Earlier we highlighted the Court of Appeal’s first decision in a personal injury assessment of damages case. You can read the piece here. In that case the court reduced the award of Cross J. The decision was a welcome relief for insurers who may have been concerned at a perceived rise in damages in personal injury actions driven by some High Court Judges.

Insurers will welcome the decision of the same court in Nolan v Wirenski to reduce a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future.

In delivering the judgement Irvine J said “Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries“.

Referring to the limits of awards in personal Injury cases the Judge said “It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000 . That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded……..Moving back to the present case, the essential point is that it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450,000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury”.

The Court referred to the judgement of Denham J in the case of M.N v S.M saying “damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. As she stated at para. 44 of her judgement “there must be a rational relationship between awards of damages in personal injuries cases.” Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries“.

In the case at hand the plaintiff’s credibility was very much in question. She had withdrawn a €350,000 care claim on the morning of the hearing, and despite the fact that the plaintiff claimed that she could not raise her arm beyond a certain point, video evidence presented by the defendant showed that she was able to. The trial judge had found the plaintiff to be a credible witness. The Court of Appeal took a somewhat different view to that of the trial judge. Nevertheless the Court did accept the position reached by the trial judge, although not without comment.

” In my view, the proper approach in this case is to accept that the trial judge was satisfied as to the general credibility of the plaintiff and to examine the award of damages against the background of the medical reports but making allowance for the clear evidence that was demonstrated as mentioned above. I do not think that this court should independently make allowance for a diminution of the plaintiff’s credibility generally, notwithstanding my view that the trial judge should have embarked on that consideration. I confess that I am uneasy not only about the video evidence but also because of the withdrawal on the morning of the hearing of a very large capital claim for past and future care. However, in deference to the judge’s superior position as to the plaintiff’s evidence, I would merely engage in a correction exercise as to the particular findings that the judge made and then consider the damages award in that light….My approach accordingly is to accept the trial judge’s general evaluation of the plaintiff at its height and to see whether his award of damages was on that basis wholly disproportionate, as the defendant submits”.

The Court of Appeal found that the trial judge erred in finding that the Plaintiff could not move her arm beyond a certain point, in light of the video evidence, and that he had erred in finding that at the time of the trial the plaintiff was still taking medication for her injuries. The plaintiff had accepted in cross examination that the medication that she was taking was the same as immediately prior to the accident. The Appellate Court took into consideration the fact that the collision itself was not a violent one and that there was modest damage to the Plaintiff’s car. The Plaintiff was not hospitalised and did not require immediate medical attention. The plaintiff had returned to pre accident levels of medication.

The Court of Appeal did note that that the plaintiff had undertaken approximately sixty sessions of physiotherapy and that her right shoulder had been manipulated under general anaesthetic and the affected area injected and that she had had a further subacromial injection. Further the plaintiff underwent an arthroscopic subacromial decompression and rotator cuff repair. It was accepted that she would continue to have reduced internal rotation but this was not expected to interfere with her day to day activities. Such a restriction was usually only relevant in the context of sporting activity.

The Court of Appeal reduced the award at first instance saying “The trial judge accepted that the plaintiff had suffered a significant injury and awarded her a total sum of €120,000 in respect of pain and suffering (€90,000 to date and €30,000 into the future). In all the circumstances that sum was wholly disproportionate to her injuries. Although they might have been characterised as significant in so far as they reflected a departure from the state of health which she had enjoyed prior to the accident, they are undoubtedly at the lower end of the scale ranging from the minor to the most severe. For my part I am satisfied that the award was disproportionate and excessive to the point that it should be set aside….To conclude, this is a case concerning injuries which can at best be described as relatively modest when considered in the context of the entire spectrum of personal injury claims. Adopting the approach set out above and thus giving all credit to the plaintiff for the credibility finding in her favour, the reasonable and proper award is in my judgment €50,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future”

Read the full judgement here.

Modest injuries should attract moderate damages

Has the Court of Appeal halted the perceived rise in Personal Injuries Damages in Ireland?

There have been two major changes to how we deal with Personal Injuries claims in Ireland in recent years.

