Lowdon v Jumpzone Leisure UK Ltd

This is an appeal from the judgment and order of Her Honour Judge Waddicor (“the judge”) dated 17 July 2014, sitting in the Brighton County Court, whereby she awarded the claimant, Jason Lowdon (“the claimant”), the sum of £17,000 by way of general damages for personal injuries which the judge found he had suffered as a result of the negligence of the defendant, Jumpzone Leisure UK Limited (“the defendant”), in the operation of a piece of equipment known as “The Hyper Jump” on Brighton beach on 4 August 2008. The judge also awarded the claimant the further sum of £8,616.34 in respect of special damages, interest and indemnity interest on damages. The defendant appeals against the judge’s decision in respect of both liability and quantum.

Mr Charles Utley appeared as counsel for the defendant; Mr Richard Baker appeared as counsel for the claimant.

The claimant’s case at trial was that he had two rides on the Hyper Jump. The judge described the manner in which the Hyper Jump works in paragraphs 2 and 3 of her judgment as follows:

“2.

The equipment works in the following way. The rider is strapped into a harness, which fits around the waist and between the legs. On each side of the harness, there are elastic ropes. The number of ropes depends on the weight of the rider. Once the rider is installed in the harness, the rider lifts his feet from the ground and assumes a sitting position, suspended slightly above the ground. The shoulder-straps are held in either hand by the rider. The operator counts down before launch (either three, two, one or one, two three) and, when the rider signals either by word or facial expression that he is ready for the launch, the operator releases the handle.

3.

Once the elastics are released, the rider is propelled high into the air and bounces up and down for a matter of seconds. It is possible for the rider to perform forward and backward somersaults whilst in the air. Not all riders choose to do so, or indeed are able to do so.”

The claimant said that the first ride passed without incident. When it came to the second ride, however, he said that he was released without warning, while he was looking down, and, as a result, suffered an injury to his neck. He was not aware of that injury at the time but, on the following day, he found his neck was stiff and painful. The stiffness and pain lasted for two or three days. Then, on 21 August 2008, he suffered a sudden loss of vision. He was found to have sustained a dissection of the vertebral artery. His case was that that injury had resulted from his second ride on the Hyper Jump.

The claimant alleged that the defendant’s servants or agents who had been operating the Hyper Jump had been negligent in releasing him without warning, while his head was down. He said it was that negligence which caused his injuries.

The defendant denied that the claimant had been released without warning. But, since none of the defendant’s directors or employees had any recollection of the claimant’s rides (no complaint of any injury was made at the time), it was unable to call any positive evidence as to what had happened. The judge found that the claimant had been released without warning while his head was down. The defendant does not challenge that finding on appeal.

The claimant’s pleaded case, which he supported in his evidence, and in the evidence of two of his witnesses, was that, as a result of being released without warning while his head was down, his head had been thrown violently backwards and that had caused his injury. Although the judge found that all of the witnesses, including the claimant, who said that the claimant’s head went backwards, believed that that was what had happened, the judge rejected that evidence, preferring the evidence of a jointly instructed expert engineer, Mr Damian Mutch, to the effect that it would have been impossible for the claimant’s head to have been thrown backwards. Although the judge expressed some reservations about Mr Mutch’s evidence, the judge was satisfied that it was more likely than not that the claimant’s head went forward and that it did not go backwards following the second launch. However she accepted the claimant’s submission that, ultimately, it did not matter whether the force caused the neck to go forward or to go backwards; what had happened was that significant force had been applied to the neck at a time when the claimant was unprepared for the ride. Accordingly she held that the injury was sustained as a result of the defendant’s negligent operation of the equipment and failing to give an adequate warning.

The defendant denied that the claimant’s arterial dissection was in fact caused by anything that happened on the Hyper Jump. However the judge found that dissection was caused by whatever movement of the head and neck had taken place on the ride. The defendant does not challenge that finding on appeal.

