How Not to Litigate in Catastrophic Personal Injury Claims - Bill Braithwaite QC, Head of Exchange Chambers

10/02/17. Of course, one strong view is that you shouldn’t litigate at all in major personal injury claims – ADR is so much more flexible, and allows the parties to control the process. However, some cases do seem to come to court, and I had a recent court experience – my first for a long time because, although I finalise about £50 million of claims a year, I rarely need to seek the court’s help.

Briefly, the claimant had staggered across a suburban road late at night, had paused in the centre of the two lanes he was crossing, apparently to wait for the oncoming car, but had then started off again into the path of the car.

We started with a settlement meeting, at which the defence team didn’t seem to expect to have to make an offer, on either liability or quantum. When they did, the offers seemed to us to be ridiculous - we recovered almost three times the percentage they had offered on liability.

Two days after the settlement meeting they increased their offer, and four months later they increased it again.

This was a case very similar to Eagle v Chambers, where the Court of Appeal had changed a finding in favour of a drunk pedestrian from 40% to 60%, saying that a “car can do so much more damage to a person than a person can usually do to a car”.

We went to trial, and offered to discuss compromise at the door of the court, but to no avail.

We had an independent witness who was really excellent, and who had a grandstand view of the entire event. The defence was that the driver couldn’t have seen the pedestrian because he was not conspicuous, even though their own expert described the road, as seen by the witness, as well lit. Their expert had to concede that he had failed to mention in his report one significant source of lighting, which would have helped the defendant to see the claimant, even though it was relevant – not impressive. He also had to concede that, if the independent witness’s account was accurate, the claimant must have been in the road for at least six seconds. As the defendant never saw him until her car hit him, she really was very negligent.

I wonder whether ADR would have stopped this case going to court? It does require willing parties on either side, and I'm not sure that was the case here. It would have saved the insurer an awful lot of money, because we recovered more for the claimant than we would have taken in negotiation – by way of example, if the claim is worth £5 million that’s an extra £750,000. Also, it was an old CFA, so we have a 100% uplift on both liability and quantum! And, instead of finalising the whole case before the discount rate changes, they now run the risk that even a modest lump sum would increase by a million pounds if the rate drops.

For litigators, the message is almost always the same; make sure that you have good evidence. So many cases which you read about give the impression that, had the lawyers sorted the evidence out properly, the result would have been different. This demand for evidence permeates all personal injury and clinical negligence litigation – only two weeks ago, as I write, a judge distinctly preferred one obstetrician to another, causing the NHS Trust to lose a seven day case. The judge said about the defence expert: “I am afraid that I found Mr Howe’s complete disavowal of the appropriateness of having any regard to the fetal head circumference when considering the ventricle width, to lack rational foundation….”. In clinical negligence terms that is the ultimate criticism.

I can't say that we should avoid trial at all costs, because this is an example where being forced to fight has produced a wonderful result on our side. It is the exception, though, and it doesn’t make me want to change my methods – it’s so much better to control the process, and guarantee the result.

Bill Braithwaite QC
Head of Exchange Chambers

Image ©iStockphoto.com/unaemlag

FREE BOOK CHAPTER: Liability of the Player to Spectator and Third Parties (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard)

06/02/17. In this section consideration is given to the circumstances in which a participant in a sporting event may be held liable to a spectator injured while attending an event. Such claims are commonly framed in negligence, with the operative allegation being that the participant failed to take reasonable care for the safety of the spectator rather than in trespass to the person.¹ While one may recall circumstances in which trespass might have been alleged had proceedings been brought,² the focus of this section is on claims advanced in negligence.

(1) LIABILITY IN NEGLIGENCE

In common with claims brought by participants against other participants, the cases in this area have generally been decided at the breach of duty stage, involving a consideration of the standard of care expected of the participant and whether on the facts that standard was met. The standard of care expected of a participant in such circumstances might be said to be generous to the participant - it was observed in Smoldon v Whitworth & Nolan,³ when reviewing the case law dealing with injuries caused to spectators by players, that competitors are entitled to be all but oblivious to spectators while they are properly intent on winning the contest.

