activities of the hostile crowd before the accident became gradually less florid until, by the time he came to give oral evidence, his position was that he was now uncertain whether there had been any hostility towards him before the accident. It may be that, given the time that has elapsed, he is now genuinely uncertain about when the hostility began.

[124]Given the fact that the defendant plainly gave an untruthful account of events to the police at the time of his first interview and persisted in that account at least up to the time of the trial, it does not seem to me that any reliance can be placed on his descriptions of the accident other than those to the 999 operator and P.C. Richardson. The clear implication of those accounts was that the defendant had tried to pass the claimant whilst he was still standing in the road and had struck him.

[125]The defendant’s passenger, Sital Odedra, was an impressive witness who appeared to be doing her best to give an accurate account of what had occurred. She did not give an account to the police immediately after the accident. The first time she described the accident was on the evening of 27 September 2008. After describing how the claimant had been standing in the road exposing his genitals and she had covered her eyes, she said that the claimant had disappeared out of sight to her right. She then described how the defendant “turned the car to the left to avoid what was on his right. I assumed to get away from the [claimant]”. That description (of the defendant steering to his left to avoid the claimant) corresponded to a significant extent with the account first given by the defendant. She made no mention of any hostile crowd being around the car before the claimant sustained his injury.

[126]There was no evidence from any witness who had seen the claimant fall before coming into contact with the defendant’s car. The evidence was that there were people on the pavement to the offside of the defendant’s car. If the claimant had lost his balance and fallen before the car moved, it is surprising that no one came forward to report that. The only suggestion that the claimant might have lost his balance at one point came from Liam Neale, who said in his police statement that, just before the accident, the claimant had “either through a loss of balance or deliberate act, bent forward and placed his outstretched hands on the bonnet of the car”. In oral evidence, Liam Neale said that he did not believe that the claimant had lost his balance and did not know why he had told the police that he might have done so. It was suggested on behalf of the defendant that Liam Neale had realised that his evidence about the claimant possibly having lost his balance might be unhelpful to the claimant and that he had therefore changed his account. However, it is clear that, in his police statement, Liam Neale was not suggesting that the claimant had fallen to the ground as a result of his loss of balance since his statement went on to describe how it was after the claimant had placed his hands on the bonnet of the defendant’s car that the car had moved forward and collided with him.

[127]Shortly before the claimant fell to the ground – however that was caused – he was in front of the defendant’s car and within his view. If the claimant had lost his balance and fallen, I would have expected the defendant to see that happen. It would not be surprising if Sital Odedra had not done so. There was a period when she had her eyes covered and he could have fallen during that period. In any event, she may not have been looking at him. She was not driving the car and did not have the same obligation as the defendant to keep a lookout.

[128]The suggestion that the claimant lost his balance and fell to the ground before the defendant’s car made contact with him is inherently implausible, particularly since his fall was not witnessed by the defendant, by Brendan Cox or by the other witnesses. If the fall did occur, it must also have happened without the pedestrians on the defendant’s right noticing or reacting in any way so as to attract the defendant’s attention before he drove off.

[129]Taking all these matters into account, I am satisfied that the claimant fell to the ground as a result of being struck by the defendant’s car.

Findings of fact as to the circumstances of the accident

[130]I am satisfied also that, before the claimant was injured, there was no crowd around the defendant’s car, let alone a hostile crowd. The claimant’s four companions were several metres away on the paved area to the defendant’s left. There were people on the pavement to the defendant’s offside but their attention was not directed towards the defendant’s car. I find that the only person in the road near to the defendant’s car was the claimant. He was not acting in a hostile or threatening manner towards the defendant and his passenger (Sital Odedra described him as smiling) and, whilst they were uncomfortable about what the claimant was doing, they were not scared or intimidated by him.

[131]I find that the accident happened whilst the claimant was still standing in front of the defendant’s car, having moved across the front of the car from its nearside to a point near the offside corner. He was moving towards the pavement adjacent to the NatWest Bank but his progress must necessarily have been slow because of his general unsteadiness as a result of the effects of the alcohol he had taken and the fact that his trousers were round his ankles. He was facing the front of the defendant’s car and moving crablike to his left.

