January 27, 2020

Clyde & Co successfully defend claim on behalf of fairground owner

Clyde & Co has successfully defended a claim on behalf of a fairground owner, which resulted from the unsafe manoeuvring of a HGV severely injuring the Claimant on Cambridge Common.

The event organiser had alleged that during the stage where the fairground materials were being brought to site and constructed, our client was responsible for control, possession and management of the Common, including those areas outside the fairground site. We successfully argued that the circumstances and contractual documentation indicated that our client held no liability for the Claimant's injury; having occurred away from the fairground site.

Our client was held to have no liability to the Claimant or the co-Defendants.

Background

The Claimant was pushing her bike across Cambridge Common; a bonfire event, including a fairground, was being set up in the area. As she walked across the Common, a HGV carrying dodgems for the funfair collided with her, trapping her underneath the vehicle. Unfortunately, the Claimant suffered very serious injuries, including the amputation of her right leg.

In 2018, the event organiser, Cambridge Live was convicted of offences under section 3(1) of the Health and Safety at Work Act 1974 as it failed to conduct its undertaking in such a way as to ensure that persons not in its employment, namely the Claimant, were not exposed to risks to their health and failed to make a suitable and sufficient risk assessment.

The Claimant issued proceedings against:

  • the self-employed driver of the HGV ("D1"));

  • Cambridge Live ("D2"); and

  • our client, Stanley Thurston, the owner of the fairground ("D3").

The Claimant alleged that D1 had not taken sufficient care when manoeuvring his vehicle resulting in her injuries. D2 and D3 were later added to proceedings. The Claimant alleged that both D2 and D3 were responsible for the operation and management of the fairground activities, and failed in those duties by allowing her to walk across the Common whilst preparatory work was ongoing.

D2 alleged that the safe movement of the vehicles on the site was the responsibility of D3 alone. We denied those allegations on behalf of D3, submitting that D2 retained control, possession and management of the Common, including the site of the fairground. D2 also brought an additional claim against our client for a contractual indemnity and/or contribution pursuant to an Open Space Hire Agreement ("OSH Agreement").

The matter proceeded to a Trial on the issue of liability.

Trial

Contributory negligence on the part of the Claimant had been agreed by all parties at 12.5% before the hearing. The remaining apportionment of liability was to be determined at the Trial.

The parties made submissions on their possible liability. D1 submitted that D2 and D3 should bear the majority of responsibility, whereas D2 and D3 argued that the majority of the blame should lie with D1, notwithstanding their dispute regarding the operation and management of the Common.

As to the dispute between D2 and our client, the OSH Agreement included a plan with the outline of the fairground zone marked in red. We submitted throughout proceedings that this area of responsibility fell within that marked area, "the fairground area". The accident had occurred outside of the fairground area.

We argued that D2 carried the responsibility for the safe movement and marshalling of fairground vehicles into and around the site. We also argued that, although the D3 had permission to occupy the land marked red on the plan, the D2 retained control, possession and management of the Common which included the fairground site.

Whilst it was admitted by our client that once fairground vehicles arrived within the fairground area they fell within its responsibility, it was the responsibility of D2 to ensure that vehicles safely moved across the Common to the fairground area.

Judgment

HHJ Tattersall QC described the employees of D2 as having "many years' experience of planning, management, organisation and procurement of outdoor events". He accepted our argument that D2 was "the 'organiser' of the entire event and had an overall responsibility for all aspects of safety on the site save where that happened within the fairground site where such was the responsibility of the 3rd Defendant."

HHJ Tattersall QC agreed with our submissions, finding that our client owed no duty of care to the Claimant as it "had no responsibility for vehicles as they travelled through the Common." This was the responsibility of D2. On that basis, the claim by D2 for a contractual indemnity against our client on the basis of the OSH Agreement was doomed to fail because the "accident was directly caused by D2’s negligence."

Regarding the negligence of D1 and D2, the Judge was satisfied the principal cause of the accident was the negligence of D1.

It was the driving of D1 which caused the accident; he should have seen the Claimant. Furthermore, he had no banksmen to direct the HGV; if he had sought this assistance such banksmen would have seen the Claimant. The Court noted that "D1 would have realised that, given the size and weight of his vehicle, that the consequences of his vehicle being in collision with a pedestrian would have been catastrophic for the latter."

However, the responsibility of D2 was "significant and by no means minor" for its failure to provide a safe environment for vehicles to manoeuvre away from cyclists and pedestrians.

Of the remaining 87.5% negligence, the judge found the D1 was 65% liable and the D2 35% liable.

What can we learn?

  • Event organisers should ensure they have specific risk assessments in place. In this case the judge noted there was a generic risk assessment "dealing with the mix of vehicles, pedestrians and cyclists and the risk of accidents" but there was nothing specific to "address the setting-up phase of the fairground when the risk of accidents was bound to be at its highest".

  • Where multiple companies / contractors are on site there needs to be a clear indication as to who is responsible for specific areas or roles. Parties cannot assume that another company or person is taking on the responsibility when there is no clear indication in writing or a risk assessment.

Authors: Kate Duffy, Partner and Hannah Shaw, Senior Associate