Kerr v Willis [2009] EWCA Civ 1248

Case No B3/2009/0416[2009] EWCA Civ 1248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE HOLMAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 4 th November 2009
Before
THE MASTER OF THE ROLLS(LORD NEUBERGER OF ABBOTSBURY)LADY JUSTICE SMITHLORD JUSTICE TOULSON
Between
KERRAppellantWILLISRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ian Little (instructed by Messrs Thompsons) appeared for Appellant.Mr Tim Horlock (instructed by DWF LLP) appeared for Respondent.
JudgmentLady Justice Smith
[1]This is an appeal from the order of HHJ Holman, sitting as a judge of the High Court in Manchester on 9 January 2009. Following the trial of the issues of liability only, the judge dismissed the claim for damages for personal injuries brought by the claimant, Andrew Kerr, against the defendant, Gerard Willis.[2]The claimant suffered a catastrophic spinal injury in the course of a game of five-a-side football played on an indoor pitch at Littleborough Community Sports Centre near Rochdale on 10 February 2005. The building was of brick construction, with the internal walls clad with plywood. The claimant was injured when he collided with the end wall of the hall head first and at speed. He sued Mr Willis, a player on the opposing team, alleging that Mr Willis had tackled him improperly from behind, in effect committing a foul at a time when he, the claimant, was running up the side line and was not far from the end wall. This tackle had pitched him forwards and into the wall.[3]Mr Willis denied liability, alleging that his play had been within the rules, and that the injury had been as a result of a pure accident. He also contended that the tackle had not taken place near the wall but an appreciable distance from it.[4]On the pleadings, the claimant’s case was that the defendant’s tackle had been a foul because he, the claimant, had not only reached the ball and brought it under his control but had also kicked it away towards the goal. In the alternative, it was said that the defendant had barged or pushed the claimant from behind and, because this was done in close proximity to the wall, it was dangerous. The judge rejected both limbs of the claim, holding that the defendant’s tackle had not been late, in that the claimant had at that time not kicked the ball away. He also held that the claimant had not been barged from behind. The claim was dismissed and the claimant appeals to this court.[5]The players were members of a group of friends who met regularly at the sports centre. The teams were chosen each week from those who turned up. The choice was made so as to make up two teams of similar strength, so the appellant and Mr Willis, the respondent, might play together one week and against each other the next. There was no referee. The men policed the game themselves and had devised some local rules. The men were all friends and there was never at any stage any allegation that the respondent had been motivated by malice. The layout of the pitch was unmarked, with the goals at the centre of each end of the hall. The photographs we have seen show that the outer boundary lines of the pitch were only about one metre from the walls.[6]No criticism is made on this appeal of the judge’s statement of the law. The appeal turns on his findings of fact. Nonetheless, I think it is useful to set the case in context by stating how the judge directed himself as to the law. He referred to the case of Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054. In that case a professional jockey had been injured in a horse race. The judge summarised the principles to be derived from that case and then set out the law as he intended to apply it in the present case. At paragraph 14 of his judgment he said:
“The test is therefore the normal test in negligence cases. Did the defendant so conduct himself as to be in breach of his duty of care to the claimant and expose the claimant to a reasonably foreseeable risk of injury? The test must however be applied having regard to all the circumstances of the case, which inevitably include the fact that football is a contact sport played at speed, and, on the evidence of this case, in this instance in a competitive manner.”
A little later, in paragraph 15, he said:
“All the circumstances must also, in my view, include that the game was being played not on an open pitch, but in a sports hall with solid walls, although one does also have to put into the equation that the walls are in effect part of the pitch, because the players regularly used the wall as a method of propelling the ball.”
No criticism was made on either side, nor indeed could it be of that exposition of the way in which the law was to apply to this case.[7]Of the ten players taking part in the game eight gave evidence at the trial. The judge accepted that all of them were honest witnesses doing their best to help him. But he said it was difficult for them to give an accurate and reliable account of what had happened in respect of an incident that had occurred in a split second almost four years earlier. Some witnesses had in any event not had a very good view. The evidence of those who had was to some extent affected by innocent reconstruction. The accident happened when the appellant was on the attack, chasing a ball which had been kicked up the pitch towards the goal being defended by the respondent’s team. The appellant was running as fast as he could, fairly close to the sideline. The respondent, seeking to get to the ball first, was running as fast as he could diagonally across the pitch. It seems to be common ground that the appellant had a headstart, but there was a dispute as to who reached the ball first.