Firstly The Courts and Civil Law (Miscellaneous Provisions) Act 2013 implemented new limits, which apply in Circuit and District Court cases in all proceedings issued after 3 February 2014. This was the first increase since 1991 and in respect of proceedings issued after this date, the monetary limit of the Circuit Court increased from €38,000 to €75,000 and of the District Court from €6,350 to €15,000. Notably, for personal injury actions only, the new monetary jurisdiction of the Circuit Court rose to €60,000.

New rules at District Court level provided for measures such as interim applications to Court for discovery and rulings in personal injury cases in respect of minors or persons with a disability.

Secondly the formation of the Court of Appeal in 2014, which the Chief Justice described as the “most important development” in the structure of the courts since the foundation of the State changed the landscape, allowing for greater access to justice in all matters. The formation of the Court also heralded an elevation of position of a number of experience High Court Justices and the appointment of a number of new replacements.

Increases in jurisdiction are usually associated with an increase in the award of damages. The appointment of a number of new High Court judges certainly added to the uncertainty as to what extent the rise might be.

It was only a matter of time before the Court of Appeal got hold of an assessment of Damages however.

In Payne v Nugent (Court of Appeal 2015/67) the court comprising of recently appointed appellate Judges Irvine, Ryan and Peart heard an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. In that case the court assessed general damages for pain and suffering to date in the sum of €45,000and pain and suffering into the future in the sum of €20,000. The Defendant/Appellant sought to argue that the award was excessive.

The Court of Appeal judgement was delivered by Irvine J. The Court set out the principles which guide the court when exercising its appellate jurisdiction, referring to the judgment of McCarthy J. in Hay .v. O’Grady1992 ILRM and referred to it in the following paragraphs

• Firstly, that an appellate court does not enjoy the opportunity of seeing and hearing the witnesses unlike the trial judge who hears the substance of the evidence and also observes the manner in which it is given and the demeanour of those giving it. The arid pages of transcripts seldom reflect the atmosphere of the trail.
• Secondly, if the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings regardless of how voluminous and apparently weighty the testimony against them may be given that truth is not, he advised, a monopoly of any majority.
• Thirdly, insofar as inferences of fact are drawn by a judge at first instance, it is open to an appellate court to substitute its own inferences. However, he cautioned against such an approach where those inferences were drawn from the judge’s assessment of the oral evidence.

The Court of Appeal set out the approach to be taken in assessing damages and referred to the perceived cap on general damages for the most serious injuries at €400,000. The Court had to consider whether the award in the instant case of €65000 general damages where the Plaintiff suffered from neck and back pain from which she had almost fully recovered was fair and reasonable?

The following passage shows how the Court dealt with the issue at hand.

“So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluate.

For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards payable to those who suffer more significant or what I would describe as middle ranking personal injuries such that a concertina type effect is created at the upper end of the compensation scale. So for example the award of general damages to the person who loses a limb becomes only modestly different to the award made to the quadriplegic or the individual who suffers significant brain damage and in my view that simply cannot be just or fair”.

The Court said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.

Damian McGeady, Partner, Lacey Solicitors.

“Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public”.

Irvine J in Fagan v Garda Commissioner & others [2014] IEHC 128

This is an obiter view given in the action where the innocent Plaintiff was knocked to the ground by riot police in a public order situation. The matter did not concern a road traffic accident. It did restate the position that Garda officers do owe a duty of care to other road users when driving, even in an emergency.

In Fagan the Defendants argued inter alia that the defendants did not owe a duty of care to the plaintiff as to the manner in which they exercised their public order function.

In support of the assertion the defendants relied inter alia upon the decision of The House of Lords in Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, the decision of Kearns P. in Lockwood v Ireland [2011] 1. I.R. 374 and that of Hedigan J. in L.M c Commissioner of An Garda and others [2012] ILRM 132. In further support the defendants relied upon Glencar Explorations v Mayo County Council (No.2) [2002] 1 I.R 84 in which the court concluded that a public authority could not be sued in negligence in relation to any decision made by it when exercising its statutory duties, except in exceptional circumstances.

Irvine J. rejected the defendants’ submission that by analogy the court should apply the reasoning in Glencar.

The court noted that the reliance of the Hill case did not afford such immunity from suit and noted that in that case Keith L.J. at para 59 stated precisely the opposite, saying “There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”

Irvine J. rejected that the court should conclude that there is some higher threshold which the plaintiff must establish, such as malice or recklessness, so as to succeed in liability.

In Fagan the court dismissed the claim on the circumstances.

