However, returning to this missive, it is drafted on the assumption that in all likelihood, you wish to commence an action here in England or Wales.

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1 Albion Chambers, Broad Street, Bristol BS1 1DR Telephone Fax DX 7822 Bristol Number 16 April 2013 Albion Chambers PERSONAL INJURY newsletter A chill wind...no, not Jackson On a recent ski trip I made a silly decision, despite being 16 stone, in my mid 30s and of questionable fitness, it seemed like a good idea to have a go at a little jump, hardly higher than a snowy mole hill (or so I told the current Mrs Shepherd). As I landed, in a style that I still believe to be Gazelle-esque, I felt my knee pop, and I hit the packed snow, like an Eddy- The-Eagle training jump. I felt a cold chill blow across the slope and an involuntary shiver rippled down my spine not an effect of the Jackson reforms but thinking of the journey down the hill in the blood wagon. Though this accident was entirely my fault, nobody else could have been to blame, nevertheless I began to wonder about the legalities and rights of action for those who weren t to blame, but requiring the same form of transport down the hill. It also occurred to me when I was asked to edit Albion s P.I. spring bulletin, that it would be published in April and therefore an article on this tricky subject may helpfully coincide with returning snowy-holiday makers, who may be considering making a claim. I hope this review is of use. First, may I commend an article, though of some age, drafted by Darren Lewis, a colleague practising here in Bristol. His article deals with various matters but covers jurisdictional issues associated with winter sports claims in a very efficient manner. If you wish, or must bring an action internationally, I would recommend his article to you. However, returning to this missive, it is drafted on the assumption that in all likelihood, you wish to commence an action here in England or Wales. Generally Prior to turning to specific examples of winter sports claims, it is necessary to set out, in some detail, the primary route of litigation for (winter) holiday claims being brought in the domestic courts. In such circumstances, the snow sports enthusiast, termed by us the claimant, may well bring an action under the Package Travel and Package Tour Regulations Descriptions and Tests A claim under the Package Travel and Package Tour Regulations 1992 is in contract, not tort, and this should be borne in mind whenever dealing with ski or snowboard related litigation. Reg. 15 only requires the proper performance of the contract between the claimant, hereafter called the consumer, and the operator. The term consumer is found within the regs and adopts the pre-existing common law construction of consumer as per Jackson v Horizon Holidays (1975). As a logical consequence, the category of those who can be a party to the action widens from just the principal contractor often mum or dad, to include children, friends or partners on whose behalf the winter holiday was booked. To qualify as a package holiday under the regulations, the consumer needs to establish three components; the package is sold or offered for sale at an inclusive price; at least two components out of transport, accommodation and other tourism services must be subject to the contract; and, the package must be provided over a period of 24 hours, or the accommodation is overnight none of these qualifications are likely to trouble us when bringing a winter sports claim. Many snow holiday contracts, the usual T&Cs we never read, do not specifically set out the duties of the provider, nevertheless, Hone v Going Places Leisure Travel Ltd (2001), as an example, makes it clear that a holiday contract contains an implied term that services will be provided with reasonable care and skill. Third Party Extensions and Limitations If our holiday company sub-contracts some or all of the components, it nevertheless remains responsible for the actions or omissions of its sub-contractor. It is no defence for the holiday company to claim that all reasonable steps were taken in selecting the particular third party, unlike an OLA type claim. However, a number of tour operators have managed successfully to defend claims on the basis that although package holidays were purchased in the UK, the injury occurred in relation to an off-package third party excursion, activity or service (although often booked on the ski bus to the resort, through the perky seasonaire ski rep). One common type of activity that would fall into this category and often results in injury, is the very popular night-time, post après-ski, snowmobile tour! If the excursion is booked in the above circumstances, the regulations would be rendered inapplicable - as will be readily apparent, such cases have particular resonance with winter sports claims. As a result, although booking a ski instructor, or their hire equipment through the provider whilst in the UK may cost a little more, those who subsequently become injured due to poor teaching or defective equipment will ensure they are protected by the regulations. However, as a crumb of comfort, it is possible to graft a third party, off-brochure excursion, activity or service back onto the

