State of the Nation
Case update
Simon Burley ACII FCILA
Delta Claims Services Limited
Introduction
• Compensation Act 2006
• A thorough investigation and a well argued case can make a
difference
• Occupants and their responsibilities
• Causation
• Exaggeration & Fraud
• State of knowledge – update
• Penalties & Criminal convictions
Compensation Act 2006
• Brought in to fight the growing trend of events or activities being
cancelled because they are too “risky”
• Designed to support those who wished to undertake events
considered “risky”
Section 1 of the Compensation Act 2006
“Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty
may, in determining whether the defendant should have taken
particular steps to meet a standard of care (whether by taking
precautions against a risk or otherwise), have regard to whether a
requirement to take those steps might:
(a) prevent a desirable activity from being undertaken at all, to a
particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection
with a desirable activity.”
Pre Compensation Act
The common law position- Tomlinson v Congleton BC [2003]
Lord Hoffmann:
The question of what amounts to reasonable care depends upon
assessing, not only the likelihood of injury and the seriousness of
the potential injury, but also the social value of the activity which
gives rise to the risk and the cost of preventative measures. These
factors have to be balanced against each other.
Cole v Davis-Gilbert [2007]
The maypole case
Baker LJ:
“ If the law were to set a higher standard of care than that which is
reasonable in cases such as the present, the consequences would
quickly become inhibited. There would be no fêtes, no maypole
dancing and none of the activities that have come to be associated
with the English village green for fear of what might conceivably go
wrong.”
Note: no reference to the Compensation Act
Trustees of the Portsmouth Youth Activities
Committee v Poppleton [2008]
•
Climbing wall case. Duty to train/supervise?
• Analysed by the Court of Appeal by reference to the “obvious
voluntary risk” test
• No reference to “the Act”, despite apparent relevance
• See also Evans v Kosmar Villa Holidays Ltd
[2007] EWCA Civ 1003, [2008]
Robert Lee Uren v Corporate Leisure (UK) Ltd,
MOD etc [2010]
• RAF “Health and Fun Day”. “It’s a knock-out” type competition
• Common law test applied
• A balance has to be struck between the level of risk and the benefits
of the activity
• In the context of this case section 1 of the Compensation Act 2006
adds nothing to the common law
• Claimant is appealing to Court of Appeal.
Hopps v Mott MacDonald and Ministry of
Defence [2009]
• Reconstruction of Iraq infrastructure in 2003
• IED attack injured Claimant in Army Landrover
• “Armoured vehicle” allegation
• “Confined to base” allegation
• Judge relied on s.1
• Claim failed on both breach and causation.
What is a “desirable activity”?
• Not defined, could mean almost anything (legal)…
What is a “desirable activity”?
In practice it appears to relate to “social value”
Under the Act:
• Reconstructing the shattered infrastructure of Iraq
At common law:
• Swimming, family picnics
• Dancing round a maypole
• “It’s a knock-out” competitions for employees.
Proving an activity is “desirable”
If desirability is not obvious, consider:
•
Reasons for and goals of activity?
•
Medical or social research showing its social/public benefit?
•
Recognised by a public body, eg charitable status?
•
Government policy to promote the activity?
•
What evidence can be obtained to prove these?
2010 – Current position?
• The principles of s.1 highlight the recent common law principles
• S.1 and common law evolution advance hand in hand and reinforce
each other
• If organisers and insurers are prepared to obtain the relevant
evidence, the common law and s1 together may reinforce each
other to protect beneficial activities.
Can a thorough investigation and a well argued
case can make a difference?
• Kerr v Willis [2009]
– Quality of witness evidence
• Steven Threlfall v Hull City Council [2009]
– Provision of suitable equipment (EL!)
• Mann v Northern Electric Distribution Ltd [2010]
– Foreseeability
• Gouldbourn v Balkan Holidays Ltd and Anr [2010]
– Who’s standards do we measure?
A good year for Occupiers?
• Tomasz Krysztof v Nadia France Isaacs [2010]
– Householder not responsible for injury to worker
• Harvey v Plymouth City Council [2009]
– Duty owed to visitors extended
•
Henry Webster & Joseph Webster v Ridgeway Foundation School [2010]
– School not responsible for fight in school grounds
Causation
• Robert Eric Spencer v Wincanton Holdings Ltd [2009]
– Intervening break in the chain?
•
Jane Burke v RSM Castings [2010]
– Injury caused elsewhere?
Exaggeration & Fraud
• Martine Widlake v BAA Limited [2009]
– Failure to negotiate
•
Owens v Noble [2010]
– Procedural clarity
State of knowledge – update
• Corby Group Litigation v Corby BC [2009]
– £3-£4m Class Action
– State of knowledge ignored!
– Corby now agreed to pay compensation
Penalties & Criminal Convictions
• R & RM Berwick Steel Erection Services Limited
– Lincoln Crown Court, May 2010
• R v Aston Villa FC and Mechanical Cleansing Services Ltd
– Stratford Upon Avon Magistrates Court, June 2010
• Cotswold Geotechnical Holdings Limited
– Corporate Manslaughter – trial delayed