[8]The appellant’s primary case was that he had reached the ball first and had actually played it when he was tackled or challenged or barged from behind by the respondent. That caused him to lose his balance and to pitch into the wall. This late tackle or challenge was a foul because the appellant had already played the ball. If it was a foul, the submission was, it would be in breach of duty.[9]The respondent’s case was that the two men had been chasing the ball and got there at the same time. They were challenging each other for the ball. The respondent was unsure who touched the ball first but what he had done had not been a foul. His explanation for the accident was that the appellant appeared to lose his balance as he stretched out with his leg towards the ball.[10]The other witnesses did not support the appellant’s claim that he had kicked the ball away before he was tackled. They described the two men chasing the ball, the appellant having a headstart but the respondent being faster on his feet. Their impression was that the two players reached the ball at almost the same moment. There was disagreement as to who touched it first.[11]The judge did not make a definite finding as to exactly what had happened; he said he could not. But he rejected the appellant’s evidence that he had already played the ball away before the tackle. He did so because the witnesses who could see what had happened agreed that the ball did not move towards the goal. The judge inferred from that that this was not a late tackle and therefore rejected the appellant’s primary case.[12]Mr Ian Little, on the appellant’s behalf, submits to this court that the judge was not entitled to reject the claimant’s evidence that there was a late tackle. The judge, he submits, had misunderstood the appellant’s evidence. The appellant’s evidence was that he kicked the ball towards the goal before he felt himself being pushed from behind. He had not asserted that the ball had actually travelled towards the goal. The judge should not have inferred that he had not kicked the ball merely because the witnesses had said that the ball did not go anywhere. I can see some force in that submission standing alone. However, the evidence from the witnesses, who had a reasonable view, was not merely that the ball did not move away from the appellant; it was also that the appellant and the respondent reached the ball virtually simultaneously. In other words this was not a late tackle. If the appellant had managed to kick the ball, the tackle was taking place at the same time and it could not described as a late tackle and therefore a foul.[13]I consider that, for the reasons he gave, the judge was entitled to reject the appellant’s first way of putting his case.[14]However, the main arguments in this appeal arise from the appellant’s alternative way of putting his case. This was that the tackle or challenge from behind had taken place too close to the wall and was dangerous. It was not being said that any tackle or challenge near to the wall was dangerous. Nor was it being said that any tackle from behind (although a foul) would necessarily be dangerous. But the combination of a tackle foul from behind taking place near the wall would be dangerous and a breach of duty. The judge accepted that submission as a theoretical proposition.[15]There was a dispute about where the challenge had taken place. The appellant marked on the photograph a position only about two metres away from the end wall. The respondent marked a cross placing the challenge or collision point a very substantial distance further back from the wall. He was cross-examined about the dangers of tackling or challenging when close to a hard wall. He admitted that, for reasons of safety, one should not tackle or challenge when near the wall. His words were:
“I am saying you’ll take the consideration of where you play. So if you’re near the wall you would not go into a challenge. You don’t do it.”
The thrust of the point being made by counsel in this cross-examination was that here was an experienced footballer admitting that it was dangerous to tackle near the wall and in the same breath asserting that this tackle had taken place a good distance away from the wall. It was an attack upon his credibility and was to a real extent successful. Although the judge did not say so in terms, it is clear that he was thereafter circumspect about the respondent’s evidence. The judge accepted that the tackle had taken place roughly where the appellant claimed. Other witnesses supported that and indeed it is hard to see how the appellant could have been injured if it had taken place where the respondent alleged. So the respondent had proved that the tackle had taken place in a potentially dangerous place. However, as counsel for the appellant had explicitly accepted during his closing submissions, his secondary submission could only succeed if the tackle was a push or barge from behind. It had always been the appellant’s case that he had felt a push from behind. That is what had caused him to pitch forward. He had not tripped or lost his balance. The judge held that it was neither. It is that finding which was the main focus of the appellant’s attack.