[132]I find that the traffic lights had changed to green and the defendant was anxious to move forward before they changed back to red. He may also have been concerned, as he claimed, that the claimant might urinate on his car and may have wanted to get on his way for that reason. Whatever his precise reasons, he looked for a way to pass the claimant and believed that he could get round him by driving slightly to his left. That would accord with what the defendant said to the 999 operator and with the note made by P.C. Richardson. I am satisfied that, at the time the defendant drove off, the claimant was in the road in front of his car in the area of the offside headlight. I consider it probable that, because of the slow progress being made by 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. He set off to the left, striking the claimant as he did so. Initially, he did not know what he had done. I find that the ‘kick’ about which he told the 999 operator was probably the sound of his car striking the claimant which at the time he misinterpreted as the claimant kicking his car. I do not find that the defendant drove off at an abnormally fast speed but, after hearing the ‘kick’, he must have continued to move forward with sufficient speed to run over the claimant’s right leg.

[133]In reaching these conclusions about what happened, I do not overlook the evidence of Sital Odedra to the effect that the claimant was not within her view at the time when the defendant drove forward. I am sure that she genuinely believes that was the case. However, she had her eyes covered for some time and it may be that, contrary to her belief now, the defendant embarked upon his manoeuvre whilst her eyes were still covered. Even if she had uncovered her eyes by that time, she may, whether deliberately or not, have been averting her gaze from where the claimant was standing. She may have been looking straight forward, in which case she would not necessarily have been aware of the claimant near to the front offside headlight. If she had really been confident that the claimant was well clear of the defendant’s car before it moved off, it is difficult to see why she would have assumed at the time that the defendant had turned his car to the left in order to avoid the claimant.

[134]I consider it unlikely that the injury to the claimant’s right knee was caused by the car striking its inner aspect. I find it difficult to see how, with his trousers round his ankles and the restricted movement available to him as a result, he could have got his legs into a position in which the inner aspect of his knee was in the path of the defendant’s car whilst his left leg was clear of it. There is doubt in my mind also as to whether the bumper of the defendant’s car would have been high enough to make contact with the claimant’s knee and whether, if it did, it is likely that the claimant would have escaped without an injury to the tibial plateau of his right leg. I find that it is probable that the knee injury was caused when the defendant’s car ran over the claimant’s right leg, as demonstrated by Professor Grimer. I am satisfied from that demonstration that it would have been quite possible for the injury to have been caused in that way. The fact that the claimant’s injury was sustained whilst he was on the ground does not affect my finding that the car struck the claimant whilst he was standing.

[135]I have already said that I find that, at the time of the accident, the claimant was in the area of the offside headlight of the defendant’s car, moving towards his left. It may be that, as he moved across the car, he had been placing his hands flat on it or “drumming” on it, as described by Brendan Cox. I am uncertain about that since none of the other witnesses, including the defendant and Sital Odedra, recalled it happening. Whatever the truth of that, however, I am satisfied that, as the defendant’s car began to move towards him, the claimant put his hands out towards the car to protect himself and that, as the car moved nearer, his hands and arms rode up across the bonnet towards the windscreen, causing the marks visible on the police photographs. The marks were unusual in nature and suggested to Dr Ninham that they had been made by someone standing in front of the defendant’s car whilst it was moving forward. I found the evidence of Dr Ninham on this point far more persuasive than that of Mr Rusted and I am satisfied that Dr Ninham is correct in his view that the marks can be accounted for by contact with the claimant’s watch and clothing. There was no evidence of anyone else having stood in the area where the marks were situated during the remainder of the incident and I regard it as highly unlikely that the marks were caused by such a person or during the forensic recovery of the car.

[136]There was some discussion at trial about the direction in which the claimant would have fallen if his hands had ridden up the car bonnet and made the marks previously discussed. It was suggested on behalf of the defendant that, in that event, it is probable that he would have been thrown up and over the car bonnet and would have landed in a position in which it would have been impossible for the car to run over his leg. I am not persuaded by that suggestion. Given the fact that the car may have been turning slightly at the time of the accident and that the claimant’s balance would have been affected by his general unsteadiness and the limitation of movement caused by the position of his trousers, it seems to me difficult to determine precisely how he would have fallen. The impact occurred at a slow speed I consider it quite feasible that, as Dr Ninham said, the claimant could have been pushed over backwards, then sideways over the curved corner of the car into a position where it was possible for one of the offside wheels of the car to run over him. Did the defendant’s car strike the claimant as a result of an intentional act by the defendant?

[137]I do not regard it as probable that the defendant deliberately drove at the claimant or that he drove forward, reckless as to whether or not he might strike the claimant. He did not give me the impression of being the type of person to act in that way and he was plainly shocked and appalled when the police suggested that he had deliberately driven at the claimant. If he had driven at the claimant deliberately, it seems unlikely that he would have stopped immediately after the accident. Moreover, if the defendant had acted in that way through anger or frustration, I would have expected Sital Odedra to have said so. She did not strike me as the sort of person who would seek to cover up what would have been a most dangerous and callous act.

