I’ve written before that judges are moving against personal injury claims; too many people trying it on, like Mr Tomlinson, who ignored a “No Diving” sign put up by Congleton Borough Council and then blamed the council when he broke his neck whilst, er, diving. He got short shrift. So did a student at Nottingham Trent, injured in a rugby match, but this time with a lot more judicial regret.
It was one of those common rugby incidents – a player dives for a try and gets pushed over the touchline – but Mr Sutton was doubly unlucky. Not only did he miss the try, but his knee hit something half-buried in the turf. He did recover to the extent that he re-started his rugger career, but was in pain for some months. The parties didn't agree on the responsibility, but they did agree that the damages, should they be awarded, would be £54k. So quite serious. It also cut down on the costs of the trial; no need to prove that.
The issue to be proved was whether the home rugby club was responsible for the half-buried thing. It was an occupier for the purposes of the Occupiers’ Liability Act 1957, it therefore had to make sure everyone was reasonably safe. The pitch and environs had to be free of harmful stuff. Especially to lawful visitors like rugby players. Had the rugby club done its duty?
The club had not helped itself; it had not checked the pitch, or its environs, pre-match. Bad. The problem for Mr Sutton was to prove that a reasonable inspection would have discovered the half-buried thing. Had it been very difficult to spot, the club could not be liable – the club would only be liable if a competent inspection would have noticed the thing, rather than a 100% perfect archaeological scrutiny.
The half-buried thing was a bit of plastic that had marked a cricket boundary. Someone had broken the top part away, leaving a jagged stump smothered in the turf. The problem was that Mr Sutton himself said that he had not seen it; a team-mate who had helped Mr Sutton in the aftermath could not see what had caused the knee injury. it would therefore have been next to impossible for even a careful inspector to have seen it.
Therefore the club was not liable, said a 3-0 Court of Appeal. Somewhat reluctantly, but the Court felt it impossible to impose such a strict duty on an occupier. The real blame lay with the chap or chapess who broke the boundary marker away without warning anyone, leaving such an obvious danger; however such a chap or chapess might not be easy to trace...