Legal Watch: Personal Injury 10th September 2015 Issue: 076
Public liability With England’s victory in the Ashes series still fresh in the memory, it is timely to report a case relating to cricket. In
In this issue:
Officials [Lawtel 4/09/2015] the claimant was captain of a
• Public liability
of heavy rainfall which he considered had made the pitch
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Bartlett v English Cricket Board and Association of Cricket cricket team. He had decided to call off the match because unsafe. The opposing team captain insisted that the match
• Public liability/QOCS
umpires inspect the ground in accordance with the Laws of
Cricket. The umpires considered that it was not dangerous or unreasonable for play to take place.
During the match, the claimant used a “sliding stop” technique which involved extending one leg while in a crouching position.
When using that technique, it was necessary to extend the leg on the same side as the hand used to catch the ball in order to
protect the knee. After performing the sliding stop, the player felt excruciating pain in his left leg and collapsed. He was
found to have suffered a soft tissue injury requiring the use of a knee brace for eight weeks.
Events
The claimant held the umpires responsible for his injury by
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:
allowing play when the pitch was unfit. The association relied
on volenti non fit injuria in that the player had chosen to play and to undertake the sliding stop on a ground he considered to be unsafe. According to the letter before action and the
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carrying out the sliding stop procedure. However, at trial he
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claimant’s initial statement, he had led with his left leg when
testified that those documents were incorrect and he had in fact led with his right leg.
Finding in favour of the defendant, the County Court judge
held that it was an established principle that referees owed
a duty of care to players to enforce the rules of the sport in
question so as to minimise the inherent dangers of injury engendered by participation. Accordingly, cricket umpires
owed a duty of care to the players involved in the game over which they officiated.
Seminar - You the client | 21.04.16 | The
Although a referee in a fast-moving game could not
The claimant’s evidence in the letter before action and
the umpires had had all the time they needed to reach a
Accordingly, the claimant, who was right-handed, had
reasonably be expected to avoid errors of judgement, considered decision and had not been required to make a
difficult assessment within seconds. Therefore, whilst the threshold of liability in umpiring decisions in the course of a game was high, that threshold was lower in the circumstances of the instant case.
‘…the fact that grass in a cricket ground was wet and slippery did not mean that the ground conditions were dangerous…’ Although the Laws of Cricket did not define what was “dangerous or unreasonable”, it was common sense that
it would be dangerous and unreasonable to allow play to proceed if the umpires considered the prevailing conditions
were such that there was an obvious and foreseeable risk to the safety of the players. However, the fact that grass in
a cricket ground was wet and slippery did not mean that the ground conditions were dangerous, as a match could
be played safely even when conditions were not ideal.
In accordance with Law 3.9 as it applied at the time, the umpires were entitled to conclude that it was unreasonable
for play to take place if the ground was so wet or slippery as to deprive the fielders of the power of free movement around the pitch.
The umpires had made a detailed assessment of the conditions and were in the best position, as compared
to those who had carried out a more cursory appraisal, accurately to determine whether it was safe to play. Before
making that decision, they had taken into account the teams’ representations and had carried out a thorough and careful inspection. The players’ safety had been a primary
consideration in their decision-making process. Accordingly,
the association was not in breach of its duty of care owed to the claimant and the other players. 02
statement was to be preferred to that given at trial. carried out the sliding stop incorrectly by leading with his left leg instead of his right. That incorrect use of the technique had caused the injury to his knee in a manner that was a well
known risk of the procedure being carried out incorrectly. In any event, the condition of the ground was not the cause or a material contributing factor of the player’s injury.
Public liability/QOCS The next case is also sports related but is of added interest because it looks at the effect of qualified one-way costs shifting (QOCS). In Wall (deceased) v British Canoe Union [Lawtel 8/09/2015] the defendant was the governing body
in the United Kingdom for the sport of canoeing. It had
published a guidebook about canoeing on English rivers. The claimant was the widow of a canoeist who had drowned when trying to traverse a weir which she claimed the book
said could be negotiated safely. She maintained that the claimant was liable in negligence because her husband
had relied on the book, which had given no warning about the weir. As the personal representative of her husband’s estate, she claimed damages on behalf of the estate under
the Law Reform (Miscellaneous Provisions) Act 1934 and
also damages for herself and their daughter under the Fatal Accidents Act 1976.
engaged in an activity arranged by the defendant nor had
he been under its control, supervision or instruction. The deceased, an experienced and skilled canoeist, had merely read the guidebook which the defendant had published
almost 10 years before the fatal accident. There was no duty of care and it would not be fair, just or reasonable in
the circumstances to find that such a duty of care could be imposed. If a duty of care were found to exist it would mean that every publisher of every guidebook in the world on whatever topic would assume an unlimited legal
responsibility for the action and omissions of anyone who
read their guidebook at any time after the publication. That
responsibility would be unlimited, not only in terms of the indeterminate class of those who might read the book but
also in terms of time. The inevitable consequence would
be that no author would wish to be exposed to liability for
Dismissing the claim, the County Court judge held that a
writing on a topic which might result in physical injury and
that, among other things, the defendant owed him a duty
any element of uncertainty or risk.
claimant seeking damages in negligence had to establish
certainly not on those activities and sports which involved
of care. In order to impose such a duty on a defendant, the
The claimant’s statement of case disclosed no reasonable
court had to be satisfied that the damage was foreseeable,
that there was a relationship of proximity between the party owing the duty and the party to whom it was owed, and that it was fair, just and reasonable to impose the duty.
‘There was no duty of care and it would not be fair, just or reasonable in the circumstances to find that such a duty of care could be imposed’ In the present case, there was no relationship of proximity between the deceased and the defendant. He had not
grounds for bringing the claim and so, pursuant to CPR 3.4(2) it would be struck out.
CPR 44.13(1) provided that qualified one-way costs shifting applied to claims under the 1934 and 1976 Acts. Under CPR 44.14(1), orders for costs made against a claimant
could be enforced only to the extent that the sum did not
exceed the total damages and interest made in favour of the claimant. However, under CPR 44.15, orders made against the claimant could be enforced fully where the proceedings
had been struck out because the claimant had disclosed
no reasonable grounds for bringing the proceedings. Therefore, where the claimant’s claim had been struck out, a costs order could be enforced in full; but in such a case
the claimant would not have been awarded any damages so the rule allowed full enforcement of any costs orders
made in the defendant’s favour in the proceedings as if the qualified one-way costs shifting did not exist.
03
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With effect from 1 October 2015, CPR 3.1, which defines
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Comment While in practice this rule is more likely to be applied to
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