2 contract/the regulations, if the brochure relies on the existence of such matters being offered. Though not quite on point, the case of Cosmosair v Mawdsley (2002), shows how assertions made in a brochure can be influential in such claims. Cross applying that authority, if a brochure boasts that a resort is beginner friendly, or that the resort has high-quality instructors and injury is caused because this quasi mere puff proves to be incorrect, a viable route of claim may be established. Similarly, in Jones v Sunworld Ltd (now incorporated in JMC Holidays Ltd) (2003), a case regarding injury sustained at a local lagoon the court set out four matters to be examined in establishing liability: whether the resort could control the state of the attraction; the extent to which the attraction was part of the marketing; whether it was reasonable to expect its customers to use the attraction; and whether in all the circumstances, the attraction was part of the resort. Therefore, cross applying this (summer) authority to our snow mobile excursion example it becomes clear that even on bus bookings may give rise to liability, if the brochure made great play of the activity s or attraction s existence. As an example of this type of argument being pursued in the snow sports context, in this case in relation to injury sustained on an in-resort toboggan run, please see Susan Parker v Tui UK Ltd (2009). In the circumstances of this particular case, the claimant was unsuccessful under the regulations but nevertheless, shows how the above principles can be applied. Local Standards Reasonable care and skill as referred to above, necessarily reflects and incorporates the reasonable care and skill of the destination country, rather than the UK. Wilson v Best Travel (1993), a treatise on the difference between glass safety standards in the UK and Greece, is a stark example of the local standards test. This variation in reasonable care and skill between destination countries has proved to be of key importance in winter sports cases. The experienced litigator of such claims will be faced habitually with this local standards defence but will appreciate, as I ve set out earlier, that they can be overridden if the snow sports brochure, relied on to book the holiday, makes a counter or contrary assertion to the local standard. One can imagine a brochure boasting highest quality snow sports hire equipment when the Bulgarian resort, in fact, uses two mouse traps as ski bindings. Liability may follow even if the mouse traps are the local standard. The curious effect of the local standards factor, is our local CJ having to put on her beret or forest green Bavarian feathered hat, in determining the case. Maintaining the quality of ski equipment theme, as being one matter that may be susceptible to the local standards defence it is easy to appreciate the difference in the quality of equipment that may be expected as between the glitzy Courchevel, France, frequented by the Beckhams, as opposed to one of the better value student centred resorts in Bulgaria. The net result of this approach is if a client s equipment fails in Courchevel, so as to cause injury, you may have a better chance of obtaining damages under the regs, than if the same happened in Bulgaria the same regulations, the same judge, the same court, the same MO of injury but a starkly different result. Expert Evidence As will be clear by now, in most cases it will be necessary to obtain some sort of experts report setting out the base level of local standards so as to be able to adjudge whether your client s particular circumstances fall above or below that standard. In the absence of such evidence, how will a court be able to judge first, what the local standard is and secondly, whether actions or omissions by the defendant, fell above, below or at that local standard? This approach is exemplified by Holden v First Choice & Flights Limited (22 May 2006, unreported), a case concerning a fall from a flight of steps in a hotel in Tunisia. The recorder at first instance found that the claimant probably slipped on liquid and then analysed the requirements of safety, drawing inferences about Tunisian standards. Goldring J, on appeal, said that inferences were; no substitute for evidence for what is local custom and what may be the local regulation. Examples of snowier variants on the above theme can be found in the cases of Gouldbourn v Balkan Holidays Ltd (2010) and Rochead v Air Tour Holidays Ltd (2000), both great examples of the importance of expert evidence in such claims. The Highway Code The case of Glouldbourne, regarding the standard of instruction in Bulgaria (seen as distinct from the standard of instruction in Western Europe), heard evidence from experts on both sides, but none qualified to comment on the local standards. Similarly, the Court in Glouldbourne, also had access to and heard submissions on the snow sports version of the Highway