Legislation

Section 87 of the Road Traffic Act 2010 provides that the requirements, restrictions and prohibitions of the Road Traffic Acts relating to driving and use of vehicles do not apply to emergency vehicles where the use does not endanger the safety of road users.

It is important to note however that this affects the drivers of the emergency vehicles criminal liability rather than civil liability.

The Courts will of course hold that the social utility of saving life or property or dealing with crime is a factor which merits being taken into consideration when one applies the test of the “reasonable person” which is the test which underlies the standard of care in negligence.

Emergency drivers do not enjoy blanket immunity however.

Case Law

In the High Court (unreported June 1993) case of Strick v Treacy the Plaintiff was driving her car on the Tallaght By-Pass approaching a junction controlled by traffic lights which were green in her favour. A Garda car, which was escorting a fire engine on its way to a school fire, travelled through red lights with its flashing lights on. It transpired that the fire engine was some considerable distance behind the Garda car (the Garda vehicle having failed to stay close so to speak to the fire engine it was escorting). The fire engine then, also with it’s flashing lights on, emerged in breach of traffic lights crossing the path of the Plaintiff who collided with same.

O’Hanlon J apportioned liability three ways.

He held that the Garda driver should have done more to halt the traffic, particularly having regard to the large gap that he had allowed to open up between him and the fire engine.

The driver of the fire engine was negligent because he had a clear unobstructed view for a long distance to his right when he neared the junction.

The Plaintiff was negligent as the Court held that she should have been alerted to the presence of the Garda on the highway and should have been “doubly cautious” when she saw the large fire engine approaching from her left with its lights flashing.

See also O’keefe v Ladola & Dublin Corporation, Circuit Court 12th January 2000, where an emergency driver was held liable in negligence.

What grounds must insurers have to allege fraud in personal injury actions?

In Saleh -v- Moyvalley Meats (Ireland) Ltd, Cross J held that the plaintiff had not deliberately exaggerate his claim. The defendant insurers sought to allege that he had. One medical expert retained by the Defendant had concluded that the plaintiff was “untruthful in relation to his disability”.

The Judge considered whether he should award aggravated or exemplary damages. Aggravated damages compensate the victim of a wrong for mental distress (or ‘injury to feelings’) in circumstances in which that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant’s conduct subsequent to the wrong.

According to the Law Commission REPORT ON AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES (2000) “The aim of exemplary damages is two-fold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words “to teach a wrongdoer that tort does not pay”. An exemplary damages award may also be intended to vindicate the rights of the plaintiff, or, as Lord Devlin stated to vindicate the strength of the law. It has the additional, incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution, the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach“.

In the Saleh case Judge Cross considered the test of the reasonableness of the Defendant’s approach saying “I fully accept that it is reasonable to give parties in civil litigation latitude to make their case in a robust manner. Indeed, such latitude is necessary to enable the parties to join issue on what is between them. But as I stated in Lackey, the courts must be vigilant in not allowing irresponsible or overenthusiastic invocations of such pleas. It is not new or startling to suggest that any allegation of fraud is made on peril and should not be made unless, at the very least, there is strong evidence to sustain it. The only thing that might be considered startling is that this antique rule should seemingly be forgotten“.

The Court held that the defendants conduct of the action was not irresponsible or unreasonable.

The Court did caution that were it not for the report of the medical expert, it would have concluded that the Plaintiff was entitled to aggravated or exemplary damages.

Read the judgement here

Damian McGeady

Its a supreme Court of Missouri case, so the usual disclaimer applies.

The case of Scottsdale Ins Co. v Addison Ins Co et al is an interesting Insurance case.

The matter arose out of a very tragic road traffic accident resulting in the death of a driver, whose family sued for damages.

The Primary Insurer insured to a $1,000,000 limit. The excess insurer insured to a $2,000,000 limit.

A demand was made by the deceased’s family to settle the cast for $1,000,000. The primary insurer refused. It was a costly refusal. The Primary insurer later settled the case for $2,000,000. The excess insurer (Scottsdale) issued proceedings on the principle of equitable subrogation as a basis for an excess insurer to recover from a primary insurer’s wrongful refusal to settle a claim.

The Supreme Court of Missouri upheld the Court of Appeals decision to reverse the trial Judge’s judgement in favour of the Primary Insurer, recognising that the excess insurer could recover in equitable subrogation for the failure of the Primary Insurer.