At trial the defendant argued that releasing a customer, who was properly strapped in, without warning, while his head was down, would not be negligent in law since it would not be reasonably foreseeable that doing that could cause injury. However the judge found that it was reasonably foreseeable that injury would be caused by releasing a customer without warning. The defendant does challenge that finding on this appeal.

So far as quantum was concerned, the judge, having found the defendant liable for the claimant’s injury assessed general damages for pain and injury and loss of amenity in the sum of £17,000. She said that she based that figure:

“on £12,000 for pain and suffering, and general loss of amenity, to which I have added £5,000 for the two years of being without the use of a car.”

She also awarded the claimant special damages in the sum of £6,500 in respect of loss of profit on business mileage together with interest and indemnity interest on damages making a total judgment sum of £25,616.34.

In her written reasons for refusing permission to appeal the judge added:

“The court considered the loss of use of the car was significant. At the time of the accident the claimant had a personal leasing agreement on a car costing over £880 per month and drove around 50,000 miles per annum. He carried on the leasing agreement for the first 10 months even though it was unable to drive the car. Thereafter he cancelled the agreement”

The defendant challenges that assessment on this appeal on the grounds that it was plainly excessive.

Mr Utley’s principal submission on the appeal in relation to liability was that it was not reasonably foreseeable to an operator of the ride that a customer who was properly strapped in could be caused injury by being released without warning while his head was down, notwithstanding that it was accepted that it was possible to suffer arterial injury as a result of no, or very minor, trauma. Mr Utley referred to the fact that there was evidence (not contradicted) that the Hyper Jump had been operated for many years with thousands of customers without anyone having been injured. Mr Utley complained that the judge accepted that evidence but made no reference to it when considering the foreseeability of injury. The judge failed to consider what a non-negligent operator would have reasonably foreseen. Mr Utley criticised the conclusion in paragraph 26 the judgment that the judge was:

“at a loss to reconcile the defendant’s own guidelines which highlight the possible risk of death if security rules are not followed, with an argument that there was no foreseeable risk of injury I’m satisfied that the risk of injury was reasonably foreseeable.”

Mr Utley complained that in effect the judge’s sole ground for deciding that it was reasonably foreseeable that injury could be caused by releasing a properly strapped in customer without warning was that the defendant’s own guidelines on the operation of the Hyper Jump stated that any breach of the rules could result in death. One of the “rules” was that the customer should be asked if he was ready before being released. It followed, according to the learned judge that it must have been foreseeable to the defendant that releasing someone without warning, even though properly strapped in, could cause injury. In fact, she seemed to go so far as to say that it was reasonably foreseeable that it could cause death.

Mr Utley further complained that, in coming to a conclusion as to reasonable foreseeability, the judge failed to mention, or to have sufficient regard to, the evidence of the experts, namely Professor Venables, a consultant neurologist instructed by the claimant, and Mr Mutch. The fact that a consultant neurologist might consider it reasonably foreseeable that a minor movement of the head downwards could cause injury did not mean that it would be reasonably foreseeable to a competent operator of the Hyper Jump that such a movement could cause injury. He submitted that the judge made no reference to that, or to any of Professor Venables’s evidence, when considering the foreseeability of injury.

He submitted that the judge’s reliance, when finding it was reasonably foreseeable that injury could result from a customer being released without warning, on the defendant’s guidelines for the operation of the Hyper Jump was wholly artificial. He submitted that her judgment almost read as though she considered that, having emphasised the risk of death in the opening passage of the guidelines, the defendant was estopped from denying that injury was reasonably foreseeable if a minor rule was not followed. Accordingly he submitted that the judge had failed to provide a reasoned consideration based upon the bulk of the evidence on the issue of the reasonable foreseeability of injury.