Code, the Federation Internationale de Ski handbook, but once again did not have evidence of its interpretation through the prism of local standards. The judgment at first instance was termed thus: I have no evidence which can satisfy me that he has failed to show reasonable care by reference to such standards. It may be that he fell below those standards but that is not something which I can properly infer from the evidence I have heard. The appellate court did not disagree. Nevertheless, the importance of the FIS handbook was highlighted in both Lyon v Maidment (2003) and Anderson v Lyotier (2008), cases where the accident locus was in Andorra and France respectively but in both circumstances, applying the rules of the FIS handbook. You will be pleased to hear that translated versions are available. Defences Putting to one side the local standards defence, if it can be termed such, the three primary avenues of defence open to a provider, as set out in the regulations, are: n that the failure is the fault of an unconnected third party and unforeseeable or unavoidable; n and on the other, that the failure is due to either; unusual or unforeseeable circumstances beyond the control of the provider, the effect of which were unavoidable even if due care had been taken; n an event which the provider could not foresee or avoid will all due care. None of those defences will particularly trouble the experienced P.I. practitioner, they simply mirror the reality of the law we already known and love. Conclusions So what can we take from the above foray down this mogul field of regulations and case law? n First, the issue of local standards causes the unique and usual effect of the litigation of identical cases may well, without offending principles of perversity, result in differing results. n Secondly, a tour operator is not ordinarily responsible for off-brochure activities. n Thirdly, a tour operator is not ordinarily responsible for features of the resort. n Finally, if a tour operator relies on, or advertises a relevant matter within the brochure, the protection ordinarily afforded to the tour operator in points 1, 2 and 3 above, can be countered, and discounted. Richard Shepherd

3 Bradley Wiggins I aint Ihave a confession: I am a cyclist. I acknowledge that cyclists and car drivers don t always mingle well at parties even less so on the roads. I like to think I am a responsible cyclist: I wear a helmet, use lights, wear bright clothing and never skip a red light. Despite this, I have still been the victim of several knocks: no permanent injuries sustained but they did start me thinking about the law and liability surrounding such incidents. Cycle lanes and pains Without seeking to teach granny to suck eggs, or more appropriately, Laura Trott to pedal, it is necessary to set out a brief overview of the law we are well familiar with, before applying it to the issue of cyclists. As we know, a Highway Authority has a duty to maintain and repair roads and paths that are deemed highways maintainable at the public expense. Some, increasingly the majority, of footpaths and cycle paths fall within this description. If the cycle lane falls with the legislation, a Highway Authority will be in breach of its duty to maintain and repair the lane if it poses a danger : if injury is foreseeable as a result of a defect in the lane, Morton v Wheeler Times, 1 February The courts have recognised that many cycle lanes have minor defects which might plausibly cause injuries, but not every defect can amount to a danger. To amount to a danger, the defect has to be the sort of thing which an authority may reasonably be expected to guard against Mills v Barnsley MBC [1992] PIQR 291, 294. Danger can depend on the nature of the defect, its size, its position and other relevant circumstances. I won t repeat the usual Highways Act defence within this article, suffice to say that the defence will be made out if the HA can establish it had taken such care as in all the circumstances was reasonably required to make sure that the part of the highway to which the action relates was not dangerous for traffic. (HA 1980 s58(1)) our common or garden inspection routine. The assessment of whether the HA has satisfied its obligations will always be a matter of fact and degree, for example, in Thomas v Warwickshire CC [2011] EWHC 772 (QB), a claimant successfully argued that the highway authority s maintenance plan was insufficient because under the program, a defect such as the 2.5cm-high hardened concrete spillage didn t have to be fixed. Cycle lanes usual placement by the left of the carriageway lends itself to issues of maintenance. The fact that a couple of feet of Highway is given over to the cyclist and painted red to indicate this concession does not seem to have caused the majority of HAs to consider the dangers posed by drain covers, gutters and potholes, all of which are usually found on the offside of the carriageway. I am waiting to receive the right case, but it seems to me that where a HA has funnelled or invited cyclists into a cycle lane, the last aspect of the s.58 