Update: personal injury

Unacceptable risk

In Scout Association v Mark Barnes [2010] EWCA Civ 1476, the Court of Appeal had to balance the 'social and educational value' of an activity against its risks. The respondent (B) played a game called 'Objects in the dark' at a scout meeting organised by the appellant (S). Several blocks were placed in the centre of a room and players had to rush in and grab them. This is a common game, but here the lights were turned off to add excitement.

While playing the game, B collided with a bench injuring his head and shoulder. He sued for damages which at first instance was successful because turning the lights off was held to add an 'unacceptable degree of risk'. S appealed, arguing the risk was no different whether the lights were on or off and claiming the judge failed to take account of or give sufficient weight to the social value of the activity.

The Court of Appeal held the risks associated with this activity were greater.

By majority, it disagreed that the trial judge failed to properly consider the social benefits. In fact, the judge appeared to have in mind Tomlinson v Congleton BC [2003] UKHL 47 and Bolton v Stone [1951] AC 850 HL which highlighted the importance of assessing the 'social value of the activity' as well as risks. The fact it was played in the dark made it more exciting but added no other social or educational value which, when weighed against the increased risks, rendered it unacceptable.

Given this factor was considered, the appeal was dismissed. However, Lady Justice Smith emphasised that the law of tort should not interfere with risky activities which carry social benefits. Lord Ward was concerned about creating 'an over-protective nanny state robbing youth of fun simply because there was some risk involved in the exercise'. However, he agreed that the correct balancing exercise was undertaken in this case.

While the reasoning in this case appears sound, there will likely remain uncertainty as to which activities are considered to have sufficient social or educational value. It appears that fun or excitement as a justification alone may be insufficient, but the court will consider each case on its facts.

In any case, it will likely be difficult to justify many non-standard activities other than common ones such as canoeing or rugby which are risky but many would say done purely for fun and excitement.

A question of limitation

In Hinchliffe v Corus [2010] EWHC 2871 the court declined to exercise its discretion under section 33 of the Limitation Act 1980.

Mr Hinchliffe (H) claimed he was exposed to asbestos in previous employment and in early 2002 developed breathing problems for which he consulted a specialist. In April 2002, this specialist informed him of fibrotic changes on his chest x-ray. On the same occasion, H discussed his previous asbestos exposure.

Solicitors (S) were instructed in December 2004. S contacted H's treating physician concerning the diagnosis, but he doubted it was asbestos related. An independent medical expert (M) was instructed who considered there to be insufficient asbestos exposure to confirm diagnosis and causation.

H gave a further statement which suggested the exposure was greater, and, to enable M to prepare a report, an appointment with H was arranged. However, H's health deteriorated, and he could not keep the appointment. He died in February 2009 and his daughter continued the claim. Proceedings were issued against the defendant (D) in January 2010.

Limitation was tried as preliminary issue. In construing the date of knowledge, the court concluded that H knew his injury was 'significant' in April 2002 because his knowledge was such that a reasonable person would have considered it sufficiently serious to justify starting proceedings. This was because he knew there were fibrotic changes that could be associated with asbestos exposure.

The next question was whether this injury was attributable 'in whole or in part' to a negligent act or admission. The claimant argued there was uncertainty, but the court highlighted the test merely required capability of attribution which in this case was satisfied.

Time therefore ran from April 2002. It was said, however, that in the event the court was wrong, time began in December 2004 when H first contacted his solicitors. In either case, the limitation period expired before the date of death.

The court therefore decided whether to exercise its section 33 discretion. Among others, it noted that despite the difficulties in this case (which includes the uncertainty over diagnosis) the overall time taken to pursue the claim was greater than years years. But for these delays, this case could have been brought to trial by spring 2007 (before H's death). This would have enabled D to cross-examine H and being deprived of this represented 'insurmountable prejudice'. As such, D succeeded and the claim struck out.

While this may appear to be a victory for defendants, the facts of this case are unusual. Among others, the time taken from first instructions to the issue of proceedings exceeded the normal three-year limitation period. Consequently, the defendant was deprived of the opportunity to test the evidence which is crucial in such claims because the extent of asbestos exposure is important to proving causation and diagnosis.

