Personal Injury and Fatal Accident Brief
April 2011
In this month’s bulletin, we consider a recent English case where the Claimant
appealed against dismissal of his claim arising out of “teambuilding” style games
(Uren v Corporate Leisure (UK) Ltd and Ministry of Defence). The action was remitted
for retrial.
The claim arose out of a “Health & Fun Day” organised by the Claimant’s employers, the Ministry
of Defence (MOD). The last of the games was a relay race which involved getting into an inflatable
rectangular pool. The pool belonged to Corporate Leisure (UK) Ltd (CL). When it came to Mr Uren’s
turn he launched himself over the side of the pool in a continuous movement, head first with his
arms outstretched ahead of him. Tragically he hit his head on the bottom of the pool and broke his
neck.
At first instance, having accepted the expert evidence of Professor Ball that a very small risk of
serious injury existed, Field J concluded that, bearing in mind the social benefit of the game, the
Defendants were not in breach of their duty of care, although the risk assessments were
inadequate. The Claimant appealed to the Court of Appeal. MOD cross appealed on the point that
their risk assessment was inadequate.
Held
1. The Defendants were under a duty to participants in the game to ensure that they were not
exposed to an unacceptable risk of serious injury whilst taking part in it.
2. The failure to carry out a proper risk assessment can never be the direct cause of an injury.
There will however be some cases where it can be shown that the failure to carry out a proper
risk assessment has been indirectly causative of the injury. The Judge should have considered
and decided what a suitable and sufficient risk assessment would have concluded.
3. The Judge’s reliance on the evidence of Professor Ball, in preference to two other experts,
was not satisfactory. A fuller and more critical examination of the views of the experts should
be carried out.
4. MOD had a non-delegable duty to carry out a suitable and sufficient risk assessment of its
activities. In some circumstances, an employer may be able to rely on the risk assessment of
its contractors but in this instance, it is clear CL did not carry out a suitable or sufficient risk
assessment and it could not be sensibly argued that the MOD could properly rely on it.
5. The case was remitted for retrial by a different High Court judge, with the issue “limited to
the question of the degree of risk of serious injury entailed in the game as played and
whether that degree of risk was acceptable in the light of the social value of the game.”
Comment
As the Court of Appeal did not overturn the first instance decision in this case, it remains open to
the judge who hears the retrial to uphold the decision in favour of the Defendants. The judge will
however need to set out very clearly the findings on the risk of serious injury that was involved in
the game.
Defendants and their insurers should note the emphasis on risk assessments. Whilst accepting that
they are not a panacea, Lady Justice Smith stated “I would not wish judges to have the idea that
risk assessments are unimportant and can never affect the outcome of a claim.” It has also been
confirmed that an employer’s duty to carry out a risk assessment is non-delegable. However, if a
thorough risk assessment in relation to an activity has been carried out by a contractor, a less
detailed risk assessment by an employer may be sufficient.
We are always looking for feedback so please feel free to email us your comments and/or
suggestions for this bulletin.
Kelly Wong
Meiling Yip
Partner
Partner
[email protected]
[email protected]
Kennedys
11/F Hong Kong Club Building
3A Chater Road, Central
Hong Kong
T +852 2848 6300, F +852 2848 6333
PERSONAL INJURY AND FATAL ACCIDENT
CASE SUMMARY No. 113 (Mar 2011)
Plaintiff’s Name
Sex
Age at DOA/
Trial
Chiu Wen Hsien
(邱文賢)
M
62 / 67
DCPI 1482/2009
DoA: 13/07/2006
Rai Rana Magar
Pabitra and Rai
Rana Magar
Namrata, personal
representatives of
the estate of Rana
Magar Mohan
Jung, deceased
M
44
Pre-accident
Occupation
Nature of Injury
Construction site
worker
- Fracture right
clavicle
resulting from
bricks falling
from above
- Complaint:
dizziness and
declining
olfactory
perception after
concussion
syndrome
- Treatment:
occupational
therapy and
medical
treatment
Construction site
worker
Fatal accident
Multiplier
Award for
PSLA/ Total
Award
2
$200,000 /
$422,592.50
13
$150,000 /
$1,403,629
(25% CN
deducted)
Award for
Loss of Future
Earnings
Date of
Judgment
Judge/
Court
$48,000
24/02/2011
(Date of
handing
down:
02/03/2011)
Master G
Own
$801,000
24/02/2011
(Date of
handing
down:
07/03/2011)
Deputy
High Court
Judge
Burrell
HCPI 398/2008
DoA: 12/06/2005
Page: 1/ 2
PERSONAL INJURY AND FATAL ACCIDENT
CASE SUMMARY No. 113 (Mar 2011)
Plaintiff’s Name
Wu Leung Kui
Jacky
DCPI 1154/2008
Sex
M
Age at DOA/
Trial
30 /37
Pre-accident
Occupation
Nature of Injury
Direct Sales
Representative
- Multiple injuries
including neck,
mid-cervical
region, peeling
of skin, redness
over the right
shoulder and
left leg injuries
- Complaint:
persistent neck
pain and
psychiatric
illness
- Treatment:
orthopaedic
therapy,
antidepressants
and hypnotic
drugs
Multiplier
--
Award for
PSLA/ Total
Award
$215,000 /
$587,632
Award for
Loss of Future
Earnings
Date of
Judgment
--
24/12/2010
(Date of
handing
down:
07/03/2011
Judge/
Court
- END -
Page: 2/ 2