Claimant is the Author of his Own Misfortune

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25 July, 2019

W v A Family Leisure Park

The Facts

In August 2015, the Claimant and his family visited a theme park owned by the Defendant. The Claimant alleged that he was sitting at a table in the restaurant when his chair simply collapsed. He suffered neck and back injuries as a result of the incident.

The Claimant argued that the Defendant, as occupier, was in breach of the common duty of care under s.2 (2) of the Occupiers Liability Act 1957 ("OLA") to take reasonable care to ensure the safety of visitors using the premises.

The Trial

The issue before the Court was what had caused the chair to collapse? The Claimant alleged that he was doing nothing untoward and was sat on the chair properly when it gave way. The Defendant argued that the Claimant was leaning backwards on to two of its four legs and sought to rely on the defence under S.2 (5) OLA, which states that occupiers are not liable for risks willingly accepted by visitors.

The Claimant, his wife and two daughters all gave evidence that the Claimant would not rock on his chair and they didn't believe that he had been rocking prior to it collapsing. The Defendant relied on the evidence of an independent witness who, entirely of his own volition, contacted the Defendant's staff to put himself forward as a witness. His evidence was that he noticed the Claimant rocking backwards on his chair prior to the accident.

The Judge concluded that for the Claimant's claim to succeed he had to find that the independent witness had given false evidence, and he was not convinced that was the case. On the balance of probabilities, he found that the Claimant was rocking and had willingly accepted the risk of injury. The claim was dismissed.

Forbes Comment

It was the Defendant's case that the Claimant was the author of his own misfortune; he had used the chair in a dangerous and inappropriate manner. The evidence from the independent witness was crucial and was ultimately preferred by the Court. This case demonstrates the importance of gathering contemporaneous evidence and where possible taking the details of all witnesses who might be able to assist in the successful defence of a claim.

For more information contact Nick Holgate in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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