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As a result of a skiing accident on 7 February 2004 Mr Anderson sustained injuries which rendered him tetraplegic. He alleged that the ski instructor to whom he was assigned for the duration of his holiday should not have permitted or encouraged him to ski in the off-piste area where the accident occurred. On arrival on their holiday Mr and Mrs Anderson were assigned to a group with varying levels of experience. Two days before the accident Mr Anderson had found a relatively easy off-piste run challenging. On the day of the accident the instructor proposed that they ski down a steep off-piste slope with trees. In the course of his descent Mr Anderson lost control and collided with one of the trees.

Held: At the time of the accident three of the group, including Mr Anderson had not mastered to a sufficient level the skills necessary to undertake a piece of off-piste terrain of the nature of that in question in reasonable safety. It was reasonably foreseeable that any one of these would have fallen or lost control of their skis when negotiating the terrain. In addition, there was a reasonably foreseeable risk of impacting with a tree and a foreseeable risk of this resulting in serious injury. On this basis the instructor was liable for the accident but there was contributory negligence on the part of Mr Anderson of one third to reflect his failure to protest or comment prior to the descent.

Comment: This decision appears to go against recent decisions in favour of Defendants in public liability claims such as Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] where the Defendant was found not liable where a Claimant who chose to engage in simulated rock climbing was rendered tetraplegic by a fall. However, the key distinguishing feature is that in Anderson the ski instructor assumed a responsibility for the safety of those in his care.

The Judge was keen to emphasise that this decision does not mean that anyone who suffers injury as a result of a skiing accident or when under the supervision of an instructor will win damages. He stated that "Everyone recognises that skiing is an inherently risky pastime and accidents causing injuries, sometimes very serious, will occur, more often than not without negligence being established on the part of anyone involved."

However, potential Defendants and their insurers, both in the skiing industry and more generally those involved in leisure activities undertaken under supervision of an instructor, will doubtless be concerned by this finding of liability. They will want to carry out a review of procedures and risk assessments and ensure that instructors are aware of their responsibility to assess skill levels before activities are undertaken.

For further information contact Kathy Dwyer, Kennedys, 01622 625 649.

Ms Freeman fell from a horse supplied by the Defendant during a hack escorted by its representative, Miss Turner. She fell suffering injury when the horse, Patty gave two or three large bucks as it was beginning to canter. When Ms Freeman was allocated Patty she was told that she might buck. Prior to the fall Patty had bucked and Miss Turner had stopped the ride and spoke to Ms Freeman who said that she was fine and wished to continue.

Under s.2(2) Animals Act 1971 a Defendant will be strictly liable if (a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and (b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and (c) those characteristics were known to that keeper.

Held: The Court of Appeal held that paragraph (a) of s.2(2) was satisfied in this case. However, in respect of the first limb of paragraph (b) the Judge was entitled to find that Ms Freeman had failed to establish that bucking is not a normal characteristic of horses generally. With regards to the second limb, there was no evidence that horses generally buck at particular times or in particular circumstances. In any event the Defendant was exempted from liability under s.5(2) by the voluntary assumption of risk by Ms Freeman.

Comment: Following the House of Lords' decision in Mirvahedy v Henley [2003] an increase in claims under the Animals Act was anticipated. In that case one of the Defendant's horses escaped from a field onto a nearby road where it collided with the Claimant's car. Paragraph (b) of s.2(2) was considered and it was held that the Act had been intended to create a strict liability for damage caused by animals displaying temporary characteristics in certain circumstances or at certain times that were normal to the breed.

However, as this case illustrates, courts will want carefully to analyse each element of s.2(2) and will require evidence on which to base a finding in favour of the Claimant. Ms Freeman's claim was not helped by a lack of evidence on the usual characteristics of horses, although it is by no means certain that further evidence would have supported her claim.

The case also serves as a useful reminder that, when defending claims under the Animals Act, the provisions of s.5(2) should be kept in mind. In this case the Court of Appeal accepted that Ms Freeman voluntarily accepted the risk of carrying on with the ride and being thrown from the horse.

It should be noted that consideration is currently being given to amending the Animals Act with a view to reducing the number of instances when, following an accident, the owner of an animal is strictly liable. The Animals Act 1971 (Amendment) Bill received its second reading in the House of Commons in March 2008. However, there is no clear timetable for the progress of the Bill through Parliament.

For further information contact Alison Palmer, Kennedys, 01622 625 614.

Ms Hull became ill with campylobacter enteritis shortly after starting work as a turkey plucker. She alleged that her employers, Mr and Mrs Sanderson had failed to protect her from the risks of infection which were inherent in handling dead poultry. At first instance in a draft judgment the Recorder found the Sandersons negligent and in breach of duty for failing to provide suitable gloves, tell Ms Hull to change them frequently and warn her of the risks of exposure and the precautions that should be taken. However, on the issue of causation he said that he could not say on the balance of probabilities that she had become infected as a result of the breach of duty. Both Counsel made further written submissions and the Recorder then revised his judgment in favour of Ms Hull on the basis that the case fell within the principle in Fairchild v Glenhaven Funeral Services [2003], where it was held sufficient to show that the employer's breach of duty had materially increased the risk of injury.

