Janet Watson’s cycling blog

April 23rd, 2013

The sociable cycling group’s summer calendar has commenced (at last)!  Usually we start cycling as soon as the clocks have gone forwards an hour but this year we were up to our proverbials in snow drifts and only the fools and the hardy were out in that. So on a sunny day last week we all met up hoping that our various ailments, from arthritic hips, dodgy knees to inguinal hernias would feel a lot better after a bit of exercise and fresh air.

Our taster run was the Kirklees Greenways starting from Leeds road industrial park, over the railway line and off towards Dewsbury using the Calder Valley Greenway and part of the Spen Valley  Greenway, with a lunch stop at the Old  Stables café. This is next door to the Leggers Inn  Dewsbury basin, where we were able to sit outside, by the side of the canal boats and turn our pale wintery faces to the sun.

 It is not a long run but it is a good start on a sunny day in spring when we never thought that spring would arrive with all that snow and the bitter cold winds whipping snow flakes into huge drifts, and it whets the appetite for more cycling to come.

 This signed and mainly traffic free route is 14 km (8.25 miles) between Huddersfield and Dewsbury town centre and is ideal for a leisurely paced ride for families (or the over 50s!) It winds along flat tarmacadam tracks running alongside the rivers Colne and Calder and through farmland and woodland areas, between Mirfield and Dewsbury. It follows an old railway line and even goes through a long dark tunnel.

  Kirklees council green network was created to promote the district as a beacon for green living. The route is a partnership between Kirklees council, Sustrans, Yorkshire water and Yorkshire forward.  It is a brilliant idea creating a safe corridor for cyclists and walkers between the towns. It joins with the Spen Valley Greenway which leads onto Bradford and a route to Wakefield is also being developed so the potential for cycling between cities and towns in our area is enormous.

 The only fly in the ointment is the amount of litter strewn around in some of the areas and the broken glass on the trail is potentially very dangerous indeed. There were families with small children on bikes as we rode along, as the Easter school holidays had not finished.  Children do tend to wobble and over balance. What would normally be a little tumble could become a very nasty accident. I understand that the wardens patrolling the greenway struggle to keep up with the amounts of rubbish – sometimes even bags of rubbish- left there. This does seem a real shame and likely to put people off using it.

 If we are to create cycle paths in an attempt to create a safer environment for cyclists  – particularly young cyclists we also need to make sure that these will be properly maintained and policed otherwise they will not be used.

 The CTC national cycling charity quite rightly is urging the government to put cycling on the national curriculum; arguing that like swimming, cycling is a valuable life skill and if you don’t learn to ride a bike as a child you are less likely to take this up as an adult. Sadly cycle use for teenagers has reduced in recent years –  mainly due to the increase in traffic on our roads and risk averse parents. Improving conditions and provision for cyclists is essential if we are to get more young people cycling. It is also vital that children learn basic road sense and hazard perception in order to deal with the road conditions as they are now.

  I believe that the more safe cycle ways there are, the greater the opportunity for children, young people, families and the not so young have for getting out and about on their bikes and developing the skills for reasonably safe travel on our congested roads.

 We all need to help to preserve these greenways and regularly report any litter, broken glass and graffiti so that something can be done about it, before it causes or contributes to a serious accident.

 The council and private landowners are  under a duty to keep cycle path users reasonably safe and consequentially they should inspect the paths on a regular basis , for hazards and maintain where necessary.

 If you are unfortunate enough to have an accident, and are injured, in these circumstances and if you are able, take photographs of the location of the accident and the surrounding area so that the accident site can be recognised. Take details of any witnesses (name, address and contact number) and contact me, Janet Watson on 01484 558839 for some free, no obligation initial advice.

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Janet Watson’s blog – ski-ing.

February 26th, 2013

Janet Watson, fearless skier

So here I am returning from a skiing holiday in the French Alps suffering from a minor whiplash injury and my head feels as though it’s about to drop off.  All due to a “Bridget Jones” moment when I was hit by a chair lift, which naturally led me to thinking about how easy it is to have an accident when you go on a skiing holiday, but we all hope that we will have an enjoyable and exhilarating  holiday and will return home without any broken bones. 

On this occasion,  I had just spent a pleasant 15 mins  travelling up the mountain sitting and taking in the spectacular views  on said chair lift with friends and my husband. Unfortunately at the end when you are supposed to ski nonchalantly away and off down the slope I struggled to get away fast enough as my husband invaded my space!

 I would say, that if there’s any doubt blame the husband!  The edge of the chairlift then whipped round before I had cleared the area and floored me. My head hit the ground and knocked off my hat and surprisingly my goggles, but not my skis so I was left spread eagled  on the floor like a fluorescent insect. The lift was stopped and the attendant had to pull me to my feet whilst my skis headed off in the other direction and people already on the chairlift enjoyed the spectacle. I am not the best skier on the slope but I do like to maintain the illusion that I could be brilliant with a following wind, so that illusion was shattered..

 Another lift, same husband and my skis were attached to his because again he was too close! So we careered off down the mountain locked together and not in a romantic way, with him shouting “you’re on my skis, you’re on my skis” as though I could do anything about it before collapsing into an ungainly heap. Fortunately no bones broken but they could have been.

  I read in the paper recently that a third of all skiers risk hefty hospital bills, without insurance cover. Apparently this winter an estimated 900,000 Britains are expected to hit the slopes but travel industry body ABTA says one in three who go skiing or snowboarding will not bother with insurance leaving them financially exposed if they have an accident. Almost half winter sports enthusiasts interviewed said they have hurt themselves at least once and of those six in ten had a significant injury. Top British skier Chemmy Alcott who herself was seriously injured whilst competing says “There’s no beating about the bush – skiing is a dangerous sport”

 In addition to your own shortcomings you also have the kamikaze skiers of the “visibility is poor but the skiing is mint” fraternity who hurtle down the slopes totally out of control leaving other skiers diving into the snowdrifts to get away. These skiers could do serious harm.