In relation to quantum Mr Utley submitted that the parties were agreed that the appropriate category in the Judicial College Guidelines was 5 (A) (g): “Minor but permanent impairment of vision in one or both eyes, including cases where there is some double vision, which may not be constant.” The bracket for that category was £6,700 to £15,400. The claimant had undergone what must have been a frightening experience when he lost his vision on 21^st August 2008. Fortunately, however, his vision had returned on that day, although he was left with a field defect which, for some two years, had prevented him from driving. It would seem that there was some permanent impairment, although the claimant had made no complaint about it in evidence. He gave no evidence of any particular problems caused by his inability to drive for two years (his employers paid for his use of public transport for work and he had said nothing about problems with private travel – perhaps his partner drove him).

The claimant had submitted at trial that, in addition to general damages for pain and suffering and loss of amenity, he should be entitled to an award of damages for loss of use of a car (in addition to the special damages he was awarded for loss of profit on his work mileage allowance). The defendant had submitted that that was plainly wrong: claimants were entitled to damages for loss of use of a vehicle which has been damaged in an accident, but they were not entitled to damages for loss of use of a car because their injuries prevented them from driving; that was a loss of amenity which was included in the general damages for pain and suffering and loss of amenity. Accordingly Mr Utley submitted that the learned judge was wrong to add £5,000 to her conventional award (which was not challenged) of £12,000. The agreed category in the Judicial College Guidelines must already have taken account of inability to drive. Many claimants who suffered, for instance, permanent impairment of vision in both eyes (this was only one) must be unable to drive as a result (possibly for ever). There were no grounds for making an award significantly higher than the top of the bracket.

Accordingly Mr Utley submitted that the appeal should be allowed or, alternatively, that damages should be reduced to £12,000.

Mr Baker sought to support the judge’s conclusions both in relation to liability and quantum. It is not necessary to rehearse his submissions in any detail since they are largely reflected in the reasons which I give below for my conclusion that the judge’s decision as to both liability and quantum should be upheld.

In my judgment the defendant’s challenge to the decision of the judge both in relation to liability and quantum should be rejected. My reasons may be shortly stated as follows.

The judge was in my view perfectly entitled, on the evidence before her, to conclude that it was reasonably foreseeable that injury would be caused if a customer was launched on a ride without warning. On appeal the defendant correctly did not contend that vertebral artery dissection, rather than personal injury in general, needed to be foreseeable: see e.g. The Wagon Mound [No1] [1961] AC 388; Hughes v. Lord Advocate [1963] AC 837.

I reject the suggestion that the judge placed too much emphasis on the defendant’s own guidelines in coming to her conclusion that it was reasonably foreseeable that, if no warning was given, injury might result. As Mr Baker pointed out, the defendant’s argument that the failure to adhere to the defendant’s own strict guidelines did not give rise to a foreseeable risk of injury was a late development. The defendant’s pleaded case admitted the guidelines and that they were intended to reduce the risk of injury to participants on the ride. The defendant’s pleaded case was that the claimant was not launched without warning and that his head was not thrown about violently. The defendant sought to undermine the force of the guidelines at trial by suggesting that the safety warning did not apply to the systems of operating the ride but only to its components; and that operators of the ride in Europe did not rely upon the countdown, despite conceding that the guidelines were drawn up by the French manufacturers of the ride. The judge rejected the argument, as she was clearly entitled to do, that the guidelines only applied to the components of the equipment and not to the operation of the ride itself.

It is clear from the judgment that the judge properly considered, on the basis of the evidence before her, whether there was any force in the defendant’s argument that it was not a breach of duty of care to launch a customer without warning. She rejected that argument fully taking into account the evidence of the defendant’s own witnesses. She concluded on that evidence, as she was entitled to, that normally the defendant did indeed strictly follow its own guidelines when it came to giving a warning before launching the ride, although that might be modified during the operation of a second turn on the ride to simply asking the customer if he were ready rather than giving a 3,2,1, countdown. In coming to that conclusion she had clearly fully taken into account both the oral and witness statement evidence of the defendant’s own witnesses, Mr Sinclair and Mr McKellar, as to the guidelines and the training which they gave to staff and their own denials that they would have ever launched a client without warning.