Provided expediency is exercised by the claimant in asbestos cases, which typically relate to events several decades ago, and where the key evidence, including medical records and that of the claimant, is available to be tested by the defendant, it is likely to be much harder for defendants to prove they have been prejudiced.

Abuse of process

In Aktas v Adepta & Dixie v British Polythene Industries PLC [2010] EWCA Civ 1170, the court had to consider whether a second claim form, issued out of time, was an abuse of process. In this case, two claimants issued claim forms either on the expiry date or just before it, but failed to serve them in time. Thereafter, when the second claim forms were issued, the first instance judges in both cases struck them out as abuse of process.

This matter was referred to the Court of Appeal for consideration. Reference was made to the leading authority on this point, Horton v Sadler [2006] UKHL 27, where it was held that section 33 provided a 'wide and unaffected discretion' to disapply the three-year time limit where a second claim form is issued out of time.

D argued this case was restricted to MIB claims where proper notice had not been given. The court disagreed. In addition, they could find no basis in previous authorities that a 'mere' negligent failure to serve was an abuse of process.

In any case, depriving a claimant of the opportunity to ask the court for section 33 discretion was contrary to the will of parliament. Adequate sanction was already present which included the possible costs consequences of the failure of the first action and the risk of it being time barred and no discretion allowed. Accordingly, the claimants' appeal was allowed.

While this outcome may give some relief, this only applies to 'mere' negligent failures and in cases involving inordinate and inexcusable delays; for instance, the court may still hold that there was an abuse of process.

Duty of care

In Everett & Another v Comojo [2011] EWCA Civ 13, the appellants (E&A) were victims of a knife attack at a club owned by the defendant (D). This was a members-only club, but members were able to invite guests who were allowed entry. It was one of these guests who attacked E and so the court had to consider whether D owned a duty of care in respect of the actions of a third party.

The attack followed an earlier incident where E&A were alleged to have inappropriately touched one of the waitresses (K). A club member (B) was incensed by this and promised K that E&A would apologise to her before the end of the evening. B later invited another gentleman (C) as his guest.

K thought C looked scary and was concerned B was going to send this person to obtain an apology and that this might result in confrontation. She reported this to her club manager.

Meanwhile, as K had expected, B demanded an apology which was refused. There was then a scuffle resulting in C stabbing both appellants.

At first instance, E&A were unsuccessful. While the judge found the club could owe a duty to protect against third-party actions, there was insufficient foreseeable risk of injury in this case.

The Court of Appeal first considered whether there was a duty of care and applied the three-part test in Caparo Industries Plc v Dickman [1990] 2 AC 605.

For the first part of the test, regarding 'proximity of the relationship', it was noted D were in control of the premises. They were able to regulate who entered and who could be removed. Guests on their premises spend money so there is an economic relationship between the two. Other guests are entitled to rely on the 'competence and prudence' of the management and expect to be safe without any violence. As such, there was 'sufficient proximity' in this case.

On the question of 'foreseeability of injury', the court noted the known link between alcohol and violence. D's own risk assessment recognised the existence of these risks and so it was foreseeable that one guest might attack another.

Finally, the court considered it was 'fair, just and reasonable' to impose a duty, provided the scope of the duty was properly defined. Also, D had a duty in respect of the condition of the premises under the

Occupiers' Liability Act and it would be unfair if a claim could be made by someone who tripped over a carpet and not someone who was the victim of violence.

The common duty of care is 'an extremely flexible concept, adaptable to a very wide range of circumstances to which it has to be applied'. As such, the court held there could be a duty of care in this case.

However, upon considering the facts, it was noted the risk of confrontation was not imminent. Among others, B was a valued customer and had no prior involvement in any violence. While C's appearance gave cause for concern, he was an employee of B. Therefore, a duty of care did not arise and the appeal was dismissed.

This case confirms that the duty of care is not restricted to the classic situations such as employer/employee. In addition to applying the three-fold test set out in Caparo, the court appears to have adopted a common-sense approach in respect of its reference to the Occupiers' Liability Act 1957.

It is therefore important that claimants are not dissuaded from bringing claims which fall outside the usual categories if there is a reasonable argument to show a duty of care should exist.