 We met someone on holiday who had an apartment in the resort and one week into her holiday she was happily skiing down a slope and over a bridge into the town at a very sedate pace (she is in her 60s) when a skier came straight across her path and took her down. She sustained a broken femur which had to be pinned and she was essentially non weight bearing for six weeks. In consequence she was apartment bound until the insurance company agreed to pay for a relative to fly out to drive her car home and bring her with them The drive to the south of England from the French Alps takes about 10 hours, so not a very pleasant way to end the holiday.

 She was fortunate in that she was insured. It is unlikely that the other skier would have been covered for causing injury to others whilst skiing. It also depends on the level of insurance you take out.  If you or your family have been very seriously injured and your insurance cover is not sufficient to pay for the care you need you may feel aggrieved and want to sue for damages to compensate. But who should you sue?

As a personal injury lawyer I have been asked to advise in cases where people have had skiing accidents which were not their fault. On one occasion a child was injured as a kamikaze skier ploughed into a crocodile of children attending ski school.   The child in question had to be airlifted off the slopes and spent the rest of the holiday in hospital. His parents had to fly out to be with him and although fortunately he recovered from the ordeal he was left with pins and plates in his leg from the serious fractures. The parents assumed that the man who ploughed into the ski school would have to pay up but he did not have any insurance, the boy’s school were not at fault as care had been taken in organising and undertaking the trip and  the ski school were not at fault as they were not doing anything dangerous . The accident had been caused by a person who was out of control on the slopes and no one else was at fault.

 It is a brave lawyer that would take on a personal injury claim involving a skiing accident in a foreign country, as it is very difficult to prove fault in such circumstances.

 In the case of Anderson v Lyotier and Anor (t/as Snowbizz) the claimant Graham Anderson was on a family holiday which had been booked in England with the Defendant Snowbizz. This was the third holiday taken by the Anderson family at Puy St Vincent through Snowbizz. The cost of the holiday included ski school. An accident occurred whilst the Andersons were at ski school and the issue raised in the claim related solely to the role of the ski instructor for whose actions under English law Snowbizz were responsible by virtue of Regulation 15 of the Package Travel Package Holidays and Package Tours Regulations 1992. It was accepted on behalf of the instructor’s insurers that if liability was established they would ultimately be responsible for meeting the claim.

 Graham Anderson and his family arrived at the resort one Sunday in February. On the following day in accordance with the usual arrangements they were assessed by the director of ski school who assigned them to a group led by an experienced ski instructor. There were other people in the group all of varying abilities. It was not however maintained that the selection of the group was negligent or inappropriate.

 The accident took place on the last day of skiing. On the third day of skiing the group had skied on relatively flat off-piste terrain. The claimant stated that he had struggled with skiing there and unbeknown to the instructor had bumped into a tree.

 On the fourth day the group skied off piste through trees and Graham Anderson and another pupil fell over numerous times. The next day they skied down a steep on-piste slope. Mrs Anderson who had been absent from the group the previous day and another pupil expressed concerns about the steepness of the slope but with the instructor’s guidance the group reached the bottom of the slope without falling.

 On the day of the accident the group was asked to ski down a steep off-piste slope and make a turn around a bush. Mr and Mrs Anderson’s evidence was that they felt they had no option but to comply. One pupil skied down and after he reached the bottom Graham Anderson attempted to follow. Anderson made a turn but lost control whilst making a second turn and then collided with a tree. He sustained injuries that rendered him tetraplegic.

 The ski instructor admitted that he knew the resort very well and had been present and able to take everything into account when deciding what the group was going to do. He further argued that the risks he ought to have had in mind when assessing the suitability of the slope could not reasonably have included an accident of the sort that had taken place or such serious injuries.

 The Judge held that the fact that members of the ski group did not cope particularly well with aspects of the tuition did not necessarily preclude the instructor from suggesting something more demanding thereafter. However the off-piste terrain where the accident occurred was steeper than any off-piste terrain that the group had skied all that week. The snow conditions required more skill to negotiate than the on-piste conditions and there were trees on the slope particularly in the area towards which the group were asked to ski. There was evidence to show that Anderson had not mastered to a sufficient level the skills necessary to undertake a section of off-piste terrain of that nature in reasonable safety. The instructor had assumed that everyone in the group was equal to trying the slope and wanted to do so. His failure to address the question of whether several members of the group were capable of skiing the slope was further evidence that he had not on that occasion considered conscientiously the capabilities of all of the members of the group. The slope was too much to ask of Anderson and his wife and at least one other member of the group and the ski  instructor ought to have seen it as a step too far.

 The Judge concluded that it was reasonably foreseeable that any one of three of the members of that group would have fallen or lost control and the Judge further held that owing to the trees there was a reasonably foreseeable risk of running into a tree as a result. It was unnecessary to provide evidence to show that serious injuries could result from a skiing accident.

 The Judge also found however that Graham Anderson was contributorily negligent in that if an instructor suggested something to a skier under his supervision that the skier believed to be beyond his capabilities there was an onus on the skier to say so. The claim was therefore reduced by one third to take this into account.

 So if you are one of the 900,000 skiers heading for the slopes this winter, whether you enjoy cheating death on the blackest of black runs or  prefer the “corduroy” blue runs en route to the next chocolate chaud with whipped cream and marsh mallows on top; get insured, ski within your own capabilities and keep and eye out for those kamikaze skiers!

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Janet Watson’s blog; panto season!

January 7th, 2013

 It’s pantomime time again (oh no its not, oh yes it is). As well as my  involvement with the u3A Sociable Cyclists I am also a member of St Marks Players  amateur dramatics group. We rent the local Longwood Mechanics Hall and put on shows for the community including a pantomime every winter. We rehearse songs, dances and scripts diligently for about 3 months and then go on stage and forget everything we have ever learnt. Even so the audience seem to enjoy themselves.

We have several members of our group who are concerned with health and safety issues -  myself included and we always do a risk assessment of the building to make sure that any accident waiting to happen is dealt with before it does. Whilst an employer of a company or a small firm willingly addresses the issues of health and safety because they have to; this practise is sometimes overlooked for clubs, groups and leisure activities. It is often  assumed that because you are there for fun, health and safety goes out of window.