The leading case in this area remains Wooldridge v Sumner,⁴ a case in which a photographer was injured by a competitor at an equestrian event. The defendant galloped a horse around an arena at a speed such that a wide arc was necessary, the horse then went out of control and the photographer was struck when he attempted to protect a lady sitting on a bench adjacent to the arena. At first instance the plaintiff succeeded in negligence, the breach being the riding of the horse at too great a speed and the manner in which an attempt was made to bring the horse back into the arena. On appeal however the Court of Appeal held that the failures were ‘mere errors of judgment’ and did not amount to negligence in the circumstances. It was said that what the reasonable spectator would expect is as relevant as what the participant would expect.⁵ Diplock LJ observed that:

“A reasonable spectator attending voluntarily to witness any game or competition knows and presumably desires that a reasonable participant will concentrate his attention upon winning, and if the game or competition is a fast-moving one, will have to exercise his judgment and attempt to exert his skill in what, in the analogous context of contributory negligence, is sometimes called "the agony of the moment." If the participant does so concentrate his attention and consequently does exercise his judgment and attempt to exert his skill in circumstances of this kind which are inherent in the game or competition in which he is taking part, the question whether any mistake he makes amounts to a breach of duty to take reasonable care must take account of those circumstances.”⁶

“The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these: ‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety.’ ”⁷

As will be seen below, in subsequent cases the test of “reckless disregard” has been adopted and applied.⁸

In Wilks v Cheltenham Homeguard Motor Cycle & Light Car Club,⁹ a number of spectators were injured during the course of a motorcycle scrambling event, when they were lined up against a rope which marked out the spectator’s enclosure. A motorcycle left the track at around 25-30mph and struck the spectators causing serious injury. It was held once more that in order to make out their claims the claimants had to demonstrate that the participant had shown a “reckless disregard” for their safety or that their injury was caused by an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made, such that the error could not be reasonably regarded as excusable.

A distinction may be drawn between cases in which the error occurs in the course of the contest as opposed to the error of the participant occurring in the course of the pre-contest preparations, at which point there is a greater opportunity for the participant to reflect on their decisions. That is well illustrated by the case of Harrison v Vincent,¹⁰ in which the defendant was held liable for injury to the passenger in the defendant’s side car resulting from a failure to inspect and maintain the brake mechanism, but not as a result of an error during the course of the race when the defendant missed his gear once the brakes had failed. Similarly, the ‘error of judgment in the heat of the moment’ argument may not be available to a defendant who causes injury to a spectator not when actually competing. In Payne & Payne v Maple Leaf,¹¹ a participant was held liable to a spectator when the spectator was injured as a result of a fight between participants in an ice-hockey match, when not actually competing for the puck. Similarly, in Cleghorn v Oldham,¹² the defendant was held liable for an injury that resulted from a demonstration golf swing, where there was no ‘heat of the moment’ as such.

Cases on those distinct facts aside, the test of “reckless disregard” remains relevant when considering liability as between participants and spectators. The question might be posed however as to whether there is any good reason in principle why the test as between participants and spectators should be different from the test as it applies as between participants, with the question of whether the injury resulted from a mere error of judgment being taken into account when considering the appropriate standard of care and the participant’s conduct. In Blake v Galloway,¹³ Dyson LJ suggested that the test to be applied between participants in horseplay was analogous to that as had been applied in Wooldridge albeit, “in a slightly expanded form”.¹⁴ Nevertheless, the position in Wooldridge and Wilks was confirmed as regards a participant’s liability to a spectator by the Court of Appeal in in Smoldon,¹⁵ albeit that the observations made in Smoldon were obiter.¹⁶

(2) LIABILITY IN NUISANCE

This section briefly considers the potential liability of the participant to the bystander or members of the public in the vicinity of the sporting venue. The bystander may or may not be a spectator but it is helpful to consider this potential head of liability at this point. It is also considered in Chapter 3 which deals with the liability of the owner or occupier of the sporting venue. While many of these cases have been brought against the owner or occupier of the venue in question the individual participant may equally be the subject of such a claim.

