Re D, HL, 11/6/08

The House of Lords made clear that only two standards of proof are recognised by the common law: the balance of probabilities and beyond reasonable doubt. The test of the balance of probabilities was, however, flexible in its application: a court may have to look at the facts more critically or anxiously where there was an inherent unlikelihood of an occurrence taking place, a serious allegation or consequences following from the proof of the relevant fact. Where an allegation was not inherently improbable, a court should not consider potential adverse consequences against an individual if a finding were to be made against him. These were all matters of ordinary experience, requiring the application of good sense by a court or tribunal. 

Trustees of the Portsmouth Youth Activities Committee v. Poppleton, CA 12/6/08

The Appellant charity successfully appealed against a decision that it was 25% responsible for injuries sustained by the Respondent, an inexperienced climber, when he was rock climbing unsupervised on its indoor climbing wall. The Court of Appeal noted that it was extremely rare for an occupier of land to be under a duty to prevent people from taking risks that were inherent in activities they had freely chosen to undertake. The risk of falling was plainly obvious; no amount of matting would avoid the possibility of sustaining injury from an awkward fall. It would be too onerous a requirement for the law to insist upon training and/or supervision in respect of such commonplace activities.

Large v. Waldron, QBD, 1/8/08

The Claimant sustained catastrophic injuries as an infant when he developed meningitis and septicaemia. The Claimant’s GP originally diagnosed him as suffering from a viral illness and advised his mother to seek further assistance if his condition did not improve. At a second consultation he did not take the Claimant’s temperature with a thermometer and instead relied upon oberservation and touch. Cox J. held that the Defendant GP had failed to take a full and accurate history when the Claimant was first presented to him and had carried out a less than thorough physical assessment at the second consultation. The medical experts agreed that if the Claimant had been referred to hospital at either consultation, there would have been no permanent sequelae.

The Court of Appeal has allowed the defendant’s appeal in the case of Perry v Harris [2008] the much publicised decision in which the lower court had held parents supervising children on a bouncy castle at a party liable for the serious injuries sustained by one of them.

Lord Philips stated in his judgment, “It is impossible to preclude all risk. It is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so. The Court of Appeal held that “the issue was what positive steps would a reasonable parent take for the safety of a child of the claimant’s age playing on a bouncy castle. The answer to this question must depend critically on the risks that the reasonable parent ought to foresee would be involved in the use of the castle. “There was no justification, he held, for the children to be kept under constant, uninterrupted, supervision while on the bouncy castle: the fact that one of the defendants had turned her back on the castle for a few moments when the accident occurred was not a breach of duty. The accident was a freak and tragic accident which occurred without fault.