Schoolboy Gymnast Sues Coach for Negligence

 As reported on Meridian South News 30^th October 2006

A schoolboy gymnast, Josh Harcourt, who was left paralysed after a complicated move went wrong, began a multi-million pound damages claim against his former coaches. Josh Harcourt from Kent broke his neck performing a difficult forward somersault. He was training at the time in preparation for the 2004 British Championships. Lawyers claim the Coaches training him were negligent, but they deny liability.

In recent newsletters we have raised a number of cases, such as the Stringfellow and Luminar Leisure cases, where the issues of negligence and vicarious liability have been prominent, so I thought it time that we explored the issue of negligence and liability in a bit more depth.  These and other cases are listed at the end should you wish to review them in light of the information contained in this article.

What is negligence?

Negligence is a ‘Tort’, and a ‘tort’ is defined as a breach of a legal duty, other than a legal duty under contract. Where a duty in contract is owed to the other party to the contract a duty in tort is owed to people generally (ie people who you may not know). Where a contractual obligation or duty can be determined by reference to the contract (provided it is clearly worded), a duty in tort is determined by the law. With a tort also comes a liability for damages, which we will discuss a little later.

Physical restraint for example is an activity that can be regarded as hazardous. As such, individuals can be exposed to the risk of harm, either operationally when using physical restraint, having it used upon them and also in training.

In light of the recent case we’ll take a closer look at where negligence can arise in a number of different circumstances during physical instruction.

For example, it can arise as the result of:

a)      The actions of delegates / staff

b)      The actions of instructors / coaches

c)       Unsafe facilities

d)      Unsafe training methods

 

Example

I was recently instructed as an Expert Witness, in a case where a woman had been injured during a breakaway training course that she was participating in. The background to the injury was as follows:

·         The woman was 52 years old.

·         She was and at the lower end of the skill and ability range in terms of her capability to do the physical skills asked of her;

·         She arrived at the training session wearing high-heeled shoes.

·         When the instructor challenged her about her footwear she replied that those were the type of shoes she wore to work and as the course was meant to teach her to defend herself at work she presumed she would be able to wear what she normally wears to work.

·         The instructor agreed to teach her on the basis that she accepted any liability for injury she may incur as a result of her wearing high-heeled shoes.

·         During the training she was partnered with one of the trainers, a man in his mid 30’s, six-feet tall and physically fit.

·         The trainer pushed her to ‘test’ her balance and she lost her balance due to the shoes she was wearing and fell backwards hitting her head against the wall and her backside on the floor.

·         Due to the fall she damaged her coccyx and neck, which resulted in her taking time off work and being in continual pain.

·         She sued the training provider for negligence.

·         The training provider denied negligence on the basis that she agreed to do the course knowing that she may be injured.

What do you think? Answer at the end.

What makes for a successful claim for negligence?

For a claim of negligence to be successful 3 key elements must be established:

1.      Was there a duty of care? (i.e., did the person or organisation at fault, owe a legal duty of care to the person injured?)

2.      Was there a breach of that duty of care by the person or organisation at fault?

3.      Did that negligence or breach of duty cause the injury or harm?

We will look at each of these separate issues in a little more depth below:

1. Duty of Care
A duty of care is said to be owed to: “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

This principle, known as the ‘Neighbour Principle’ was first laid down by Lord Atkin in the case of Donoghue v Stevenson [1932] AC 562 (at 580), where it was held that the manufacturer of a bottle of ginger beer owed a duty of care to the person who eventually drank it.

Later cases such as the Caparo Industries plc v Dickman  [1990] All ER 568, have identified the principle so that will be a duty of care if there is:

1.       Foreseeable damage;

2.       Legal proximity between plaintiff and defendant;

3.       It is just and reasonable in all circumstances to impose a duty of care.

Therefore, any trainer delivering a physical skills training course, be it in physical restraint or self-defence / breakaway, has a direct duty of care to those persons being instructed by him / her. As a result the trainer must assess a foreseeable risk / damage that could occur during the training and take suitable and sufficient means to either eliminate them or reduce them to their lowest possible level where elimination cannot be achieved.