 I have acted for the bottom half of an 8 foot tall “woman” who fell off the stage of a theatre during a dress rehearsal because no one had thought to paint a broad strip on the edge of the stage or to adjust the lighting properly. This led to the “woman” stepping off the stage into the orchestra pit and injuring the two people inside the costume whilst at the same time wiping out the brass section…..LOL as they say but not when people are injured and are unable to work. The man I represented sustained leg, back and shoulder injuries which prevented him from working for several months as a builder and it took him even longer than that to get over his fear of heights.

 We had a similar situation at our pantomime many years ago when King Rat suddenly disappeared off stage left and fell behind the piano because his costume  – although magnificent –  had restricted visibility. Fortunately he bounced and was not injured!

 Accidents sometimes just happen so it is important to do a risk assessment to minimise the risk and also make sure yourinsurance policy is up to date.  I have found that stages and theatres can be dangerous places to be with performers and audience being injured by among other things falling scenery, slippery floors and collapsing stages. 

David Rendall  –  one of the most successful British tenors of recent decades, performing at Covent Garden, the Met and other major houses wrote in April 2012 of his accident in Denmark in 2005. He is still fighting for the right to claim compensation from the theatre for an accident which he alleges was  caused by human error and lack of training. As a result of the accident he has sustained severe hip, shoulder and hand injuries which have prevented him from appearing on the stage again.  He believes that the accident  occurred because the company had recently changed theatres and whereas the scenes were changed manually in the old theatre by means of ropes and pulleys, at the new theatre they pushed buttons on computers to move whole stages from side to side, back to front and from basement to the top.

 The stage hand in charge of the scene changes pushed the wrong button on a computer and instead of two stages going up, the stage which David Rendall had just left started to go across to the wings. Because there was a rather large piece of mock rock between the two sets, the top sets movement crushed it and tore the roof off the set he was in. With all the debris falling on him he was knocked off the pyramid where he was standing and down the stairs to the floor below; some 15 to 20 feet. It was pitch black and he was screaming but nobody came to his aid. He eventually crawled to the rear of the set and tried to get away from danger. Only then did a stage hand appear. An announcement had been made to the public that the performance had to be stopped due to technical reasons but nobody was hurt. He remains disabled is unable to work.

 The show must and does go on, as Lady Gaga proved in June 2012 when she was struck in the head by a pole and kept on rocking during a performance in Auckland, New Zealand. Gaga briefly left the stage before returning to perform another 16 songs telling the audience “I want to apologise, I did hit my head and I think I may have concussion, but don’t you worry I will finish this show”.  Videos of the incident show male dancer accidently hitting Gaga in the head with a metal set piece while taking it off the stage. Gaga who was performing “Judas” (ironically) briefly staggered and rubbed her head before walking off the stage. She was back a short time later.

Bret Michaels took a big blow to the head while performing at the 2009 Tony Awards. As the Poison frontman walked off stage, he was hit by a piece of scenery that knocked him to the ground. Photos of his fractured nose and busted lip went viral online, and Michaels later sued the Tonys claiming that the accident forced him to cancel scheduled Poison concerts and contributed to a life-threatening brain haemorrhage he suffered 10 months later. In May 2012, Michaels settled with the Tonys and all the parties named in the lawsuit for an undisclosed sum of money. 

It is sensible to consider the element of risk of any fund raising activities that you may want to put on as a group and to check that the company hired to provide those activities is insured.

 In the case of Gwilliam v West Hertfordshire Hospital NHS Trust and others 2002 there was an appeal by the claimant from a decision dismissing a personal injury claim against the defendant. The circumstances were that in 1997 the claimant, then aged 63 was injured when using an apparatus at a fund raising summer fair organised by the Mount Vernon Hospital in Middlesex which was part of the Defendant Trust. The apparatus was a splat wall which aimed to allow the participant to bounce from a trampoline and stick to a wall by means of Velcro material (an accident waiting to happen in my view, particularly when some of the participants were Saga louts!)

 The equipment had been hired from a company called Club Entertainments and the claimant had been injured because the apparatus had been negligently set up and left unattended. The claimant’s claim against Club Entertainments was settled in the sum of £5000  – that sum having been accepted by the claimant because Club Entertainments public liability insurance had expired four days before the incident and thus they had no cover for the injury.

  Mrs Gwilliam then brought an action against the hospital based on their failure to ensure that the entertainment arranged was covered by public liability insurance. She claimed the difference between the £5000 and the total value of the claim ie what she would have recovered had they been insured. At the hearing the claimant primarily alleged that the Defendant Trust as the fair organiser had a duty to ensure that the persons providing entertainment were covered in respect of public liability insurance. The Defendant Trust averred that enquiries had been made when the booking was confirmed and Club Entertainments had stated that adequate insurance was in place.

 The Judge had held that the Hospital owed a duty of care under the Occupiers Liability Act 1957 and that this duty did extend to checking whether the independent contractor had insurance cover since this would be relevant as to whether they were competent providers of the equipment.  However there was no breach of duty since the Hospital had enquired and had been told by Club Entertainment that they had insurance cover and it would be unreasonable to expect the Hospital to check the terms of the insurance policy. Accordingly ( and surprisingly in my view,)  there was no duty upon the organisers of the fair to ensure that insurance was in force for the benefit of the users of the equipment.

 There are  some who would argue that today’s so called compensation culture prevents clubs and charities arranging any fun days without incurring massive restrictions and costs which prohibit the staging of the event itself. This is very often not the case at all and there are many situations where it appears that health and safety rules and regulations have gone mad when this simply is not the case.

 The Health and Safety Executive are often blamed for spoiling people’s fun by banning many activities people enjoy but the HSE is now hitting back by saying in most cases the organisation has little to do with these decisions. Among the seasonal myths being challenged is the idea that performers cannot throw sweets into the audience at pantomimes, because the sweets may strike and injure someone. The watchdog says this kind of story raises its head annually and is typical of the misunderstandings that encourage the public to view the HSE as a bunch of killjoys and also promotes the idea that there is a compensation culture fuelled by the lawyers.