defence may prove troublesome for the HA, reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. The assessment of danger must include a consideration of the type of traffic using a given area of highway in this case, the least robust form of vehicle on our roads, the bicycle. If a HA decides to install a cycle lane it is arguable that it will have twinned but differing activation levels for defects found next to one another For a pithy summation of these varying considerations see Brett v Lewisham London Borough Council [2000] LGR 443 CA. Safety first Reynolds v Strutt and Parker [2011] EWHC 2263 was the first case where a cyclist had a damages award reduced for not wearing a helmet. This is also a case to warn employers against organising alternative team-building days : an employee sued his employers following serious brain injuries sustained from a voluntary bicycle race on an activities afternoon organised by the employers. The employer was held liable as they had failed to act in accordance with their usual duties. However, the cyclist was held to be twothirds contributory negligent for not wearing a helmet and for riding aggressively. When other cases have reached the courts in recent years, the courts have held that cycling without a helmet can be contributory negligent, largely because it involves ignoring the Highway Code Rule 59. This does not mean that the arguments surrounding the effectiveness of cyclist helmets are pushed aside: cycling helmets are tested at speeds of roughly 12mph and it is unclear how effective they are for preventing injury at higher speeds. If a cyclist is involved in an accident with a motor vehicle, it is still difficult to prove causation of any injuries as a result of not wearing a helmet. Reynolds v Strutt and Parker was unusual because it was a low-speed impact with no motor vehicle involved. It remains to be seen whether the courts will be prepared to make a deduction for not wearing a helmet in a high-velocity crash involving a motor vehicle. As will be appreciated, the quality of expert evidence would be key in such a case. Dangerous manoeuvres One of the more risky manoeuvres as a cyclist is that of filtering: cyclists moving on the offside of stationary vehicles to overtake. Filtering itself is not illegal: Rule 151 of the Highway Code states that in slow-moving traffic, motorists should be aware of cyclists and motorcyclists who may be passing on either side. Despite of this, cyclists should note that this manoeuvre has been described as an operation fraught with great hazard Powell v Moody (1966). In Davis v Schnogin (2006; CA), a motorcyclist, by analogy, was overtaking a queue of stationary vehicles when one of the cars decided to attempt a U-turn to get out of the queue. The car had moved to the left to start its manoeuvre when the collision occurred. The judge found that the defendant had been negligent in not looking properly before beginning his turn. However, in Brooks v Burgess (1996), there was a collision between the parties when the motorist crossed a junction in front of a stationary coach at 5-10 mph into the path of a motorcyclist travelling along the nearside of the coach at 20 mph. It was held on appeal that both parties were equally to blame for the accident. Both parties were performing dangerous manoeuvres and each should have been aware of the obvious risk involved. Conclusion The presence of increasing numbers of ghost bikes (white bikes erected at the site of the death or serious injury of a cyclist) across the country show that cycling can mean taking your life in your own hands. There is currently an All Party Parliamentary Cycling Group Inquiry (launched November 2012; report due April 2013). One of the recommendations proposes new legislation making a motorist liable for any collision with a cyclist, unless the motorist can prove that the collision is the cyclist s fault: this is one to keep an eye on. In the interests of balance, I should point out that I also drive a car. Erinna Foley-Fisher

4 Little Relief from Jackson? Practitioners are well aware that when a rule, practice direction or court order has not been complied with, an application can be made for relief from sanctions under CPR r.3.9. This rule provides the court with discretion to grant relief, but specifically draws the court s attention to a number of factors. These factors often provide the basis upon which an application can be framed. Current Approach The courts traditional approach to such applications has been to require a systematic consideration of each factor (Bansal v Cheema [2001] C.P. Rep. 6). More recently however, the Court of Appeal considered it satisfactory for a court to conduct an appropriate review and balancing exercise without the need to expressly mention all factors (Khatib v Ramco International [2011] EWCA Civ 605). This remains good law until 1st April 2013, by the time this article is published we ll be stepping into a brave new, spikier, world. Changing Emphasis However, the test to be imported under the Civil Procedure (Amendment) Rules 2013 is completely reworked. It reads: (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need: (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. The emphasis is therefore markedly different. Whilst the court will still consider all of the circumstances of the case to enable it to deal justly with the application, specific attention is only drawn to the need for the litigation to be conducted efficiently and at proportionate cost, and the need for there to be enforced compliance with rules, practice directions and orders. The court s attention will no longer be automatically drawn to, for example, the explanation for the failure and whether it was intentional. It will be interesting to see how these new rules are interpreted in practice but on the face of them, whereas before the continuation of sanctions depended on an assessment of the culpability of the failure, on the other hand, the reworked version very much focuses on the subjectively quantifiable proportionality. A Statement of Intent The Court of Appeal has already signalled that the current approach adopted by the courts in such applications has been too forgiving. In Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224, Jackson LJ, anticipating the implementation of the Civil Procedure (Amendment) Rules 2013, stated: There is a concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally. After that date [1st April 2013] litigants who substantially disregard court orders or Misapplied and Misunderstood The doctrine of ex turpi causa non oritur actio is sometimes misunderstood or misstated as meaning that a Claimant who suffers injury in the course of his own illegal or immoral act is prevented from recovering damages for that injury. While such an interpretation is undoubtedly an over simplification it is not unheard of for such an argument to be deployed by the defence, no doubt in the hope that the Claimant will be scared off by so much Latin! A Considered View In fact, the question of whether or not the principle applies involves a more the requirements of the CPR will receive significantly less indulgence than hitherto. This is a clear signal that from 1st April 2013, the courts will be less receptive to applications for relief from sanctions and will place much greater weight on the need for compliance. Whilst the factors currently mentioned under r.3.9(1) can and should be drawn to the court s attention, such arguments are more likely to fall on deaf ears. Administration It is worth noting that a new rule 3.1(8) is to be added, which will empower the court to contact the parties from time to time in order to monitor compliance with directions. The parties are compelled to respond promptly. In reality, it is suspected, little will change, it is common knowledge that the Civil Courts are under-resourced and it is therefore difficult to imagine a proactive Civil Court having the time and judicial availability to undertake timely reviews of case orders and directions. Cumulatively, these changes envisage a situation where the court will be more active in monitoring compliance, and less accepting of applications for relief from sanctions when there has been a failure to comply. Philip Baggley Carry on ex turpi! subtle analysis of the facts of each case but ultimately boils down to the issue of causation. Perhaps the clearest confirmation of this approach was given in In Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249 where, in Sir Murray Stuart-Smith s leading judgement at paragraph 70, it was held that: the operation of the principle arises where the claimant s claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for the tortious conduct of the Defendant. The decision in Vellino was approved by the House of Lords in Gray v Thames Trains [2009] UKHL 33 in the leading Judgement of Lord Hoffman which further underlined that the decisive issue was that

5 of causation. Reference was made at paragraph 54 to an alternative manner of expressing the test as previously enunciated in the case of Revil v Newberry [1996] QB 567: Or is the position that although the damage would not have happened without the criminal act of the Claimant, it was caused by the tortious act of the Defendant? The same approach was upheld and applied more recently by the Court of Appeal in Delaney v Pickett [2011] EWCA Civ These principles were considered and applied by Cooke J in the case of Joyce v O Brien [2012] EWHC 1324 (QB). In that case the Claimant was one of two men who went out in a van and stole a set of ladders from outside a house in broad daylight. However, having got the ladders to the van it transpired that they were longer than the van. Not perturbed by this, nor by the fact that they had neither the time nor the means to secure the ladders with the back door open, the second man drove the van away at speed through residential streets while the Claimant hung off the back of the van, with the door flapping open, in order to prevent the ladders from falling out. The witness evidence, summarised in the judgement, describes a picture reminiscent of a Carry On film but, if you hadn t guessed where this story was going