September 2008 Case Law Reports
Harris –v- Perry and another (2008) EWCA Civ 907 31st July
Duty to child on bouncy castle.
The Perrys had hired a bouncy castle for their triplets’ birthday party. The castle was suitable for adults as well as children. It was pitched on a school playing field outside their back garden. Whilst playing on the castle Samuel Harris was struck on the head by the heel of a much taller and older boy performing a somersault. Samuel suffered a depressed skull fracture and subdural haematoma. Samuel Harris’ mother sued the Perrys.
The original Judge held that hiring a bouncy castle required uninterrupted supervision and that it was a breach of duty to allow children of different sizes to play together on it.
Mr and Mrs Perry appealed against the decision. They argued that the Judge had applied too strict a test in holding that the Perrys’ duty of care was to maintain a continuous watch on the castle and furthermore, that it was wrong to hold that Mrs Perry could have stopped the somersault in time to prevent the accident. The Court of Appeal agreed. It was held that it was impossible to preclude all risk that, when playing together, children might injure themselves or each other. It was quite impractical for parents to keep children under constant supervision and it would not be in the public interest for the law to impose a duty upon them to do so. The standard of care required in the circumstances was that which a reasonably careful parent would have shown for her own children, or, which was the same thing, to act as would any reasonable provider and supervisor of that kind of inflatable for use by young children.
Gravil –v- (1) Richard Carroll (2) Redruth Rugby Football Club (2008) EWCA Civ 689 18th June
Vicarious liability.
The First Defendant (C) had been playing as a second row forward for the Second Defendant (R) in a rugby match against another rugby club, for which the Claimant (G) had been playing. After the whistle had blown, C had punched G in a melee and had caused him injury. C was held vicariously liable for the assault and G was awarded damages.
The Court considered that C’s wrongful act was so closely connected with his employment by the rugby club as a professional player, that it would be fair and just to hold the rugby club vicariously responsible for the assault he committed. The melee had been part of the game and not independent of it. The throwing of a punch after the whistle could fairly be regarded as an ordinary incident of a rugby match.
(1) Wasim Ul-Haq (2) Samara Khatoon (3) Zahida Parveen –v- Anita Shah (2008) EWHC 1896 (QB)
Collusion in making fraudulent claims.
Anita Shah (S) appealed against a decision refusing to strike out claims made by Ul-Haq (U) and Parveen (P). U and K had issued claims against S for personal injuries allegedly sustained in a road traffic accident when the car in which they claimed to have been travelling collided with a car driven by S. S had admitted liability for the collision but issued a counter-claim as she believed that K had not been in the car at the time of the accident and claimed damages for deceit from U and K and the striking-out of U’s claim because they had lied about K being a passenger.
The Judge found that K’s claim was fraudulent and that U had conspired with K to present a fictitious claim that K had been present. However, he found that a Judgement in favour of U’s seemingly genuine claims would be safe and dismissed S’s counter-claim. He awarded damages to U but held that due to their deceitful conduct they should pay two-thirds of S’s costs of defending their claims.
The Appeal Court held that participation in another party’s attempt to make a fraudulent claim was a serious breach of the overriding objective of the Civil Procedure Rules but the lies relied upon had no substantial impact on the Court’s ability to resolve the genuine claims that could be proven. It was therefore not appropriate to strike the claims out and the Judge had ensured that those responsible for making a fraudulent claim had effectively forfeited their genuine claims to any damages. Moreover, it had exposed them to a significant liability to pay costs which had justly reflected the seriousness of their breaches.
R (on the application of Mohammed) –v- Criminal Injuries Compensation Appeal Panel (2008) EWHC 1733 (admin)
The Claimants (M) applied for Judicial Review of the decision of the CICA panel to refuse their application for compensation under the Criminal Compensation Scheme. M were the widow and children of a man (X) who had died as a result of stabbing injuries. Following X’s death, M had made applications for compensation under the CICA scheme. The CICA had refused to make any award on the basis of X’s conduct before and during the incident that had resulted in his death. The panel found that X, having been angered by an argument in a house, instead of leaving the scene had remained outside the house and summoned reinforcements who came armed with a weapon to continue the argument.
M’s application was refused. The panel had found that X’s conduct was not just foolish and unwise but self-evidently culpable so as to disentitle M from compensation under the Scheme. His actions were deliberate and were not those of a man who was the subject of an unprovoked violent attack. They were the actions of a man calculated to produce a situation in which violence would occur. In those circumstances the fact that X got more than he bargained for was unfortunate, but it did not leave M with a claim under the Scheme.