 The chance of someone being seriously hurt from being hit by a sweet thrown by a panto actor is of course very low providing common sense is applied and the actors are sensible and are not chucking gigantic gob stoppers around the auditorium!

 Today’s myths have started because organisations use health and safety as a convenient excuse not to take any risks as they are fearful about litigation by anyone hurt on their premises. Real health and safety is about avoiding death, serious injury and ill health –  not wasting time on trivial risks or covering your back by stopping activities which bring great enjoyment to the local community.

It is however, advisable to do a risk assessment when you plan to put on a production, or an event, because a risk assessment can prevent an injury  – which after all is the main thing.

 Compensation (in this country, given the low value of most awards) will never make up for the pain and suffering and in a lot of cases continuing disability caused by an accident.  Break a leg!

Panto season

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Huddersfield Solicitors hit the £1 million jackpot for Grannies and carers!

December 11th, 2012

Ridley & Hall Solicitors HuddersfieldIn a stunning 6 week period, over £165000 has been awarded to grandparent carers, and two kinship carers. The money is back payments of fostering allowances to help to them care for children placed with them by local authorities. It takes Ridley and Hall fight for money for carers to well over £1million.

Background

Susan Cawtherley, solicitor at specialist Huddersfield law firm Ridley and Hall said “The grandparents and the kinship carers’ have finally been awarded the financial support that they were due from 4 local authorities.

The background to these cases is the parents were unable to care for the children. The local authorities made arrangements for the children to move in with their grandparents or relatives. Social services are leaving children with grandparents or siblings and this is happening all over the country.

We are very pleased that these local authorities have agreed to pay the financial support our client’s richly deserve”.

If our clients’ had not taken these children into their care, they would have been placed with stranger foster carers. The cost to the local authority for foster carers could have been much higher. Local authorities have now to pay grandparent and kinship carers the same as unrelated foster carers.

In addition all the research shows that it is better that children are looked after by a family members. They fare much better than those in the care of Stranger foster parents.

Local authorities need to acknowledge the vital role grandparent and siblings play in the lives of theses children. Financial support should be provided at the very start to ensure the stability of these families.

In all these cases the carers have had to come to us to get legal advice because they’ve been banging their heads against a brick wall trying to get the local authorities to pay what they are meant to.

Our client’s have struggled financially to pay for the up keep of the children. Experts at the Fostering Network research shows it costs more to look after child who has had a chaotic lifestyle and has had to be fostered.

Grandparents Legal Centre

Nigel Priestley, Senior Partner commented,

Ridley and Hall is the leading firm in the country fighting for the rights of Grandparent and Kinship carers.  We represent carers from across the country – in these cases they were from the Midlands, the North West and from Yorkshire. Carers come to Huddersfield from all over because they know we understand their problems and will fight for them.

Since we began challenging local authorities to comply with their legal duties in 2004 our clients have been paid back pay of well over £1 million – these recent payments have come at just the right time for hard pressed families. On top of these back payments carers have begun to receive weekly fostering allowances.

These carers cannot be identified for legal reasons. They are pleased they have got this far. These families need this support and it should have been in place from the start. The carers should not have been put in a position where they were forced to take legal action.

Ridley and Hall set up the Grandparents Legal Centre because grandparents are entitled to the best advice available.

“We have a brilliant team – the picture shows how much the clients appreciated the work Susan Cawtherley and her assistant Kelly Thornton-Lawrence. They sent them a bottle of Bollinger Champagne!”

For further information please visit www.ridleyhall.co.uk or www.grandparentslegalcentre.co.uk or call 01484 538421

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Janet Watson’s cycling blog: animals.

December 10th, 2012

When cycling with the U3A cycling group Sociable Cyclists, it is a particular pleasure of mine to go as fast as I can down hills. On a good piece of road with no bumps or lumps I can reach 30 mph with no problem and once that was achieved have been pushing the boundaries ever since. As an Autumn years cyclist this takes me back to my childhood; carefree and hurtling through the country lanes on my little rusty Raleigh bike. My cycling friends often urge me to take care down particularly steep descents but I am usually up there in front with the men racing downwards. It tends to make up for the struggles I have going up hill when I am usually overtaken by men and women a good 10 years older than me.

However my pleasure has been curtailed by the realisation that even if the road is clear of traffic you could receive a broadside from an animal suddenly appearing over a wall. I have heard of tales of cyclists being jumped on by sheep when cycling through moorland and recently a particularly sad case of a cat which got caught up in the wheel, pitched the cyclist over the handlebars. He is now still in hospital after suffering a serious head and multiple injuries. Whilst the sheep incident was a cause of mirth as the rider was not seriously hurt, the incident with the cat certainly wasn’t.

 Many claims arise each year involving animals. In terms of a personal injury claim, there is not much you can do against the owner of a cat. Cats are independent creatures and the law recognises that. A dog may be a different matter but only if it can be shown that the dog should have been restrained and/or had a propensity to chase after cyclists or motorcyclists and the owner should have known or did know that. In the case of Tierney v Barbour 2001 the claimant was seriously injured when his motorcycle was in collision with Jess, the defendant’s dog on the B1040 in Cambridgeshire. The defendant lived close to the site of the accident and as a result of a previous escape by Jess he had added wire netting to the gate and fencing which enclosed the dog’s run. Jess was kept chained when no one was with her. On the day of the accident however Jess had managed to escape and crossed the B1040. It was when the dog was on its way back that she collided with Tierney’s motorcycle and was killed. Immediately before the accident witnesses had seen Tierney accelerating away from roadworks at high speed and doing a wheelie in the process. As recognised by the defendant herself, the system of keeping the dog under control was insufficient to contain a dog determined to escape. Where a dog was on the loose it could be expected to act unpredictably. Tierney had acted in a reckless manner a very short time before the accident took place but the expert evidence concluded that both wheels had been in contact with the ground at the time of impact. Tierney was speeding at the time of the accident but expert evidence concluded that he would have been unable to anticipate the impact with Jess or to take avoiding action even if he had been travelling within the 20 mph speed. The court held that the defendant Barbour was negligent in permitting Jess to be on the road so as to cause the accident and in view of the expert evidence regarding the motorcyclist there would be no deduction of damages for contributory negligence.

