News

Court of Appeal judgment on Duty of care / causation appeal
2 February 2011

Sir Geoffrey Nice QC appeared for the Appellant and Keith Morton appeared as junior counsel for the Second Respondent in an appeal against the decision of Field J that dismissed a claim brought by an Airman who was rendered tetraplegic in an accident on a 'It's a Knockout' fun day arranged by his employer the MOD. He went head-first over the side of a 1 metre high inflated tube into a pool of c. 18" of water striking his head on the pool bottom. About half those playing the game before the Claimant entered the pool in the same way. Field J rejected his claim against his employer and the event organiser. He held that the risk of catastrophic injury, whilst identifiable, was not unacceptable when considering the wider social value of such events. In doing so Field J preferred the evidence of one of the health and safety experts in the case; that expert opinion was informed by a series of statistics which the Court of Appeal concluded bore little relevance to the facts of the index accident. The Court of Appeal, per Smith LJ, found that the extent of the Judge's reliance on that expert opinion, may have been unsafe and allowed the appeal to the extent of ordering a retrial before a different Judge on a narrowly defined issue that focussed just on the degree of risk of serious injury taking into account the social value of the game. The Parties were urged by the Court of Appeal to engage in mediation before the retrial.