Monday passed (21 January) is officially recognised as the most depressing day in the year. And so, it was something of a distraction to the surrounding doom and gloom to read Swift J most recent judgment in the personal injury case of Ayres v Odedra  EWHC 40 (QB). Those of you who read this blog regularly will know that Swift J’s decisions have been the subject of a number of postings.
Here are the facts. C had brought proceedings, via his Mother and litigation friend, after having been involved in a road traffic accident with D. C had been out drinking heavily with his friends, and as the evening progressed the more inebriated he became. C and friends found themselves in the city centre walking or perhaps more accurately stumbling their way towards a club. Being boisterous young people they were in the mood for ‘larking about’. In C’s case, he decided to stand in the middle of the road in front of D’s car and proceed to moon. For those of you unfamiliar with the expression Wikipedia offers a very helpful definition: “the act of displaying one's bare buttocks by removing clothing, e.g., by lowering the backside of one's trousers and underpants, usually bending over, whether also exposing the genitals or not.” D attempted to drive around C, yet somehow C ended up getting run over. At trial there was a dispute over whether C fell by reason of being drunk or that he had been inadvertently struck by D. The finding was that D had misjudged the timing of C’s actions; he was on notice of C’s condition not least because of his disinhibition and ought to have given him a wider berth. On the question of contributory negligence, C was found to have contributed to his injuries by being inebriated and mooning but the reduction was a modest 20%.
The act of mooning is criminal offence in many countries, attracting sentences ranging from imprisonment through to corporal punishment. In this country it could constitute an offence of disorderly conduct or indecent exposure. However, more often than not the ‘mooner’ will get away with a warning by the police officer not to do it again. What is interesting, in this case, is that such disorderly conduct resulted in a low level of deduction. The two overriding factors that courts consider in respect of contributory negligence are the causative potency of a Claimant's act/omission and its moral blameworthiness to the injury in question. On any given view the Claimant scored highly on both fronts. Does this mean our courts are adopting a soft approach to such conduct?