What about the position where an animal, not necessarily a dog, dashes into the road causing a motorist or cyclist to either hit the animal or swerve to avoid it? Here the law is rather grey; there are no clear rules and every case must be considered on its own merits. However there is some case law which provides guidance as to how the courts view these situations. In the case of Parkinson v Liverpool Corporation 1950 a bus driver came to a sudden halt to avoid a dog in the road. The emergency stop caused the bus conductor and a passenger (who was standing) to be thrown from their feet. In this case the court held that the driver had acted reasonably in coming to a swift half and that his actions had not amounted to negligence. So the claimants would have lost unless they could sue the dog owner for failure to restrain the dog, as in Tierney v Barbour above.

In the case of Richie’s Car Hire limited v Bailey 1958 the defendant Mr Bailey hired a car from Richie’s Car Hire on the contractual agreement that he should not be liable for any damage to the vehicle that was not his fault. Mr Bailey was driving down a wide road at night and suddenly a cat crossed his path. He swerved to avoid it, drove into a tree and severely damaged the car. Richie’s car hire claimed against him (I am wondering why he was not insured but this is a 1958 case!). The court found for the defendant saying that it was reasonable to swerve to avoid the cat and not his fault therefore that he had driven into a tree.

In addition to the common law of negligence we also have the Animals Act 1971 which can impose strict liability on the defendant but only in certain circumstances. Unfortunately the Animals Act is one of the most difficult pieces of legislation to get your head round. Under section 8 there is a duty to take care to prevent damage from animals straying on to the highway but where damage is caused by animals straying from unfenced land to a highway a person who placed them on the land is not liable if the land is common land, or the land is situated in an area where fencing is not customary. In the case of Mirvahedy v Henley and Henley 2003 one dark night the defendant’s 3 horses escaped from their field breaking though an electric fence barbed wire fence and undergrowth and made their way onto the A380 via a track and a minor road. The claimant was driving along the A380 in the dark when he suddenly saw a horse in the road and immediately applied his brakes but the car was then hit by a second horse, killing the horse and causing damage to the car and serious personal injuries to the claimant. The trial judge concluded that the horses had escaped because of some unknown event that had caused them to panic and to trample the fences posts and vegetation that were adequate for containing normally docile horses. Under section 2 (2) of the Animals Act 1971 the defendant/keeper of the horses is strictly liable (ie negligence does not have to be proved) where damage is caused by an animal which does not belong to a dangerous species (eg not a lion!) if:

a) the damage is of a kind which the animal unless restrained was likely to cause or which if caused by the animal was likely to be severe and

b) the likelihood of the damage, or of its being severe, was due to characteristic of the animal which are not normally found in animals of the same species or are not normally found except at particular times or in particular circumstances and those characteristics were known to the keeper.

The trial judge considered that there was no negligence by the keeper and that there was no liability under section 2 (2) as the damage had been caused by the presence of the horses on the road rather than by the abnormal or unusual characteristics they had displayed. The claimant appealed. The Court of Appeal held that the accident had been caused by the particular characteristics of the horses once they had been terrified into escaping and it was precisely because they were behaving in an unusual way due to panic that the damage had been caused. Section 2(2) (b) of the 1971 Act covers temporary characteristics which were nonetheless normal to the breed in those circumstances or at that time. Parliament had intended that such cases should be covered by the Act. The animal’s keeper under section 2 (2) (c) of the Act had to have knowledge of the animals characteristics and not of the particular circumstances. It was sufficient that the defendants knew that horses could behave in the way they did if frightened or panicked. The defendants appealed to the House of Lords but the lords confirmed the decision of the Court of Appeal. Seems harsh but that’s what strict liability is all about!

If there is no strict liability and the case does not fit the specific criteria then the claimant has to prove negligence.

So take care when cycling down hills  – you never know what might be around the next corner…….

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Janet Watson cycling blog; helmets.

November 20th, 2012

During a recent ride with my sociable cycling friends - whilst sitting in the greasy spoon café with my jaws wrapped round a sausage sandwich, finding refuge from the cold and the wet –  we started a heated debate about whether or not to wear a cycling helmet.

We all wear them now; the last two stalwarts having bowed to the majority, one because he had to wear a helmet during a cycling holiday in Majorca as it is mandatory in Spain and the other because he had seen a horrific programme on television which had, after 50 years of cycling without a helmet, changed his view.

The accidents that have befallen Bradley Wiggins, Shane Sutton and Mark Cavendish have brought cycling safety into the spotlight. Shane Sutton recently confirmed that he was wearing a helmet when he was knocked from his bike cycling along the A6 near Manchester. He remembers nothing of the accident after sustaining a head injury and bleed on the brain. He considers that the helmet saved his life. The jury is still out regarding the advantages of wearing a helmet but the civil courts in personal injury claims are tending to favour the wearing of a helmet.

The case of Reynolds v Strutt Parker LLP 2011 involved an employee of the defendant company being injured whilst taking part in a cycle race as part of an event organised by his employers at a country park. The race involved 12 cyclists  – only one participant wore a helmet (not Reynolds). During the course of the race Reynolds collided with another employee’s bike sustaining serious brain injuries. The Judge deducted two thirds of  Reynold’s compensation for contributory negligence, as he was not wearing a helmet and it could be shown medically that he would not have suffered the injury he did if he had have been wearing one. The Judge said “clearly if those who fail to use helmets on quiet country roads are contributorily negligent, those who engage in competitive racing even for fun… should be held partly to blame for the failure to protect themselves”.  

Research has found that cycle helmets are 85% effective in preventing injury.

There are complex medical arguments on whether one type of impact would be more or less traumatic if  someone is wearing a helmet. This can often relate to the type of helmet worn  – obviously it is advisable to buy the best helmet you can afford, particularly if you cycle in heavy traffic.

The consumer magazine Which?  tested cycle helmets in their July 2012 issue and at the same time launched a blog post debating whether or not EU law mandating helmets for the under 13s should be enacted here in the UK. Which? considered that whilst not mandatory,  bike helmets are worth wearing when in the saddle, if you buy a good one.  However their testing found a few helmets that seriously underperformed.