Here is a report on the case

In the case of McCaughey v Mullan, Mr Justice O’Hara found that although the pedestrian was drunk and presented a danger to herself on the road, that despite the fact that the Defendant driver was not speeding, he had driven at a speed which was too fast and did not allow him to stop within the distance he could see ahead.

The Defendant sought to argue that the Plaintiff was guilty of contributory negligence to a large extent (90%), while the Plaintiff’s representatives accepted that the Plaintiff contributed greatly to the accident by being drunk in the middle of or on the Defendants side of the road at night, they argued that the extent of that contribution could not exceed 50%.

There was much emphasis upon The Highway Code and in particular Rule 126 which states:

“Stopping Distances

Drive at a speed that will allow you to stop well within the distance you can see to be clear”

Further

Article 51(6) of the Road Traffic (NI) Order 1995 provides:

“A failure on the part of any person to observe any provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Road Traffic Orders) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.”

The Defence sought to persuade the court that drivers cannot be asked to strictly adhere to the provisions of The Highway Code. The Judge rejected the argument finding “The fact that this honest sober driver was unable to stop leads me to conclude that he was driving too fast – otherwise it is probable that he would have been able to stop within the distance he could see to be clear.”

The Court considered the issue of the Plaintiff’s contributory negligence, referring to the Judgement of Denning LJ in Froom v Butcher [1975] 3 All ER 520. Denning LJ said

“Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.”

The court acknowledged that until 1948 a plaintiff who was guilty of contributory negligence was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury. That was changed in Northern Ireland by section (2) 1 of the Law Reform (Miscellaneous Provisions) Act (NI) 1948 which provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”

The Court held that in the instant case the Plaintiff was a road user who failed to look after her own safety, and for those reasons reduced her damages by 60%.

Read Full Case Here

Damian McGeady, Partner

State Claims Agency vows to Appeal decision of Irish High Court to apply a 1% multiplier to a future loss claim.

In a recent decision the Irish High Court varied the level of deduction on a large future loss claim from the traditional 3% rate to 1% per annum.

In a claim for significant loss damages for future loss are normally awarded in a lump sum although there can be provision for periodic payments. Where damages are awarded in a lump sum the assessment requires the conversion of future cash flows into a capital sum.

In those circumstances experts would advise the Courts to apply a multiplier approach. A multiplier based on the expected duration of the loss is applied to an amount representing the annual loss, (the multiplicand) producing a capital figure.

In claims in the Republic of Ireland the multiplier is the number of weeks of loss which is discounted to account for the early receipt of the lump sum. The multiplier is adjusted downwards to take into account the time value of the money. For example if the loss is not expected begin until sometime into the future there must be an adjustment of the discount for accelerated receipt. A further and separate downward adjustment would be made to reflect the contingencies of life. The multiplier should also take into account contingencies and the rate of return on investment of the lump sum in the future. These principals apply to both future expenses and loss of future earnings.

There are certain assumptions that underlie the multiplier to include an assumption as to what extent investment returns will exceed wage inflation over the period of a loss.

In Ireland the leading case to date on the imprecise deduction made by Courts when calculating special damages to take account of future uncertainties is the case of Reddy .v. Bates. In fact, the discount applied is commonly known as “Reddy .v. Bates Deduction”.

The deduction in Reddy .v. Bates has been traditionally set at a 3% rate.

In the recent case before the Irish High Court of Russell V HSE, Mr Justice Kevin Cross said that in setting the level of the award, he would assume a rate of return from investing the money of 1% per annum.

In the case the Court was asked to assess damages towards the care for the rest of the life of a boy who had suffered brain damage at birth in a Cork Hospital.

The case saw detailed argument on the rate or return available to investors at the moment. Both sides relied on the evidence of a number of economic experts and the key issue was that the yields on relatively low risk investments such as Government Bonds are now at historic lows.

The Defendant had argued that by investing in higher risk areas such as Equities, the traditional 3% return was still achievable.

The Plaintiff’s case was that the Court had to take cognisance of the low return now available on safer investments.

This issue was recently the subject of an assessment of the English House of Lords in the case of Wells .v. Wells. In that case the Lordships had to consider whether the appropriate investment returns could be based upon Equities which involved significant risk or the Index Linked Government Securities (which are much safer and which provide a lesser return to the investor). It was held by the House of Lords in a unanimous decision that the latter approach was the appropriate one.