There is nothing, in my judgment, in Mr Utley’s criticism of the judge’s alleged failure not to have given adequate consideration to the evidence of Professor Venables and Mr Mutch in the context of reasonable foreseeability. There was nothing in their evidence which added any support to the defendant’s thesis that risk of injury was not foreseeable in the absence of a warning. On the contrary Mr Mutch’s evidence directly supported the proposition that there was an increased likelihood of injury being caused if the customer was not warned to brace prior to launch. Likewise, Professor Venables’ evidence that it was foreseeable that the Hyper-Jump could cause injury because arterial dissections might happen without any, or only minor, trauma, could hardly be said to be supportive of the proposition that it was not reasonably foreseeable that injury would be caused in the absence of a warning of an imminent launch. The judge clearly had well in mind in her extempore judgment the evidence which given the day before by the experts and indeed she refers to certain sections of it in her judgment.

Moreover, as Mr Baker submitted, in the circumstances it was not perhaps surprising that there was not any broader analysis about the extent to which personal injury, or injury to the neck, were the foreseeable consequences of an unexpected launch. The issue had not arisen as a significant issue before trial; nowhere in the defendant’s witnesses’ evidence before the court did they go so far as to say that it would be without risk to launch a person without warning. Indeed the common approach appeared to have been that ordinary operations of the Hyper-Jump did not give rise to unexpected launches because the guidelines in relation to giving prior warning were complied with. As the argument on reasonable foreseeability had been raised late, the parties had not been able to engage in a broad assessment of the experiences of other businesses operating the ride in circumstances where no warning had been given.

Thus I accept the fact that the absence of any previously reported injuries in the operation of the ride did not per se demonstrate that such injury was not reasonably foreseeable. As Mr Baker pointed out, a number of factors might have contributed to the fact that the defendant had not been the recipient of previous complaints. These included the fact that soft tissue neck injuries rarely present themselves until several hours after an accident is sustained and so many customers might not complain of very short-lived symptoms, associated with using a fairground ride, or might well have moved away from the location by the time that the symptoms presented. Moreover the medical evidence demonstrated that vertebral artery dissection did not always lead to stroke, was a rare complication of soft tissue neck injury and therefore unlikely to present very often.

In my judgment, in all the circumstances the judge was perfectly entitled on the evidence before her, including the guidance provided by the manufacturers of the ride, the defendant’s guidelines and practice relating to the operation of the equipment and the defendant’s approach to training and ride safety, to conclude that the risk of injury to the neck was a foreseeable consequence of launching a customer without warning when he was not braced. Accordingly this is not a case in which it would be appropriate for this court to interfere with the judge’s findings of fact in relation to liability and I would dismiss the appeal in this respect.

I would also dismiss the defendant’s appeal in relation to quantum.

As Lord Donaldson of Lymington said in the foreword to the first edition of the Judicial College’s “Guidelines for the Assessment of General Damages in Personal Injury Cases” (“the Guidelines”):

“It [the Guidelines] was not intended to represent, and does not represent, a new or different approach to the problem. Nor is it intended to be a “ready reckoner” or in any way to fetter the individual judgment which must be brought to bear upon the unique features of each particular case. ”

Moreover, as stated in Clerk & Lindsell on Torts, 21^st edition, paragraph 28-57, the starting figures stated in the Guidelines may then be adjusted to take account of the special features of the claimant’s case. The judge clearly recognised this principle as, in a short judgment which she gave when refusing permission to appeal, she referred to the fact that: “the judicial guidelines are guidelines. They are not a straitjacket.”

There was no challenge by the defendant to the figure of £12,000 for general damages for pain and suffering and loss of amenity. What was said by Mr Utley was that that figure should have included a figure for the loss of amenity of being able to drive a car for two years, as the bracket in the guidelines necessarily took account of the claimant’s inability to drive.

