Liability Update – Topical issues across the mix

1. Liability Update – Topical issues across the mix Case Update : Public & Products Liability Suzanne Kearney – Director, SLS, a Crawford Company

2. CENET –V- WIRRAL MBC 2008 EWHC 1407 (QB) PEDESTRIAN ON CARRIAGEWAY • The Claimant tripped in the carriageway of a residential street. There were substantial credibility issues over the Claimant and her witnesses. The Judge dismissed those concerns and found the accident location to have been dangerous. • Held on appeal: the Judge’s assessment of witness credibility could stand, but (despite the accident occurring at a point often used for crossing the road) the Judge had applied too high a standard of maintenance. This was a carriageway not a footway, in that context, the defect was not dangerous.

3. Palmer v Palmer [2008] EWCA Civ 46 • Here a passenger suffered devastating injuries in a car accident caused by her father. The Motor Insurer’s Bureau (‘M’) were joined into the action because her father’s insurer’s avoided liability due to non-disclosure. Liability to the daughter was admitted but M required the daughter to sue ‘P’, a manufacturer of a device that had been fitted to the daughter’s seat belt. • It was found that the devise was negligently designed and was unsafe and defective. It was found that the device had contributed to K’s injuries in the accident. Damages were likely to have exceeded £2million. • The interesting aspect of this case is that P’s product liability insurers were only responsible for a maximum of £500,000 of damages and costs. P was not financially sound and would not be able to pay the balance. During the litigation P’s product liability insurers turned down an offer of settlement of £300,000 and it was found by the court that this was driven, not by the consideration of P’s commercial interests (because that would have been to settle) but instead by the insurer’s own interests. • The judge therefore ordered the payment of the costs of the litigation incurred by the other parties to be payable by the product liability insurer personally, irrespective of the £500,000 limit. This was because it was found that the insurer was funding, controlling and directing the defence of the litigation in its own interest.

4. HARRISON –v- DERBY CITY COUNCIL (2008) EWCA Cid 583 SECTION 58 DEFENCE • The Claimant tripped and fell over a depression in a footway. There were cellars beneath the footway, with metal access covers. There was the risk of subsidence or drop where there were such cellars. The Defendant did not carry out any risk assessment of the chance of such movement, and inspection every six months. The Claimant maintained inspections should have been more thorough and more frequent. • Held on the facts that the rarity of cellar “collapse” and the modest nature of any defect so created would not have made a different inspection regime either reasonable or proportionate. The s.58 Defence was established.

5. TRUSTEES OF THE PORTSMOUTH YOUTH ACTIVITIES COMMITTEE (A CHARITY) –V- POPPLETON [2008] EWCA Civ 646 – OCCUPIERS’ DUTY OF CARE • The Claimant/responded was an inexperienced climber who did simulated rock climbing without ropes at the Defendant/Appellant’s indoor climbing premises. He attempted a leap from the back wall to a buttress on the opposite wall. He lost his grip and landed o his head, and was rendered tetraplegic. • He brought a claim for damages on the grounds that the appellant had failed to provide sufficient supervision and had breached its duty under section 2 of the Occupiers’ Liability Act 1957. • The Judge found that the appellant was in breach of its duty of care by failing to warn the respondent that the thick safety matting did not make a climbing wall safe but found him 75% contributory negligent. • The Court of Appeal allowed the appeal and held that it was quite obvious that no amount of matting would avoid the possibility of injury from an awkward fall. There was an inherent risk that the respondent voluntarily undertook. It was extremely rare for an occupier to be under a duty to prevent people from taking risks which were inherent in the activities they freely chose to undertake Tomlinson v Congleton BC [2003] UKHL 47 applied.

6. Biffa Waste Services Ltd & Another v MaschinenfabrikErnst Hese GMBH & Others, CA, 12/11/2008 • A fire broke out causing substantial damage to a mill whilst works were being carried out. • The claimants brought proceedings against the defendants, alleging breach of contract and negligence. Joint expert statements indicated that the fire had been caused by theactivity of the third party, the most probable ignition source being welding/grinding sparks. • The judge held that the activities of the third party’s employees had been ultra-hazardous. He concluded that the second defendant had been vicariously liable for the negligence of the third party’s welders, on the basis that they had become the second defendant’s borrowed employees. • The Court of Appeal held that the judge’s decision was wrong. The claimant had not, and could not, establish vicarious liability for the negligence on the basis that the third party’s welders had become the second defendant’s borrowed employees. The third party’s employees had been skilled welders and had used their own equipment. • They had used their own foreman on site to supervise them, and there could be no question of the second defendant exercising control over the manner in which they welded. Nor could it be said that they had become part of the business or undertaking of the second defendant.

7. TIMOTHY PERRY (2) CATHERINE PERRY –V- SAMUEL HARRIS (A MINOR)[2008] EWCA Civ 907 – OCCUPIERS DUTY OF CARE • The appellants had hired a bouncy castle for a children’s birthday party. The respondent, H, was not invited to the party but had been given permission by Mrs Perry to play on the castle. While playing, he had been struck on the head by the heel of a much taller and older boy performing a somersault. He suffered head injuries. The accident happened whilst Mrs Perry’s back was turned, helping another child. • The judge found that her duty of care required her to maintain uninterrupted supervision of the castle and that if she had done she would have prevented the somersault and therefore the accident. He also held that she should not have allowed other bigger children to use the castle at the same time. • The Court of Appeal held that it was impossible to preclude the risk that children might injure themselves or each other whilst playing. The standard of care required was that of a reasonably careful parent for her own children. It was not reasonably foreseeable that boisterous behaviour might lead to serious or severe injury. There was no duty to watch the children continuously. Further, it was doubtful whether the accident could have been prevented by constant supervision

8. MONSOOR ALI –V- LONDON BOROUGH OF CAMDEN (2008) • The Claimant was a minor who suffered two accidents whilst taking parting supervision playground activities. • The first accident occurred on the 13 September 2005 when the Claimant fell from bicycle and sustained a fractured tibia. The second accident occurred on 21 November 2005 when he had been running and tripped over, fracturing the lower part of his left fibula. • The Claimant claimed that the local authority was negligent in providing inadequate supervision. • The Judge held that whilst he accepted the Claimant’s evidence regarding the accident circumstances in relation to the first accident, it was a mere accident and there was no negligence on the part of the local authority. • So far as the second accident was concerned, whilst it was apparent that the local authority was on notice having been specifically informed by the Claimant’s mother to exercise caution given his previous fracture, the judge took the view there was no specific agreement to limit his level of activity, so it was reasonable and appropriate for the Claimant to have used the equipment as part of his growing process. In the words of the judge “it was impossible to wrap him in cotton wool”. • The judge found the level of supervision was suitable.

9. IDE –V- ATB SALES LTD [2008] EWCA CIV 424 APPROACH TO CAUSATION • The Claimant’s case was that the handlebars of a mountain bike suddenly broke, causing him to fall and suffer a serious head injury. The Claimant had no recollection of the accident itself. • Defendant’s case was that they may have broken without fault on its part as a result of the Claimant falling. • The judge preferred the Claimant’s expert evidence and found for the Claimant. • The Defendant appealed, arguing that the judge had decided which was the least improbable cause and then simply found it to have been the cause, and that it was an impermissible approach to causation. • The Court of Appeal dismissed the appeal: although explanations were uncommon, neither was improbable and the judge had in fact approached the case by eliminating all the suggested causes but on (i.e. the one advised by the Claimant) and then asked himself whether on the balance of probabilities that was the cause. This was permissible approach to causation.