[16]The judge’s reasons for so finding were as follows. First, he said that because he had to reject the appellant’s evidence about having kicked the ball away, that meant he had to regard with caution the appellant’s claim that he had been barged in the back. The judge was not suggesting that the appellant was trying to mislead him, but he thought that his recollection was at fault. He observed that the appellant was the only witness who had said that he had been barged from behind. Other witnesses had spoken of shoulder to shoulder contact, which, said the judge, was not the same thing. The judge accepted that there were inconsistencies in the other witnesses’ evidence. However, he thought it significant that none of the eyewitnesses (even including those who had given evidence for the appellant) had criticised the respondent or had said that what he had done was a foul or was in any way out of order. A push from behind would have been a foul and would have been out of order. Moreover in his witness statement, when speaking to his medico-legal adviser, the appellant himself had not described what had happened to him as a barge. He had spoken of a tackle or challenge. It was only in the witness box that he had used the term barge.[17]Mr Little, for the appellant, submitted today that the judge was not entitled to reject the appellant’s evidence. He had done so primarily because he had rejected his evidence about how he kicked the ball away before the tackle. He had misunderstood the appellant on that point. The misunderstanding on that point had undermined the judge’s confidence in the appellant’s evidence on other points. But it should not have done so. The appellant had always consistently claimed that he had been falsely tackled from behind. It mattered not whether he called it a tackle or a barge. He had been entirely consistent as to the essence of his complaint. Also he had been consistent as to his claim that he was projected forwards by that push. He had not tripped or lost his balance. The mechanism of the accident, submitted Mr Little, was wholly consistent with the appellant’s account; indeed it was supportive of it. The appellant was on all accounts an honest witness. He was the only person who knew what had happened. All the other players had had an imperfect view of what had occurred. The respondent’s evidence was not to be trusted as accurate, for the reasons already outlined. But, Mr Little submitted, if it had not been for the judge’s misunderstanding of the evidence about getting the ball away, the appellant’s evidence would have been accepted as reliable as well as honest.[18]I can and do see the possibility that the judge might have misunderstood the appellant when he spoke about kicking the ball. It is possible that the judge thought that he was saying that he had successfully kicked the ball away in the direction of the goal when all he was really saying was that he had attempted to kick the ball in that direction and did not know whether it had gone. If there was such a misunderstanding, I can see how it came about. The appellant’s evidence was not entirely clear and it had certainly changed to some extent between his witness statement and his oral evidence.[19]However, quite apart from the lack of clarity in the appellant’s evidence, the judge was entitled to look for some support for the appellant’s account. As he observed, a person in the appellant’s position who has suffered grievous injury may well give an honest but mistaken account of events. So I can well understand why the judge had doubts about the appellant’s reliability as a witness. It was entirely natural that he should wish to check the accuracy of that evidence against other factors and evidence. When he did so he found no support for the appellant’s account. No-one else described a push from behind. Others described side-by-side contact at shoulder level or possibly at hip level. Also, it seems to me that the judge was entitled to take into account the fact that no-one, not even the appellant’s best friend, said that the respondent had committed a foul. Indeed that witness described the incident as a pure accident. Further, I do not think that the judge could be criticised for not accepting the appellant’s theory about the mechanism of the accident as positive support for his evidence as to how it happened. Certainly the way in which the appellant was projected forwards was consistent with a push from behind but it was also consistent with a trip or a loss of balance.[20]My conclusion is that, notwithstanding the attractive and persuasive way in which Mr Little advanced his arguments, he has not demonstrated that the judge erred. In my judgment the judge was entitled to make the findings of fact he made and to reach his conclusions.[21]Cases of this kind are heart-rending and I believe that all the members of this court feel immense sympathy for the appellant and his family. It is tragic to see a healthy man enjoying a friendly game of football struck down in this way. The conclusion I have reached, with which I believe my brethren agree, will mean that the appellant does not receive any damages. I fear that the granting of permission to appeal, which was my responsibility, may have raised his hopes and they are now finally dashed. But I hope that he will at least accept that this court has examined the judgment anxiously and with care.

Lord Neuberger:

[22]I agree.

Lord Justice Toulson:

[23]I also agree.

Order

Appeal dismissed