In an increasingly litigious society, and with a wider number of sports available to the public, insurers need to be aware that cases involving sports injury are inevitably on the increase, says Darren Gray
One of the classic fall backs of any defendant insurance company is the old adage 'accidents simply happen'. But as highlighted in the recent high court decision of Hopkins vs (1) Pullen and (2) Taylor t/a Ippon Judo Club, courts the length and breadth of the country have accepted this line of reasoning and are beginning to take a more robust approach to personal injury actions, and in particular those of a sporting nature.
The case in question involved a Mr Hopkins, who, as described by Mr Justice Holland: "In a commendable spirit of adventure... decided to indulge, for the first time in his life, in the sport of judo." As background, during his first lesson, Hopkins, a complete novice, was introduced to one of the more basic manoeuvres. Having seen the manoeuvre demonstrated several times, Hopkins then attempted to execute the move with a fellow novice. While undertaking this, Hopkins fell awkwardly, breaking his right clavicle in the process.
Unfortunately for all parties concerned, despite undergoing several operations, the 48-year-old claimant's clavicle failed to re-unite. As a result, Hopkins was unable to return to work, and consequently, he looked to reclaim his losses from the defendants. His pleaded claim was in excess of £200,000, but ultimately damages were agreed, subject to liability, to the sum of £120,000.
Hopkins' claim was based on negligence following a breach of a duty of care. Specifically, Hopkins claimed that the club had failed to provide a sufficient warm up period, or adequate instruction about, and supervision of, the intended manoeuvre.
Quite interestingly in this case the defendants were judo practitioners of immense experience. Steve Pullen, in particular, was described by the court as: "An exceptional figure in the world of judo, having been involved in the sport for over 50 years. His expertise as a coach is beyond question." Yet, with a significant sum of money at stake, Pullen's expertise was brought into question before the High Court.
Assisted by additional experts from the world of judo, the Court assessed the factual evidence and concluded that the defendants had sufficiently discharged their duty of care. The Court concluded that by showing the claimant the manoeuvre at least two or three times and by being no more than two feet away from the claimant and his opposite judoka during the execution, the defendants had demonstrated "Ample dedication in putting across the essentially simple task that the basic judo manoeuvre involved."
Concerns within the insurance industry have been mounting as this kind of litigation has become increasingly commonplace within sporting circles. There is a feeling within the sports specialist team at Davies Arnold Cooper that this recent decision represents a watershed.
Supervision and training has, for many years, been a key concern for employers, to ensure the health and safety of their employees. While not specifically statute bound like employers the general principle has remained the same for sports and health clubs. That is members of the public must be reasonably trained and supervised when carrying out an activity of a sporting nature.
Whereas previously the traditional mindset held that accidents simply do happen, more recently we have seen a significant upturn in the number of sports related cases being tested before the courts.
Rather unsurprisingly, this trend seems to correspond with an increasing public inclination, and awareness of their ability, to pursue such claims. This is thanks in no small part to the self perpetuating media speculation on our expanding compensation culture.
With the ability of a claimant to transfer the financial risk to a solicitor and insurer by means of conditional fee agreements and after the event insurance, now well publicised, members of the public do seem more inclined to pursue such actions.
When you then consider there are some 29.7 million sports injuries in the UK each year alone, costing an estimated £997m in treatment and absenteeism, according to the Sports Council, the increase in actions pursued as a consequence of sporting injuries appears inevitable.
This is demonstrated in recent years by the number of high profile actions that have come to the public eye. Cases such as Holmes vs Muscat and Wolverhampton Wanderers FC - a case involving a professional footballer whose potentially lucrative career was ended by a bad tackle.
Indeed there have been countless cases brought by professional and amateur alike, from snooker players for their inability to play at the highest level, to accident related cases involving fun runners, amateur footballers, mountain bikers and even novice tobogganists.
Within sporting circles, it is now commonplace for people to try and apportion blame (and thus loss) to someone. Consequently there is a distinct requirement for specialist insurers and solicitors to defend such actions.
This area of law is growing rapidly, and insurers need to ensure they have the necessary tools to effectively rebut such actions, such as specialised experienced departments and a network of expert contacts.
While a commercial approach should always be considered, for a majority of cases, insurers should refrain from the habitual "nuisance payment" approach, as many claimants will in fact find the balance of probabilities against them from the beginning. By simply participating, sportsmen and women must accept that their risk of injury has increased, and that inevitably accidents do happen.
' Darren Gray is a solicitor at Davies Arnold Cooper