Held: The Court of Appeal held that it was not impossible for Ms Hull to prove causation on the usual "but for" basis but the Recorder had failed to make findings of fact which would have allowed him to make a decision on this basis. The Recorder was wrong to hold that the case fell within the Fairchild exception. As no request had been made to remit the case to the Recorder for him to make the necessary findings of fact the appeal was allowed and the claim failed.

Comment: This is another example of a case where the Court of Appeal has rejected an attempt by a Claimant to move away from the usual "but for" test for causation and adopt instead the much more favourable test set out in Fairchild. It is positive for Defendants and insurers that the Court of Appeal has rejected this attempt and reinforced that the "but for" test should be used in all but a very limited category of cases.

Nonetheless it is clear from the judgment of the Court of Appeal that there was in their view scope for the claim to have succeeded. However, in the circumstances it was not possible for the issue of causation to be reopened.

For further information contact Ron Ruston, Kennedys, 0845 838 4856.

Mr Hussain was a taxi driver who claimed that in the course of his work he had been involved in numerous incidents causing him to call on the assistance of the police on more than 50 occasions. He alleged that the police responded in a way that amounted to misfeasance in public office and as a result he had suffered from stress related symptoms. His medical report indicated that he suffered from stress related symptoms which he experienced as irritability and physical discomfort but did not amount to a diagnosable condition such as an adjustment disorder.

Held: In accordance with the decision of the Court of Appeal in McLoughlin v O'Brian [1983] in a claim for negligence a Claimant must establish that he is suffering not merely grief, distress or any other normal emotion, but a positive psychiatric illness. The tort of misfeasance in public office is never actionable without proof of material damage and a similar requirement applies as confirmed by the House of Lords in Watkins v Home Secretary [2006]. A recognised psychiatric illness is one which has been recognised by the psychiatric profession and in general these are illnesses that are within the International Statistical Classification of Diseases and Related Health Problems (ICD) produced by the World Health Organisation. The medical evidence in this case did not satisfy the requirement of material damage.

Comment: This case is a welcome reminder that a Claimant, whether in a personal injury claim or a claim for misfeasance in public office, must provide evidence that they are suffering from a recognised psychiatric illness if damages are to be awarded for this aspect of the claim.

It is common in personal injury claims for a Claimant to seek damages for distress. It is a tactical decision for Defendants and insurers in each case, depending on the evidence available, whether to press for a psychiatric report, which may bring such a claim to an end but in the alternative may be supportive of the Claimant's case.

In respect of claims for misfeasance in public office it should however be noted that one of the Court of Appeal Judges commented on an obiter basis that, whilst he agreed that the Claimant in this case had not succeeded in showing that he had suffered material damage, he did not consider that in Watkins the House of Lords had limited material damage only to recognised psychiatric illnesses. In his view it was important not to set the bar too high in these claims given the gravity of the tort.

For further information contact Paul McGrath, Kennedys, 0161 829 2564.

Mr Paterson had been employed by the Authority since 1979. Since 1985 he had been the estate manager of the Authority's headquarters. In September 2004 he suffered a nervous breakdown and did not return to work. He alleged that he developed his condition as a result of having to work long hours to perform his duties and in particular as a result of having to be on call out of hours. He also complained that the Authority should have provided him with accommodation away from the site for use on the occasions when he was not on call.

Held: It was not reasonably foreseeable that Mr Paterson would suffer injury to his health as a result of stress to which he was subjected at work. Mr Paterson never submitted a self-certification form mentioning the word stress and in a conversation between his wife and his manager, on which Mr Paterson relied, she did not tell his manager that Mr Paterson was suffering symptoms as a result of stress. The only indication the Authority had that he was at risk of suffering from stress at work was in a report prepared in 1991 which was too remote in point of time. The Authority should not be expected to have foreseen a risk from the number of hours he was working. In any event the operative cause of his breakdown was his perception of how he had been treated by the Authority in respect of his wish to be provided with accommodation away from the site. The Authority had no duty to provide alternative accommodation.

Comment: This is another example of the Courts applying the guidelines set out by the Court of Appeal in Hatton v Sutherland [2002] in relation to claims for stress at work.

In the last edition of Liability Brief we reported on the decision in Dickins v O2 [2008] where the Court of Appeal found in favour of the Claimant on the basis that the Defendant could have reasonably foreseen the problem. In that case the Defendant was aware that the Claimant was undergoing counselling and she had made her concerns clear, and the facts in Paterson can clearly be distinguished.

The decision in Paterson is positive for Defendants and insurers as it highlights that, for a Claimant to succeed in a stress claim, the injury to health must be reasonably foreseeable. Given the lack of evidence of foreseeability it is perhaps surprising that the claim was pursued to trial.

For further information contact Radd Seiger, Kennedys, 0121 633 2228.

The consultation closes on 29 January 2009. Kennedys is preparing a response to the proposals. If you have any queries or comments please contact Richard Crockford, Kennedys, 020 667 9073.

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