already, the comedy came to an end when the Claimant fell off and suffered serious injury. No prizes for guessing what argument was deployed by the driver s insurance company (surprisingly, he was insured!) when the claim came in. It was held that in this case ex turpi did apply and so the claim failed. The theft did not merely give occasion for the tortious act of the driver, it was inextricably linked to it. The driving and the Claimant s position on the back of the van were part and parcel of the getaway that they were seeking to effect and that was itself part and parcel of the continuing act of theft in which they were jointly engaged. Summary The decision in Joyce is one which it is difficult to argue against as a matter of common sense as much as law. There are, however, many cases in which the issues will be less clear cut, and in such cases it is important to remember that the fact that the Claimant or potential Claimant was injured when doing something he really shouldn t have been doing does not, of itself, mean that ex turpi will apply. Derek Perry Jackson Q and A Over recent months members of Albion s PI team have received many calls asking for our view of the Jackson reforms, particularly, our assessment as to its impact on PI litigation. It became readily apparent that many of our instructing solicitors shared the same concerns and frustrations about the reforms and that the questions we were being asked could be grouped into a small number of themes. For some, especially those involved in the long-running, more complex areas of litigation, the Jackson reforms, or by their formal badge the Legal Aid, Sentencing and Punishment of Offenders Act 2012, may not be felt immediately, however those of us who undertake the faster-paced PI litigation, whether for the defendant or claimant, are likely to feel the effects of Jackson soon after its implementation in early April By the time this newsletter is published the first ripples are likely to be on the horizon. Therefore, as a team, we thought a handy FAQ section within this newsletter would prove to be a useful touchstone as those ripples move closer. We ve selected the 10 most common questions/ themes we ve been asked about and have combined our collective views into this article. We hope it is of use and reassurance. Q What are the headline changes we need to be aware of? A After 1st April 2013 a successful claimant will not be able to recover the ATE insurance premium from the unsuccessful defendant. Similarly, any success fee levied by the claimant s solicitors will not be recoverable from the defendant. Referral fees are being banned. Q Who will pay the defendant s costs if the claimant fails? A The pithily titled qualified one way cost shifting (QOCS) being introduced will operate to give a bona fide, sensible (i.e. in relation to Part 36 offers) claimant protection from paying the defendant s costs. This should/is intended to replace the need for high value ATE insurance. Q There won t be ATE insurance at all? A Well, not as we know it. ATE insurance will still be sensible/needed to protect against disbursements and failures to beat Part 36 offers. As a result, premiums are likely to be smaller (we ll wait and see) and should not act as a major barrier in bringing PI cases. Q Under QOCS, what will happen if a claimant fails to beat a Part 36 offer and the defendant s costs are greater than the award of damages? A A defendant s costs order is now limited to the level of damages awarded the net result could be for a 0 win for the claimant. Q Can a success fee still be levied by the claimant solicitor? A Technically yes, a success fee of up to 25% can be recovered from the claimant. However, will the market tolerate the levying of success fees at all, or will competition be driven by who offers the lowest levy? Q Are there any alternative funding arrangements? A Yes. Damages Based Agreements (DBAs) are being, or are intended to be implemented and are likely, in practice, to replace CFAs. They are an agreement between the claimant and his or her solicitor to pay costs as referable to the amount of damages received. Q Is there anything positive in the reforms? A General damages are expected to increase by 10%. Also, the Part 36 rules are being amended. If a claimant equals or betters his or her own Part 36 offer, a further 10% uplift on damages applies. Q Will the number of PI cases fall? A Undoubtedly yes. However, if we define PI cases by the prefix good, the reforms are unlikely to have a significant impact. The current litigation process has been bloated by very poor cases, often pursued because of poor evidence capture by the referral companies - the case being dropped late in the day because the standard of evidence has not lived up to the referral. There will be less work but hopefully of an overall better quality. Q Can a PI business remain profitable? A Yes, though most will have to operate a much leaner business. The ban on the continued on back page Albion Chambers PERSONAL INJURY TEAM NEWSLETTER Number 16 April 2013

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