The chairman of a leading brain injury charity has called for all cyclists to wear helmets. Andrew Harding, chairman of Headway wrote a piece on Wales Online regarding the helmet debate. He wrote “As a lawyer specialising in head and brain injuries I represent many clients who have suffered serious brain injuries some of whom have been injured whilst cycling …arguments are fought over whether wearing a cycle helmet should be a matter of personal choice  – an opinion regularly voiced by London Mayor Boris Johnson, yet what is usually disregarded is the impact that a brain injury could have on the victim’s family and friends as well as the cost for NHS treatment.”

The Dutch philosophy is different; they consider that cyclists are not dangerous but cars and car drivers are. Drivers should take responsibility for avoiding collisions with cyclists. Car drivers are almost always liable when a collision with a bike occurs. Nobody wears a helmet yet the death rate is extremely low. Holland also has a superior infrastructure giving cycling a priority.

Roger Geffen of the National Cyclists organisation said “ the idea that it is somehow dangerous and irresponsible to cycle without a helmet is a total myth. It merely puts people off cycling. If we encourage people to take up cycling then we need to promote it as a safe and enjoyable way to get around wearing normal clothes”.

A study by Dr Ian Walker at Bath University found that traffic passing cycles got closer to cyclists wearing helmets then to those without. The idea is apparently that drivers believe that cyclists wearing a helmet are more experienced and less likely to do something unexpected.

Some consider that although for mountain biking and road and track competitions a helmet is essential,  for everyday cyclists a helmet should be a personal choice. Apparently if you look at accident statistics there are more UK fatalities from drowning and falling down stairs.  The counter argument would be that you are more likely to be travelling at speed when cycling and consequently the risk of having an accident is greater. 

This debate needs to take place; we all need to consider what level of risk in society we should tolerate for different activities. In my cycle group, we were all agreed that the wearing of helmets, though advisable, should not become compulsory, except for children. And we all agreed that if you chose to wear a helmet, it was important to wear a good one.

Janet Watson’s cycling blog; Bradley Wiggins accident

November 13th, 2012

Last week Bradley Wiggins and his coach Shane Sutton were both involved in two separate road accidents  –  once again bringing  into the spot light the issue of safe cycling.

Could there be a better example to urge the government to face the issue of our crowded roads and the rule that car is the king? Campaigners are calling for greater awareness especially since tens of thousands of more amateur cyclists have taken to the streets in the wake of the Olympics.

People are worried that these two high profile accidents are going to undo all the good which has been done over the Summer in encouraging cycling. Chris Peck, policy co-ordinator for the CTC (the national cyclists’ organisation) said “We know there is an overinflated fear of cycling, yet studies show that the health benefits outweigh the risks by 20 to 1”.

British Cycling (the national governing body for cycling) stress that cycling is not an intrinsically dangerous activity –  but there is much to be done to improve conditions for cyclists on the road.

Cyclists are very vulnerable, as only too clearly illustrated in the Bradley Wiggins and Shane Sutton’s incidents where two experienced cyclists were knocked from their bikes by motorists in entirely separate incidents within 24 hours of each other. The fact that neither motorist was injured was unsurprising; motorists have an armour plate around them  – cyclists have lycra.

The AA president, Timm Collinson, said the accidents should act as a reminder to all drivers that we need to be more vigilant particularly when pulling out of entrances and turning at junctions.

As a personal injury lawyer I have dealt with several accidents involving cars leaving petrol forecourts. On one occasion a pedestrian was involved and in another, a cyclist. Drivers are often not paying attention,as their journey has been delayed by having to fill up with petrol and they are anxious to get going again.

ROSPA report that most cycle accidents are caused by drivers failing to look properly, as in the case of Bradley Wiggins where one minute he was riding along (minus his lucky sideburns) and the next he is flat on his back in the road having been taken out by a ubiquitous white van emerging from a petrol forecourt. The CTC  have, for years, been running a SMIDSY campaign (sorry mate I did not see you ) to increase awareness for cyclists.

 Drivers on phones or tinkering with the radio or cd player and not paying attention to road users are another problem. I have acted for a cyclist who on approaching a roundabout was rammed up the rear by such a driver with such force that he did a somersault on his bike and landed on the bonnet before crashing down onto the road and skidding along on his face.

Motorists complain that cyclists get in the way and hold up the traffic but in countries where cycling is the norm, provisions are made in the infrastructure and safer cities created  – not to mention healthier citizens. The easiest and cheapest way to make roads safer is for both cyclist and motorists to have mutual respect for each others safety and to drive and cycle responsibly.

 

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Cycling vs Sailing; Janet Watson takes to the sea..

November 12th, 2012

My cycling blog has now morphed into my sailing blog given that during August I forsook cycling for a sailing holiday on a flotilla in Turkey.

Some of my friends went on a holiday combining sailing with cycling which would be my ideal but given that my husband does not enjoy cycling (he is not prepared to go through the posterior pain barrier) and he does enjoy sailing, we go on sailing holidays. This year with our two sons, girlfriends and our friends.

Eight adults, two weeks on a boat with limited head room, excessive heat, lack of sleep due to slapping halyards and squeaking fenders together with copious alcohol and it’s a miracle we are still speaking to each other at the end of the holiday!

We started the holiday by picking up the boat in Orhanye and sailed a planned route meeting the rest of the flotilla at the end of the day at pre-organised bays, skirting the coast to Marmaris and onto Fetiyhe.

Some of the bays were totally inaccessible to traffic and could only be reached by boat. A chance to relax in the sun, feel the waves beneath the boat, take in the scenery, swim in the warm sea, and eat good fresh food prepared by the locals in tiny and often make shift kitchens.

As I was sitting one day in the sun on deck listening to the sea lapping around the boat and watching the tiny fish flicking around in shoals. I notice the well worn planks of the jetty we were moored up against and (being a personal injury lawyer) I am soon thinking that there the chance of having an accident on a  flotilla holiday must be pretty high, with all those stray ropes hanging around, a rocking boat unsecured catches, and tripping hazards.