In that case, Lord Steyn said “The premise that the Plaintiffs’ who have perhaps been very seriously injured, are in the same position as ordinary investors is not one that I can accept. Such Plaintiffs’ have not chosen to invest; the tort and the consequences compel them to do so.”

The Court in that decision went on to say that by investing in Equities an ordinary investor takes a calculated risk which he can bear in order to improve his financial position but that the typical Plaintiff requires the return from an award of damages to provide for the necessities of life.

In Ireland there is no equivalent of the Index Linked Government Securities. In the Russell case the Plaintiff did ask the Court take cognisance of the low return now available on safe investments and in particular Index Linked Government Bonds from larger economies which are currently offering no interest rate return to their investors.

Mr Justice Cross put heavy emphasis on this and further dismissed the argument that public policy would dictate the fact that the state was the Defendant should be taken into account. He said “Arguments on public

policy, such as this, are in my view, more suited to lounge bars of Golf Clubs than to the Courts of Law”.

The Director of State Claims Agency has confirmed that the decision of Mr Justice Cross would be Appealed. He estimated that applying the 1% rate instead of the traditional 3% rate would increase the cash cost of meeting claims made on the State by about One Hundred Million Euro per annum or One Billion Euro over the next decade.

The decision of course has major implications for Insurance Companies and there is a suggestion that the decision could lead to a sharp increase in the costs of claims and potentially in the premiums charged to customers.

The written Judgment is awaited in the case of Russell V HSE.

Damian McGeady 23rd December 2014

Following pressure from consumer groups, it has been revealed that the FCA are currently drawing up new rules to ensure renewal quotes on insurance policies include previous premiums as well to make customers aware of when the cost of their policy is increasing.

Another idea being studied is to make insurance companies come clean about introductory discounts on premiums.

In many cases, customers are charged less in the first year of a policy, as an incentive to switch.

But insurance companies could be forced to tell consumers what the premium is likely to rise to when that discount expires.

More on this story can be read at here.

S.Major, Lacey Solicitors

Barry v Dunnes Stores Clonmel (Limited)

In dismissing the Defendant’s argument that the Plaintiff had acted in a manner contrary to her safety training and had caused the injury to herself, Irvine J stated:

“Every employee must take care for their own safety… However, the fact that an employer may train its staff at the time of recruitment and intermittently thereafter regarding the risk of injury to their back is significantly negated if, in daily practice, the methods for moving goods safely as advised in the course of training are not deployed by employees and managers do not enforce compliance with training and safe practice. In this regard I am satisfied from the evidence of the plaintiff… that it was not uncommon for trolleys to be stacked in the manner in which they were stacked on the day of the plaintiff’s injury.”

The plaintiff was not fully absolved of liability however, and in assessing whether there was contributory negligence, the court ruled:

“Regardless of these facts the Plaintiff should have known not to try to lift down the box which caused her injury. She did this without ascertaining its weight. Had the plaintiff ascertained its weight by getting a step ladder, albeit it that this may have taken some minutes, I think this injury would not have happened. Alternatively she should have recognized the risk of taking any load from over head height and she should have refused to do so. In either set of circumstances the plaintiff would not have been injured. Accordingly I have decided that she must bear 30% of the liability for her Injuries.”

The full judgement can be read here:

S.Major, Lacey Solicitors

Byrne [A minor] & anor -v- Stephen Bell Trading as Bumblebees

Cross J ruled that the defendants, who owned a children’s play area, were not liable for injuries sustained by a child on their premises.

The plaintiff, bringing the action through his next friend, his father, alleged that the injuries sustained by him during a visit to the play area were caused by reason of a negligence of the defendants in the layout of the premises and their failure to have any adequate supervision or intervention to prevent danger, or the accident such as occurred.

In dismissing the action, Cross J stated: “You cannot ensure against all mishaps or accidents to young children. Accidents, injuries, do happen from time to time and do so without any fault. Play areas such as Bumblebees are an important part of the development of children who are, as in this case, generally far safer there than in some regimes where prudent parents will allow their children to play entirely unsupervised, for example, gardens with trees.”

The full judgement can be read here:

S.Major, Lacey Solicitors