Liability Update – Topical
issues across the mix
Case Update : Public & Products
Liability
Suzanne Kearney – Director, SLS, a
Crawford Company
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.
Palmer v Palmer [2008] EWCA Civ 46
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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.
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.
TRUSTEES OF THE PORTSMOUTH YOUTH ACTIVITIES COMMITTEE
(A CHARITY) –V- POPPLETON [2008] EWCA Civ 646 –
OCCUPIERS’ DUTY OF CARE
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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.
Biffa Waste Services Ltd & Another v Maschinenfabrik
Ernst Hese GMBH & Others, CA, 12/11/2008
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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.
TIMOTHY PERRY (2) CATHERINE PERRY –V- SAMUEL HARRIS (A
MINOR)
[2008] EWCA Civ 907 – OCCUPIERS DUTY OF CARE
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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
MONSOOR ALI –V- LONDON BOROUGH OF CAMDEN (2008)
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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.
IDE –V- ATB SALES LTD [2008] EWCA CIV 424
APPROACH TO CAUSATION
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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.