Indeed, on a previous flotilla holiday, a person managed to slice off the top of his big toe on the anchor hatch as he failed to secure it properly. The boat had swayed as he was standing on deck oblivious, and no doubt taking in the beautiful scenery, with his remote control bringing up the anchor when suddenly the hatch smashed straight down on his toe poking over the edge of the hatch. I expect that did not exactly enhance his holiday experience!

This year, when we were moored up at a very quaint bay known as Capicreek we were advised not to walk on the boards which formed a walkway linking the stone jetty to the rocks as a young lady had walked that way the week before and had gone straight through a rotten plank into the water below! I hope she was not badly injured but what if she had been and was unable to return to work when she returned home. Would she have been able to make a claim? And if so against whom would she have claimed? If she had been on a package tour she may have been able to claim against the tour operators for failing to ensure that all areas used by the flotilla were safe.

However when you travel abroad you have to take even more care as the local standards probably do not conform to British standards. You will only win your case if you can show that the local standards do comply and that the defendant’s land/hotel etc did not. In the case of Prynn v Romano Travel 2006 where the claimant fell down a steep set of stairs leading to a villa, there were no applicable local regulations or standards shown to be in force and the Judge concluded that the stairs were typical of many in villas. The claimant’s claim failed as local evidence was against the case.

In Fellows v TUI UK Ltd 2007 the claimant caught their foot in a storm drain after stepping off a high kerb in the Dominican Republic. There was no supporting evidence from the claimant as all of the photographs supplied showed kerbs and drains of this nature were the norm locally and consequentially the claim failed.

So back to the girl on the board walk; would she have been successful against the holiday company running the flotilla? Probably not, but if the warning had not been given whilst we were there and someone else had gone through that probably would have been a different matter.

In the case of Martens v Thomson Holidays Ltd 2001 where the claimant was on holiday in Goa where he was staying at a beach campsite it was found that the travel company were liable. On the day in question the had been sitting around a campfire on the beach drinking Bacardi. He was drunk when he decided to go and get some more firewood. Unwittingly he left the site and entered a neighbour’s land where he fell down an unguarded well sustaining serious injury. He brought a claim alleging that the defendant had failed to keep him reasonably safe and was in breach of contract. The Judge at the hearing of the case found that the well although not on the campsite was sufficiently close to a track used by guests that the defendant should guard against what an inattentive (or drunk) guest may do. No warning was given nor was there anything to suggest to a guest that he was leaving the campsite and entering another’s land. The Judge found for the claimant although the award was reduced by 60% to reflect the claimant’s own contributory negligence in drinking so much and failing to take care for his own safety.

Boats and alcohol do not really mix as when you are sober the gang plank may be easily negotiated on the way out but return several hours later in the dark and after a few glasses of wine and several cocktails and it is very easy to lose your footing on the rickety boards, especially when wearing kitten heels!

We saw one accident where a mechanic stepped on a gangplank which then broke and he and his mobile phone ended up in the water between the back of the boat and the quay. He was not very pleased with the owner of the boat who he felt had not checked that his gang plank fit for purpose (although he did not use those words exactly!)

That’s not to mention the chance of falling overboard as you are sailing along, or grounding the boat on rocks by failing to heed the instruments on board.

All in all plenty of scope for accidents, but claiming damages for personal injuries sustained would not in my view be an easy matter at all, it would be very fact sensitive and so it would be necessary to gather as much witness evidence and photographic evidence as possible before leaving the resort. It’s a long way to go to check on the details (of course if someone was prepared to pay for my air fare and accommodation………….)

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Huddersfield solicitor campaigns for new missing person law

October 24th, 2012

Ridley & Hall Solicitors Huddersfield Every year approximately 250 thousand people are reported missing to police forces and other agencies across the United Kingdom.  When someone disappears it can be a devastating experience for family and friends.  The impacts often include legal and financial issues.  The charity Missing People is calling for improvements to be made to the support available to families of missing people.

Huddersfield Solicitor Sarah Young has been invited by the charity to a round table discussion at the House of Commons on Tuesday 23rd October.  The discussion hosted by the APPG for runaway and missing children and adults will explore the impact of new legislation that has been proposed.  The second reading of John Glenn MP’s Presumption of Death Bill will take place on Friday 2nd November.  It presents the government with an opportunity to create a timetable to progress the commitment to reform made in its response to the Justice Committee Report on this topic.

Although a missing person may be presumed dead, in the absence of a body it is very difficult to obtain a death certificate.  Without a death certificate families have to struggle to prove that their relative has died and are often faced with pursuing separate expensive legal processes in order to resolve different affairs such as a mortgage on a property, claiming life insurance and dissolving a marriage.  In England and Wales there is no single procedure (as there is in Scotland and Northern Ireland) for the registration of death when there is a declared presumption that a missing person is dead.

Missing People is calling on the government to introduce a single process under which a family member or other relevant party can apply to the court for a declaration of presumed death which will be valid for all purposes.

Huddersfield solicitor Sarah Young campaigning for new missing persons law

Sarah Young, a partner in Ridley & Hall commented:  “I specialise in inheritance and will disputes and have recently become involved in a number of cases involving local people who have gone missing.  The law currently is a real mishmash of legislation and urgently needs reform.  The families that I have been working with have been caused enormous stress and expense by the legal process.  I wholeheartedly support the campaign for a new presumption of death law”.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or visit www.ridleyandhall.co.uk

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Janet Watson Cycling Blog

July 27th, 2012

Cycle ride from Stanley Ferry to Kirkstall Abbey in Leeds.

This is a fairly flat ride easy going ride 38 miles there and back. We start in Stanley Ferry at the public house with the same name where they allow us to park in the car park and use the facilities always a bonus before a long ride (saves having to nip behind hedges and risk a patch of nettles!)