Liability in nuisance may be subdivided into private and public nuisance. A party may raise private nuisance as a cause of action in circumstances where there has been an interference with their reasonable use and enjoyment of their land. The claimant must have a proprietary or possessory interest in the land in question. In contrast, public nuisance is relied upon in circumstances where danger is caused to individuals located on a public highway. The difference is illustrated well by the cases in this area relating to damage caused by balls being struck beyond the boundaries of golf and cricket clubs. Where the injured party is located on the public highway then a claim may be brought in public nuisance, whereas where the claimant is located on their own adjoining land then private nuisance is the appropriate cause of action to consider.

Private nuisance is made out where the defendant has caused an interference with the claimant’s reasonably enjoyment of his land, which has not otherwise been authorized.¹⁷ It is to be determined by reference to the circumstances and the particular locality. In the sporting context that would necessarily involve a consideration of the frequency and consequences of the interference when it occurs. While coming to the nuisance is not a defence, it may be relevant as a feature of the locality which is to be taken into account or it may be a ground on which to refuse to order injunctive relief.

Illustrations of liability

Liability has been established in circumstances where a taxi-driver’s windscreen was struck by a golf ball onto an adjoining highway,¹⁸ where balls were hit out of the grounds of a golf club on regular basis and¹⁹ in one case where 60,000 golf balls were hit over a fence each year.²⁰ Liability was not established in circumstances where cricket balls were hit out of the grounds of a cricket club but only rarely.²¹ Liability has also been established in a number of cases involving noise nuisance associated with sporting activities although not resulting in personal injury.²²

Adam Walker
Patricia Leonard
7 Bedford Row

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Editorial: Constitutional Litigation - Aidan Ellis, Temple Garden Chambers

30/01/17. Though not a personal injury claim, it would be churlish for this editorial to overlook the most important legal case of the month. In Miller v Secretary of State for exiting the European Union, the Supreme Court decided by majority that withdrawal from the treaties establishing the European Union required an Act of Parliament and could not lawfully be done by the executive alone. Though the Supreme Court decision attracted less florid criticism than the earlier Divisional Court judgment, it remains a highly controversial decision both legally and politically. This editorial does not intend to wade into the merits of the decision, but to ask why a legal case generated such vitriol.

On one level, the answer is straightforward. The case followed a divisive referendum that has led to allegations of dishonesty in both campaigns. People divided into opposing camps by the referendum were divided again in their response to the case. But it is suggested that this cannot provide a complete explanation for a situation in which a newspaper feels able to label senior Judges as ‘enemies of the people’.

Another relevant factor might be that genuine constitutional litigation remains relatively rare in the United Kingdom. The legal interest in this case arose from the tension between two fundamental constitutional principles: the undoubted prerogative power exercised by ministers to conduct international relations and enter treaties and the equally clear principle that the executive, without the authority of parliament, may not alter national law. The key cases on the extent of royal prerogative powers cited in the judgment were the Fire Brigades Union (1995), Burmah Oil (1965) and De Keyser’s Royal Hotel (1920); all cases which would have been familiar to law students 20 years ago. Decades have passed in between these decisions. As a result, it is hardly surprising that as a nation we are simply not used to such issues being determined by a Court, unlike for example the accepted role of the Supreme Court in the USA.

Another factor might be that our constitution is inaccessible. Our constitutional rules have developed organically over time and one result of that process is that the rules are rarely neatly gathered together in one place. Instead, key principles are often buried deep in constitutional law textbooks. The historical dimension is particularly relevant in relation to the prerogative powers, where a historical analysis may be required to determine the scope of a prerogative power and then to determine if that power has expressly or impliedly been abrogated by statute in the intervening years. Whilst paragraphs 40 – 59 of the majority judgment should be commended for their lucid summary of the relevant principles, that we need to look to the detail of judgments itself shows that the constitution is not readily accessible.

One solution to these matters would be to codify a written constitution. That would be an enormous undertaking, made only slightly easier by removing a layer of European complications. But if a constitution could be drafted, it would make constitutional law more accessible. Perhaps in that case constitutional litigation would occur more frequently, be met with less hostility and law students would not have to wait another twenty years for the next blockbuster case.

Aidan Ellis
Temple Garden Chambers

Image cc flickr.com/photos/buggolo/2097137765/