I disagree. Without in any way attempting to articulate or establish prescriptive rules as to what is, and what is not, included in any relevant bracket contained in the Guidelines for general damages for loss of amenity caused by personal injury, I have no doubt that, in the particular circumstances of this case, the judge was clearly entitled to conclude on the evidence before her that the sum of £12,000 which she had awarded for pain and suffering and general loss of amenity was not sufficient on its own to compensate the claimant for loss of the particular amenity of being without a car for two years. Nor do I see anything wrong with the fact that the total figure of £17,000 exceeded the Guidelines’ bracket of £15,400.

The judge was clearly entitled to take the view that, whilst the sum of £12,000 might have been sufficient to compensate the claimant in respect of his short-lived whiplash injury and his stroke, it was not sufficient to compensate him for the considerable inconvenience of being unable to drive a car for two years and the continued significant impairment of his sight during that period such that his driving licence was withdrawn for almost 2 years. Moreover, on any basis, the continued loss of vision suffered by the claimant remains serious and can only just be described as “minor”. He continues to suffer from a significant absence in his field of vision which continues to trouble him, although he has learned to adapt so that his loss of vision does not disable him. The judge was in my view entitled to conclude that, in addition to the general loss of amenity quantified at £12,000, the claimant was additionally and significantly inconvenienced by the loss of the use of his motor car in the two-year period following the accident. The fact that his employers appeared to have funded taxis and public transport to enable him to continue in his job did not prevent his loss of the use of his car, both for private and for work purposes, being considerable. (There was no question of double counting in respect of loss of the profit which he was awarded in respect of his lost fuel allowance, and Mr Utley did not seek so to suggest.)

I see nothing wrong with the judge roughly basing her calculation of £5000 either by reference to a notional figure of £15 per day loss of use over a period of 23 months (as Mr Baker suggested she had), or, alternatively, by reference to what the claimant had lost in respect of his leasing agreement (as the judge mentioned in her written reasons for refusing permission to appeal). It is not clear precisely how she reached the figure of £5000. In my view, in the circumstances of this case, that does not matter. As Mr Baker submitted, there have in the past been cases where a separate award has been made for loss of use of motorcars, in cases where that loss was not already contemplated as part of the award for general damages for pain, suffering and loss of amenity (generally speaking minor injury cases arising from road traffic collisions). That practice has become more unusual since the rise of credit hire companies.

Thus for example in Lagden v. O’Connor [2004] 1 AC 1067, Lord Nicholls said at page 1071 G-H:

“When one person's car is damaged by negligent driving on the part of another motorist and the damaged car is economically repairable, the owner of the damaged car loses the use of his vehicle while it is being repaired. In the ordinary course the damages payable by the negligent driver include, in addition to the cost of repairs, damages for loss of use of the damaged car. In the ordinary course the reasonable cost of providing the innocent motorist with a suitable replacement vehicle while his own car is off the road crystallises the amount of loss suffered by him under this head of loss. In practice it is a convenient yardstick by which to measure the damages payable to the innocent driver for temporary loss of use of his own car”.

In the present case the claimant did not seek to contend that he was entitled to rely upon spot rates representing the cost of hiring a car. As Mr Baker submitted, whilst that might have been a reasonable yardstick in some cases, here the claimant could not mitigate his loss by hiring a car and took the reasonable approach of suggesting a modest daily rate representing loss of use.

I conclude that the judge, on the evidence before her, was entitled to make an award of general damages reflecting the claimant’s loss of use of his car, notwithstanding that the result was to increase the award of general damages to a figure outside the relevant bracket. She was entitled to conclude that a total figure of £17,000 accurately reflected the claimant’s loss of amenity because of the special features of the claim. I would not consider it appropriate to interfere with her assessment, as trial judge, of the quantum of general damages.

Accordingly I would also dismiss the defendant’s appeal in relation to quantum.

I agree.

I also agree.