This ride follows the Trans Pennine Trail which unfortunately in some places is not sign posted very clearly so a lot of time in the early stages was wasted whilst we worked out the route. So, there were a few trips up dead ends and around housing estates before we got into our stride and onto the tracks. The track largely follows the River Calder and then across country to Methley Mining Memorial at Methley Village and over to the River Aire  past Thwaites Mill which is a fully restored watermill nestling on an island location between the River Aire and the Calder Navigation (well worth a visit) and then  onto Leeds.

The day was warm and sunny for a change so we were able to leave waterproofs behind and enjoy the rare sight this year of dappled sunlit paths and fresh green fields and hedgerows dotted with wild flowers. With all the rain we have been having it was absolute bliss to be out in the sunshine and fresh air.

As we ride along we often chat and because of what I do the conversation often turns to the so called compensation culture and how it should be stopped. It is a common belief that the world is full of people making spurious claims and gaining money fraudulently and that businesses are having to jump through hoops to comply with health and safety requirements.

I try to convince my cycling friends that the world is actually a safer place with the Health and Safety rules compared with the 1970s when I first started working in the law. Then it was still common place for workers in the textile industry near where I live, to lose bits of themselves as they attempted to fettle (ie clean out) machines whilst they were still running because to shut down a machine would slow production and the mill owners were not prepared to do that.

The cyclists say” That’s all very well but what about that woman who sued McDonalds in America,  after carelessly pouring hot coffee down herself. That shows it’s all gone too far, doesn’t it?” It amazes me how there is still a complete misconception about the case of Stella Leibeck.

This case is so often misquoted, Stella Leibeck was not a clumsy woman  who jumped on the compensation band wagon but a little old lady who just wanted some justice after being seriously injured.

Stella Leibeck was a 79 year old grandmother when she visited McDonalds drive through in February 1992. She was a passenger in the car her grandson was driving. Her grandson stopped the car and ordered from the booth coffee that was served in a styrofoam cup. After receiving the order the grandson pulled the car forwards and stopped momentarily so that Mrs Leibeck could add cream and sugar. (apparently critics of civil claims have often claimed that Leibeck was driving the car or that the vehicle was moving whilst she attempted to do this, neither is true)

In order to add the cream and sugar the lid had to be removed so to keep the cup steady  Leibeck placed it between her knees and attempted to remove the plastic lid from the cup. As she did  the entire contents of the cup spilled into her lap.

Leibeck was wearing sports joggers and these absorbed the coffee and held it next to her skin. She sustained 3rd degree burns over 6% of her body including inner thighs, perineum,  genital and groin areas and buttocks. She was hospitalized for 8 days and had to undergo skin grafts and debridement treatments

She sought to settle her claim for $20,000 to cover her medical bills and other related expenses (that is her out of pocked expenses initially she wanted nothing for the pain and suffering she had gone through) but McDonalds refused. She took McDonalds to court only after the company offered a paltry $800 settlement. She was awarded punitive damages of over $2 000000 but this was reduced on Appeal and the case settled for an undisclosed amount. Leibeck agreed not to make public statements about the case, hence the misconceptions.

During discovery of documents before the trial McDonalds were forced to produce documents showing more than 700 claims had been made by people burnt by its coffee between 1982 and 1992. Some claims involved 3 degree burns similar to that of Leibeck’s.

McDonalds therefore knew of the risks before Leibeck’s accident. In addition it was found that McDonalds held its coffee between 180 and 190 degrees Fahrenheit to maintain optimum taste because they used inferior coffee and the heat masked the taste (home brewed coffee was found to be 135 degrees Fahrenheit.) McDonalds asserted that an accident of Leibeck’s type should not take place as customers purchased their coffee on the way to work or home not intending to consume it in the car. However the company’s own research showed that customers intend to consume the coffee in the majority of cases whilst driving.

As a result of that case and a subsequent case where a child was similarly severely burned McDonalds and other coffee outlets redesigned their coffee cups and lids which means that the likelihood of a similar accident happening has been reduced substantially.

The Leibeck case was in my view an attempt to seek redress for a deliberate failure to properly assess a health and safety risk and to cut corners in an attempt to maximise profits, not a clumsy woman trying to wring millions from an innocent corporation.

Having given my cycling friends food for thought (?!) we continue through the docks area of Leeds, here there has been a lot of regeneration including the Clarence Dock which was developed as a £250 million mixed use development between 2001 and 2007. Originally Clarence Dock was constructed for the transportation of goods and commodities on barges to and from Leeds city centre using the Leeds and Liverpool Canal and the Aire and Calder Navigation. It was primarily used to bring coal from the collieries around Rothwell and Wakefield to supply heavy industry in the Leeds area. Until recently the surrounding area was made up of Victorian industrial buildings and during the  1990’s most were derelict.

The cycle trail takes you past the Royal Armouries  and the canal basin where barges are moored and the area is teeming with offices and restaurants. On a sunny day it is alive with tourists and office workers taking a break. Cyclists are urged to take care in this area and give way to the pedestrian. We then joined the road but a carefully thought out cycle path takes you away from the main traffic and across several traffic lights by following the same route as a pedestrian and then down to the River Aire at Holbeck and passed the Tower Works. This former needle factory is famous for it unusual Italianate towers.  Tower Works was founded by TR Harding in the 19th Century to make steel pins for carding and combing in the textile industry. The factory products were sold all over the world. The business was founded on a bedrock of culture, philanthropy and world beating innovation. The design of the towers was heavily influenced by Harding’s love of Italian architecture and art and housed a ventilation system that was way ahead of its time in terms of minimizing pollution emissions from steel works, incorporating a filter to remove excess steel dust which benefitted workers and the general public and hopefully reduced the chance of lung disease in later years.

 The buildings have now been transformed into Holbeck Urban village and the space is let to a variety of small businesses.

From there you can join the joggers and dog walkers to follow the pleasant river side path along the River Aire to Kirstall Abbey which is one of the best preserved Cistercian abbeys in the country set in parkland along the banks of the River Aire. Opposite is The Gatehouse cafe which serves wholesome Yorkshire based dishes, sandwiches and delicious home made cakes. On sunny days you can sit outside in the pretty patio area, chatting with friends and watching the world go by before climbing back on the bike for the return journey and the remaining 19 miles.

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