2. Breach of Duty

If establishing that a trainer owed the trainee a duty of care the trainee would then have to prove that the trainer has been legally careless. This will establish that the trainer is in breach of the duty to care.

For example, in a physical skills training session a duty of care is automatically owed to the trainees by the trainer so should a delegate become injured it could be argued that a breach of duty or care has occurred.

3. Damages

If negligence can be established, the person injured is entitled to receive damages or compensation of an amount intended to put them into the position they would have been in (in so far as money can do that) had the negligence not occurred. This is different from contractual damages, which are intended to put the person in the financial position they would have been in but for the breach.

Pain and suffering, financial loss (recent and future) and loss of chance can all be compensated for. Loss of chance means a realistic prospect of success in sporting competition, which may have been destroyed by the other party’s negligence.


Case law

Defences and Contributory Negligence

However, what about the old legal maxim that you accept the risk of injury when you step into the sporting arena – “it goes with the territory” (volenti non fit injuria).

Yes, up to a point. The key question is – what was the risk or danger that you voluntarily accepted when you decided to take part? Arguably – in gymnastics you might accept the risk of a broken ankle if you land awkwardly on the beam as you land your back somersault but not the risk of a broken ankle if the beam collapses because your coach failed to set it up properly.

You might accept the risk in badminton of your inexperienced partner landing a smash on your head but not the risk of breaking your left leg after slipping on orange juice left on the sports club floor after the previous session by the aspiring 6 year old tennis player. These things happen.

In physical restraint training you might accept the risk of bruising from certain dynamic aspects of the training, but not the risk of having your arm broken during a training course.

A company owes a duty of care to its staff and others and has to ensure, so far as is reasonable and practicable, that it promotes that duty of care, amongst other issues, by way of a safe working environment and working practices.

In another case I know of a 3^rd degree black belt martial arts instructor (high grade) was demonstrating the power of his punch on a yellow-belt (low grade) student. This involved the instructor hitting the student with a high degree of force, based on the need for the student to be able to “build-up his resistance to pain”. The punch resulted in the student receiving a ruptured spleen. The instructor’s defence – we’ve always taught this way and the student had agreed to be hit.

Maybe so, but did he agree to have his spleen ruptured – I think not.

A physical skills instructor owes a duty of care to those persons in their care that they will be training.

This extends to:

·         Ensuring that the equipment used is in good order and not in need of repair,

·         Any foreseeable hazards or risks have been identified, and that

·         Suitable and sufficient risk control / reduction measures have been implemented to either eliminate the risk or,

·         Where elimination cannot be achieved, to lower any foreseeable risk to it’s lowest possible level, this includes

·         Monitoring and reviewing the systems of skills taught, and

·         Modifying, changing or replacing them where necessary,

·         The syllabus used is lawful and competent, and

·         That the delegates are fit and able to undertake the training, including,

·         Wearing the appropriate clothing and footwear.

Another key defence commonly used is the defence of ‘Contributory Negligence’, in other words the injury or damage caused was partly the fault of the person who caused it.

The Law Reform (Contributory Negligence) Act 1945 provides that:

“Where any person suffers damage as the result 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 an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

This type of defence may be raised by the defendant in any action taken against them for negligence. In essence, the defendant is counter-claiming that although he or she has been negligent, the resulting damage is also partly the fault of the claimant.

In Boyle v Kodak Ltd [1969] 2 All ER 439, the Court said that an employer could not exonerate itself from liability for a breach of statutory duty unless the accident was completely the fault of the employee.

In another case that I was involved with as an Expert Witness involved a martial artist who was stabbed during a training session.

In this case the martial arts instructor was teaching students how to disarm someone armed with a knife. To add ‘reality’ into the training session the instructor decided to demonstrate how effective the techniques were against a person armed with a real knife. During the demonstration the student who was tasked with holding the knife was stabbed when the instructor executed disarming technique on him. The student sued the instructor for negligence and the instructor denied negligence based on the fact that the student had ‘agreed’ to take part.

