Legal Watch:Personal Injury10th September 2015Issue: 076

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Public liability

• Public liability/QOCS

• Watch this space

Public liabilityWith England’s victory in the Ashes series still fresh in the memory, it is timely to report a case relating to cricket. In Bartlett v English Cricket Board and Association of Cricket Officials [Lawtel 4/09/2015] the claimant was captain of a cricket team.Hehaddecidedtocalloff thematchbecauseof heavy rainfall which he considered had made the pitch unsafe. The opposing team captain insisted that the match umpires inspect the ground in accordance with the Laws of Cricket. The umpires considered that it was not dangerous or unreasonable for play to take place.

During the match, the claimant used a “sliding stop” technique which involved extending one leg while in a crouching position. When using that technique, it was necessary to extend the leg on the same side as the hand used to catch the ball in order to protect the knee. After performing the sliding stop, the player felt excruciating pain in his left leg and collapsed. He was foundtohavesufferedasofttissueinjuryrequiringtheuseofa knee brace for eight weeks.

The claimant held the umpires responsible for his injury by allowingplaywhenthepitchwasunfit.Theassociationreliedon volenti non fit injuria in that the player had chosen to play and to undertake the sliding stop on a ground he considered to be unsafe. According to the letter before action and the claimant’s initial statement, he had led with his left leg when carrying out the sliding stop procedure. However, at trial he testifiedthat thosedocumentswere incorrectandhehad infact led with his right leg.

Finding in favour of the defendant, the County Court judge held that it was an established principle that referees owed a duty of care to players to enforce the rules of the sport in question so as to minimise the inherent dangers of injury engendered by participation. Accordingly, cricket umpires owed a duty of care to the players involved in the game over whichtheyofficiated.

02

Although a referee in a fast-moving game could not reasonably be expected to avoid errors of judgement, the umpires had had all the time they needed to reach a considered decision and had not been required to make a difficult assessmentwithin seconds. Therefore, whilst thethreshold of liability in umpiring decisions in the course of a game was high, that threshold was lower in the circumstances of the instant case.

‘…the fact that grass in a cricket ground was wet and slippery did not mean that the ground conditions were dangerous…’Although the Laws of Cricket did not define what was“dangerous or unreasonable”, it was common sense that it would be dangerous and unreasonable to allow play to proceed if the umpires considered the prevailing conditions were such that there was an obvious and foreseeable risk to the safety of the players. However, the fact that grass in a cricket ground was wet and slippery did not mean that the ground conditions were dangerous, as a match could be played safely even when conditions were not ideal. In accordance with Law 3.9 as it applied at the time, the umpires were entitled to conclude that it was unreasonable for play to take place if the ground was so wet or slippery as todeprive the fielders of thepower of freemovementaround the pitch.

The umpires had made a detailed assessment of the conditions and were in the best position, as compared to those who had carried out a more cursory appraisal, accurately to determine whether it was safe to play. Before making that decision, they had taken into account the teams’ representations and had carried out a thorough and careful inspection. The players’ safety had been a primary consideration in their decision-making process. Accordingly, the association was not in breach of its duty of care owed to the claimant and the other players.

The claimant’s evidence in the letter before action and statement was to be preferred to that given at trial. Accordingly, the claimant, who was right-handed, had carried out the sliding stop incorrectly by leading with his left leg instead of his right. That incorrect use of the technique had caused the injury to his knee in a manner that was a well known risk of the procedure being carried out incorrectly. In any event, the condition of the ground was not the cause or a material contributing factor of the player’s injury.

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Public liability/QOCSThe next case is also sports related but is of added interest because it looks at the effect of qualified one-way costsshifting (QOCS). In Wall (deceased) v British Canoe Union [Lawtel 8/09/2015] the defendant was the governing body in the United Kingdom for the sport of canoeing. It had published a guidebook about canoeing on English rivers. The claimant was the widow of a canoeist who had drowned when trying to traverse a weir which she claimed the book said could be negotiated safely. She maintained that the claimant was liable in negligence because her husband had relied on the book, which had given no warning about the weir. As the personal representative of her husband’s estate, she claimed damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and also damages for herself and their daughter under the Fatal Accidents Act 1976.

Dismissing the claim, the County Court judge held that a claimant seeking damages in negligence had to establish that, among other things, the defendant owed him a duty of care. In order to impose such a duty on a defendant, the courthadtobesatisfiedthatthedamagewasforeseeable,that there was a relationship of proximity between the party owing the duty and the party to whom it was owed, and that it was fair, just and reasonable to impose the duty.

‘There was no duty of care and it would not be fair, just or reasonable in the circumstances to find that such a duty of care could be imposed’In the present case, there was no relationship of proximity between the deceased and the defendant. He had not

engaged in an activity arranged by the defendant nor had he been under its control, supervision or instruction. The deceased, an experienced and skilled canoeist, had merely read the guidebook which the defendant had published almost 10 years before the fatal accident. There was no duty of care and it would not be fair, just or reasonable in the circumstances to find that such a duty of care couldbe imposed. If a duty of care were found to exist it would mean that every publisher of every guidebook in the world on whatever topic would assume an unlimited legal responsibility for the action and omissions of anyone who read their guidebook at any time after the publication. That responsibility would be unlimited, not only in terms of the indeterminate class of those who might read the book but also in terms of time. The inevitable consequence would be that no author would wish to be exposed to liability for writing on a topic which might result in physical injury and certainly not on those activities and sports which involved any element of uncertainty or risk.

The claimant’s statement of case disclosed no reasonable grounds for bringing the claim and so, pursuant to CPR 3.4(2) it would be struck out.

CPR 44.13(1)providedthatqualifiedone-waycostsshiftingapplied to claims under the 1934 and 1976 Acts. Under CPR 44.14(1), orders for costs made against a claimant could be enforced only to the extent that the sum did not exceed the total damages and interest made in favour of the claimant. However, under CPR 44.15, orders made against the claimant could be enforced fully where the proceedings had been struck out because the claimant had disclosed no reasonable grounds for bringing the proceedings. Therefore, where the claimant’s claim had been struck out, a costs order could be enforced in full; but in such a case the claimant would not have been awarded any damages so the rule allowed full enforcement of any costs orders made in the defendant’s favour in the proceedings as if the qualifiedone-waycostsshiftingdidnotexist.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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Watch this spaceWith effect from1October 2015,CPR 3.1,whichdefinesthe courts’ case management powers, has been amended at sub-paragraph (2)(m) as follows:

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may...

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.

CommentWhile in practice this rule is more likely to be applied to lower value cases, particularly those involving litigants in person,itcouldalsobeviewedasthefirstmovetowardsarequirement that parties engage in ADR at an early stage in any proceedings.