[138]Brendan Cox and the other witnesses would not have been aware that the defendant was seeking to pass the claimant and had for some reason misjudged his manoeuvre. All they would have seen was the car moving forward whilst the claimant was close to it and the claimant falling to the ground. It is perhaps not surprising that they should have been convinced that the defendant’s action had been deliberate.

Is primary liability established?

[139]Mr Maskrey argued that, even if the defendant’s car struck the claimant whilst he was standing in the road, primary liability was not necessarily established. He submitted that, because of the claimant’s behaviour, the defendant faced driving conditions which were far from ordinary. He suggested that it would be wrong to impose on the defendant a duty to drive as if there had been nothing abnormal about the circumstances. It had, he contended, been entirely reasonable in the circumstances for the defendant to seek to extricate himself from the situation and, if he had misjudged the claimant’s position and struck him a glancing blow, he was not necessarily guilty of negligence.

[140]Mr Maskrey relied on Lee North v TNT Express (UK) Ltd

[2001] EWCA Civ 853

. In that case, the claimant, who was drunk and a member of a group of people in a similar condition, asked the defendant, a lorry driver, for a lift. When the defendant refused, the claimant climbed onto the front bumper of the defendant’s lorry, holding on by the windscreen wipers, rather than by an adjacent handle. The defendant twice asked the claimant to move and, when the claimant did not, the defendant drove off very slowly, intending to find a quiet spot away from the claimant’s companions where he could persuade the claimant to get off the lorry. After the lorry had travelled about 100 metres, one of the windscreen wipers became detached, the claimant fell off and, although the defendant braked immediately, the lorry struck the claimant, causing serious internal injuries.

[141]The trial judge found that there had been “no pressing need” for the defendant to take such a potentially dangerous step as to drive off with the claimant standing on the front bumper of the lorry. He concluded that, in doing so, the defendant had failed to exercise reasonable care. He found that the defendant was liable to the extent of 25%, the claimant’s contributory negligence being assessed at 75%.

[142]The Court of Appeal disagreed with the judge’s conclusion and found that there had been no breach of duty on the part of the defendant. Giving the judgment of the Court, Hale LJ (as she then was) said:

“15. It is interesting that in this case, when discussing contributory negligence, the judge remarked that it was extraordinary that the claimant did not get off the lorry the moment it started to move, when it was going very slowly indeed, and as indeed one of his own witnesses had also wondered. The judge also commented that the driver, although in breach of duty, was put in a difficult situation and his was an error of judgment. 16. It seems to me that the judge in this case applied too rigorous a standard of care when asking himself whether what the driver had done was reasonable in all the circumstances. He referred, as I have indicated, to the fact that there was “not such a pressing need.”

Later on he referred to the fact that “the exigencies of the situation did not … require” the driver to drive the lorry down the road. That is putting it too high. It seems to me that had the driver indeed done what the claimant said he had done, that is driven in such a violent and erratic way as to indicate that he was trying to dislodge the claimant from the front of the lorry, there could indeed have been a breach of the duty of care because he would have been going well beyond what could be considered a reasonable reaction to the difficult situation in which he was placed. But one has to take all the circumstances of that situation into account when deciding whether what he did do was such a reasonable reaction. These include the fact that he was put into the dilemma by the claimant himself who was behaving in an offensive and thoroughly irresponsible fashion, displaying a complete lack of regard for his own safety, let alone for the difficult position in which he had put the driver and his mate. One also has to take into account the surrounding circumstances. It is was late at night (just after the closing time for this particular establishment), there was a reasonably large group of people on the pavement, some of whom at least were friends of the claimant, some of whom had obviously been drinking, and even if the others were not actually aggressive, the claimant was. The claimant's intention may only have been to hold up the lorry for five minutes but the driver and his mate had no means of knowing that and were put in a very difficult situation. In those circumstances I would not consider it unreasonable 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. 17. Furthermore, the judge could have taken more account of the fact that the claimant only fell off when he was engaged in an even more stupid and dangerous act of pulling at the windscreen wiper on to which he was holding. I would agree with Mr Kilcoyne on behalf of the respondent claimant that that does not necessarily rob the driving of all causative effect, but it does indicate something about the reasonableness of the driver's conduct up until that point. 18. For my part I would say that there was in the particular circumstances of this case, in the very difficult situation in which the driver found himself, no breach of the duty to take reasonable care. For that reason I would allow the appeal.”]The claimant’s action in standing in front of the defendant’s car and/or moving across the front of it gave rise to no immediate danger since the car was stationary. It must have been evident to the defendant that the claimant was drunk and that, with his trousers round his ankles, he was not in a position to move quickly or easily. Whilst the claimant had no business to cause an obstruction in the road and was acting in an anti-social manner, it was nevertheless incumbent on the defendant not to drive away until it was safe to do so without risk of injuring the claimant.

