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“Where there is blame, there is a claim…” but court provides a reminder of the key requirement in proving a breach of the duty of care owed to an injured party

Posted: 16/07/2018

In all fields of injury litigation, it is often suggested that people bring claims for no good reason or simply where an unavoidable ‘accident’ has occurred. In any type of claim, be it against a driver, landowner, doctor or hospital, there are various tests that a claimant needs to overcome to succeed: that an individual or entity owed them a duty of care, that they breached that duty, that they suffered actual injury as a result, and that an injury was a foreseeable outcome of the breach of duty. A simple, unavoidable accident does not therefore mean that an injured party has a claim. However, it is fair to say that a range of tenuous claims are presented.

In the recent case of Carter v Kingswood Learning and Leisure Group Ltd [2018] EWHC 1616 (QB), [2018] All ER (D) 05 (Jul), the court took the opportunity to remind all potential litigants and their lawyers of the absolute requirement on a claimant to prove that the proposed defendant owed them a duty of care, breached that duty and that their injury arose as a result.

The Carter case was a personal injury claim, but the basic principles that were reiterated are appropriate in all types of injury litigation. The claimant, a school teacher who had taken a group of pupils on an outing involving various activities, was injured during an abseiling exercise. She had abseiled before, but not for some years. The evidence before the court was that this was not ‘real’ abseiling, but an abseiling ‘experience’ on a specially designed tower where the instructors effectively lowered the participant down by their chest harness which was attached to a safety rope. This was not an exercise in being taught to abseil. 

Subsequent to this exercise, the claimant suffered a significant medical event – a vertebral artery dissection (VAD) resulting in a stroke and serious disability. A VAD can arise from a number of causes, including neck trauma. The claimant brought a claim against the team providing the abseiling ‘experience’ on the basis that as she was being lowered down the tower she felt a trauma to her neck – which, she alleged, triggered the VAD.

The court heard extensive evidence and in the end accepted the claimant’s medical evidence that the likely cause of the VAD and stroke was her neck moving during the experience. However, the issue was how and why that had happened. There were two potential explanations based on the expert evidence. In order for the upper half of the claimant’s body to have been caused/permitted to ‘flop backwards’, resulting in significant trauma, either:

a) the instructor who was controlling and ‘feeding out’ the safety rope switched his hands from the ‘dead’ side of the rope and deliberately pulled on the ‘live’ side to force the rope through an ‘Italian hitch’ knot, thereby creating the necessary degree of slack rope to permit the ‘flopping’ of the claimant’s upper body, or

b) the claimant was holding herself stationary on her abseil rope supporting her body weight while simultaneously pulling her safety rope down towards her chest, thereby creating a degree of slack rope between her chest harness and her hand, allowing her upper body to flop back (again the instructor did not hold the rope sufficiently taut).

The claimant did not allege the first scenario at trial and relied on the second explanation. To succeed, she needed to be able to show that in pulling the safety rope towards her whilst holding onto the abseil brake, she created slack rope which enabled her upper body to fall backwards. The evidence however (including her own) was that she abseiled directly down the tower without stopping or pulling down on the safety rope. The court found that if she did not brake or pull on the safety rope, then there could not have been slack rope and so the accident could not have happened in that way. It further concluded that there was no evidence of her upper body flopping back in the way that was alleged.

The court therefore had to deduce that there was no significant upper body movement caused by either of the mechanisms suggested and that although the VAD had been triggered by a neck movement during the experience, it was a permissible neck movement and not due to any breach of duty/negligence by those operating the experience. The claimant therefore failed in her case.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches, comments: “Every case turns on its facts and in this example there was a substantial amount of evidence that did not match what the claimant alleged. It is interesting that the court accepted the medical evidence that the VAD was triggered during the abseiling, as that, in itself, was a difficult case to prove. On careful analysis, however, the court did not find any evidence to suggest that anything had occurred by way of significant trauma and did not find any failings on the part of the defendant in the way the experience was operated.

“This case is a reminder that it is not enough for claimants simply to base a claim on suffering an injury – they need to prove the mechanism of injury and that the injury happened as a result of failures on the part of another party who owed them a duty of care. The court correctly looked at each step – the claimant was without doubt owed a duty of care for her safety by the defendant and did suffer an injury (which she succeeded in establishing was linked to the activity). She could not however prove how the neck trauma occurred or that there was any significant trauma and therefore could not show that it only occurred due to safety failings by the defendant. Because of this, the claim rightly failed.

“Any activity carries some risks, even when everyone involved does all they can to minimise them. Unfortunately, the claimant here was just extremely unlucky. Her case is a good reminder of the importance of having the evidence to meet each test required to succeed in a claim, and of considering whether it was a genuine accident or whether it occurred because of identifiable actions/failings that were likely to result in such an outcome.”

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