The issue of contributory negligence was not an issue here as the fault lay with the instructor not having considered the duty of care owed and failing to take reasonable steps to eliminate or reduce any foreseeable injury.

To take this aspect further, I have also come across teaching staff that have been taught how to disarm children at school who may be armed with knives. In one school this has involved the teaching staff undertaking training courses run by a local martial arts instructor.

Question: Who would be liable if a child or a member of staff got stabbed, the member of staff for agreeing to do what they have been taught, the headteacher of the school for agreeing to teach the staff such skills, the local education authority who may have agreed that the courses could be run, or the martial artist for teaching the skills?

The following recent case of Lister v Hesley Hall has a major bearing on the issue of contributory negligence and vicarious liability and may provide you with answers to the above.

Lister v Hesley Hall
The recent House of Lords decision in Lister v Hesley Hall represents a major change in the law of vicarious liability. Previously, the well-established law stated that the more heinous the employee’s act, the less likely it could be considered to be something for which the employer could be liable, on the grounds that it was less likely to be "in the course of employment". The Lister case seems to be a reversal of that view, and may have a great many ramifications, some of which are yet to be revealed.

This much can be gathered from the facts of the case, which consisted of a series of personal injury claims brought by former pupils of a school where they had been systematically abused by the housemaster (G). The claim was made against the school, on the grounds that the school was vicariously liable for the actions of G and, therefore, liable for the personal injury inflicted upon them. It was recognised by the House of Lords that G’s actions were an abuse of the special position in which the school had placed him (to enable it to discharge its responsibilities).

Only by placing him in that position was G able to carry out the abuse, and he could not have done so had the school not placed him in a position of trust. The school was therefore, vicariously liable for those acts.

The Lords decision in the above case stressed that attention must be given to the close connection between the acts of the employer and the duties he is engaged to perform. The decision took into account the fact that the torts had been committed in the time and on the premises of the defendants while the warden had also been busy caring for the children.

This decision has now created a new benchmark in an Employer’s liability with regard to the acts of its employees drawing on the close connection between an employed person’s position and the acts in which he is engaged to perform.

Whilst this decision is likely to have an immediate and substantial impact on those organisations who care for the young and the vulnerable – a wide ranging group including; schools, nursing homes, prisons, colleges, sheltered accommodation, etc., - the overall effects are likely to be wide ranging.

A consideration of the reasoning behind the judgement suggests that an employer may be liable for any wrongful acts committed by an employee (for example breaches of the Human Rights Act, Health and Safety Statute, etc.,) if it was the fact of his or her employment which provided the opportunity for the act to be committed.

Therefore, employers should consider carefully whether their organisation could place employees in this kind of position, identify any risks, and identify the best means of guarding against those risks.

Therefore, if employers expect their staff to restrain without proper (or possibly incompetent and / incorrect) training, guidance, and in the absence of a suitable and sufficient risk assessment, they run the risk of being held responsible for any liabilities that arise out of their staff’s act’s or omissions (see Article on 'Minimum Force').

The only way therefore, to reduce that liability is through the undertaking of suitable and sufficient assessments of risk and by the implementation of appropriate and effective training. Expecting staff to use their common law rights in absence of the above can only increase an employer’s vicarious liability.

Answer to the Example.

The training provider was found guilty of causing the harm on the basis of the fact that:

1.      A duty of care was owed to the woman;

2.      This cannot be negated by the trainer passing responsibility onto her;

3.      She should have been prevented from training due to the fact that she was wearing inappropriate footwear;

4.      The fact that she wears those type of shoes to work is a matter for her employer to address and the trainer has a responsibility to ensure that she is fit and able to do the training and that she is wearing the appropriate clothing to enable her to undertake the activity safely. This cannot be passed on by means of a delegated liability back onto her;

5.      It should have been reasonably foreseeable that pushing a woman wearing high-heels could have resulted in her losing her balance;

6.      The harm likely to be caused to anyone losing their balance and falling over should also have been reasonably foreseeable to a responsible person.

In this case the training provider admitted liability and an out-of-court settlement was reached of £16,000.00 damages in favour of the woman’s action against the training provider.