[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.

[144]I find that, for some reason, the defendant failed to do this. If he had been watching the claimant closely and had waited for him to reach the pavement near to the NatWest Bank, the accident would not have happened. As it is, his attention must have been directed elsewhere so that he did not pay sufficient attention to the claimant’s progress and position, misjudged the speed at which the claimant was passing in front of the car and wrongly believed that, by steering slightly to his left, he could avoid the claimant and get on his way. That being the case, primary liability for the accident must lie with the defendant.

Contributory negligence

[145]The defendant alleges that the claimant was contributorily negligent. Some of the allegations of contributory negligence contained in the Defence are irrelevant in the light of the findings of fact I have made. Those allegations that remain ‘live’ are: 7.1 walking into the roadway and dropping his trousers in front of traffic 7.5 causing or permitting himself to become so intoxicated that he was unable to take any or any reasonable or proper care for his own safety or to behave in a reasonable and proper manner; 7.6 failing to ensure that he was not in the path or prospective path of any vehicle; 7.8 failing, in the circumstances, to take any or any reasonable or proper basic care for his own safety, in circumstances where he knew full well that such care was required.

[146]Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

“(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

[147]The claimant’s case is that, whilst his drunken and antisocial behaviour set the scene, it was not causative of the accident. For the claimant, Ms Gumbel referred to the recent case of Satnam Rehillv Rider Holdings Limited

[2012] EWCA Civ 628

, in which Richards LJ, giving the judgment of the Court, endorsed the test set out in the earlier case of Eagle v Chambers. At paragraph 28, he said:

“28 It is submitted that the correct place to start is Eagle v Chambers [2003] EWCA Civ 1107, [2004] RTR 9. In that case the driver had struck a young woman walking at night in the carriageway. The trial judge found that she should bear a greater share of the responsibility for her injuries and apportioned her contribution at 60 per cent. The Court of Appeal substituted a figure of 40 per cent. Hale LJ, giving the judgment of the court, stated at para [10] that there are two aspects to apportioning responsibility between the claimant and defendant, namely the respective causative potency of what they have done and their respective blameworthiness. The court rejected an argument, based on the wording of section 1(1) of the Law Reform (Contributory Negligence) Act 1945. that the primary focus should be on the claimant’s conduct and her share in the responsibility: Hale LJ said at para [14] that realistically the court has to compare the two parties. At para [16] she said this: “We also accept that this court is always reluctant to interfere with the trial judge’s judgment of what apportionment between the parties is ‘just and equitable’ under the 1945 Act. But a finding as to which, if either, of the parties was the more responsible for the damage is different from a finding as to the precise extent of a less than 50 per cent contribution. There is a qualitative difference between a finding of 60 per cent contribution and a finding of 40 per cent which is not so apparent in the quantitive difference between 40 per cent and 20 per cent. It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court ‘has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon’: Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, paragraph [20]”

(emphasis added).” “We also accept that this court is always reluctant to interfere with the trial judge’s judgment of what apportionment between the parties is ‘just and equitable’ under the 1945 Act. But a finding as to which, if either, of the parties was the more responsible for the damage is different from a finding as to the precise extent of a less than 50 per cent contribution. There is a qualitative difference between a finding of 60 per cent contribution and a finding of 40 per cent which is not so apparent in the quantitive difference between 40 per cent and 20 per cent. It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court ‘has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon’: Latham LJ in Lunt v Khelifa

[2002] EWCA Civ 801

, paragraph [20]” (emphasis added).”

[148]In Rehill, the claimant had stepped into the path of a bus. Richards LJ continued:

“31 The claimant’s action in stepping into the road when the red man was against him and the bus was so close was described by the Recorder as the result of “his misjudgement or his simple failure to look out”

. I view that as an understatement. This was a controlled pedestrian crossing with the red man showing against pedestrians. That was a strong reason in itself why the claimant should not have attempted to cross at all. If he was minded to attempt to cross despite the red light, it was plainly incumbent on him to check very carefully indeed on the state of the traffic. It is not clear from the CCTV frame at 13.17.31 whether he was looking in the direction of the bus as it approached; but at 13.17.33 he was definitely not doing so. He was seriously blameworthy; and as Mr Jeffreys submitted, his lack of care made a collision with the bus inevitable. On the other hand, the really serious injuries arose not from the initial impact but from the wheel of the bus going over the claimant, and in terms of causative potency I would ascribe greater weight to the conduct of the driver in failing to brake when he should have done: as the Recorder said, the injuries very largely flowed from the lack of prompt braking. More generally, a heavy responsibility rests on the driver of any bus in a town centre, and it is plain that a substantial degree of blameworthiness must attach to the driver’s failures in this case. Overall, even though the claimant moved into the path of the bus, I do not think that this is one of those cases referred to in para [16] of Eagle v Chambers where the pedestrian should be found more responsible than the driver for the injuries he sustained. I do, however, consider that he should share responsibility for those injuries on an equal basis. There is a qualitative difference between a finding of equal responsibility and a finding of one-third responsibility, and the difference is such as in my view to justify interfering with the apportionment made by the Recorder.”

[149]Ms Gumbel argued that the claimant’s behaviour, whilst reprehensible, had no ‘causative potency’. He was in the road, either standing in front of the defendant’s car or moving towards its offside. There was 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 his vehicle. Ms Gumbel submitted that the accident was caused wholly by the defendant’s decision to move forward.

[150]For the defendant, Mr Maskrey argued that, by standing in the road with his trousers round his ankles, the claimant was placing himself in a position of danger. It was, he said, entirely foreseeable that a driver seeking to extricate himself from the situation might make a misjudgement and, as a result, cause injury to the claimant. He emphasised that the test propounded in the case of Eagle v Chambers was twofold and included blameworthiness, as well as causative potency. He submitted that the claimant’s blameworthiness, when set against the defendant’s momentary misjudgement, should result in a finding of contributory negligence well in excess of 50%.

[151]When considering the issue of contributory negligence, it is relevant to bear in mind the setting in which the accident occurred. The area around the mouth of Gallowtree Gate and Horsefair Street is within a pedestrian zone which is closed to all but a few types of vehicle. Horsefair Street is a single lane, one way street along which, at night, only a limited number of vehicles (mainly taxis) pass slowly. The setting is therefore very different from the usual busy city centre road with all types of traffic moving in both directions.

[152]There is no doubt that the claimant behaved in a very foolish manner by standing in the road in front of the defendant’s car and remaining there in such a position as to prevent the defendant’s car from moving off when the traffic lights changed to green. The fact that he was in a pedestrian zone with little traffic around may have led him to have a greater sense of security than would have been the case in an ordinary city street. Certainly, there is no evidence that, before the accident happened, any of the witnesses believed that the claimant was in any immediate danger. Ruth Atterbury’s evidence, which I accept on this point, was that there was “no panic” when the claimant went into the road and she was not concerned about him, since the defendant’s car was stationary and she thought that the claimant would move out of its path. At the time he was struck, the claimant was indeed making his way – albeit slowly – towards the pavement near the NatWest Bank. All the defendant had to do was to wait until the claimant was safely on the pavement before moving off. As it was, the defendant decided that he could (in his words to the 999 operator) “[s?]kip it past,” the claimant and get on his way. It was his decision to move forward when the claimant was still in a position of danger that caused the accident. He drove forward without any warning to the claimant, for example, by sounding his horn. In the event, he misjudged the manoeuvre and struck the claimant. Even then, he did not realise what he had done, but drove on, running over the claimant. In those circumstances, I have no hesitation in concluding that the defendant must bear by far the greater share of responsibility for the accident.

[153]However, I do not consider that the claimant can be absolved of all responsibility. He deliberately placed himself in the road in front of the defendant’s car and remained there at a time when he should have known that the traffic lights were likely to change and the defendant would want to move forward. His drunken state and dropped trousers hampered his ability to move freely and at a normal speed out of the path of the defendant’s car. I am satisfied that it was the fact that the claimant was not moving at a normal speed that led the defendant to misjudge the claimant’s position and mistakenly to believe that he could get past the claimant without striking him. In the circumstances, I consider that it is just and equitable to apportion liability 80% to the defendant and 20% to the claimant.

Cited in 1 later judgment

Groves v Studley 2014