bAutumn 2018

PRECEDENT set by Keoghsin dance floor case Page 4

In this issue...

VIOLENCE at work. Covering the risk Page 8 Defending a confirmed

pathogen Page 12

Halting the discontinuance gravy trainPage 6

Timing is everything

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Welcome to the second edition of our regular update for the leisure sectorAmongst other topics, this issue finds us celebrating a great result which could help shape future defences of dance floor slip claims, whilst we also explore the huge rise in trampoline park claims along with a worrying trend for pre-trial discontinuances.

The subject on everybody’s lips at the moment seems to be Artificial Intelligence and its potential applications in the claims handling arena. With that in mind, we welcome Keoghs’ Innovation Director, Dene Rowe, who provides an insight into how Keoghs is leading the way with legal AI.

It has been an exciting few months since the first edition of At Your Leisure covered our move to Keoghs, and the future is looking very bright; even with robots in tow.

David ScottPartner, Practice Lead

About the teamOur claims experience covers all areas of employers’ liability, public liability and motor issues, from food poisoning and virus outbreak claims to ceiling collapses at nightclubs, Disability Discrimination Act cases and claims involving security staff. Our client base covers many well-known operators running venues across the UK including holiday parks, hotels, gyms and spas, restaurants, bars and nightclubs.

Welcome

For further information about our services, please contact any member of our dedicated leisure team or:

David ScottPartner, Practice LeadT: 0151 921 7143E: dscott@keoghs.co.uk

Contents4 Keoghs sets precedent with dance

floor slip defence

6 Halting the discontinuance gravy train

8 Employers’ liability and violence at work

10 Jumping the gun - trampoline claims

12 Timing is everything - defending a confirmed pathogen

14 Rise of the robots

15 Where have we been...

15 Your dedicated team

About KeoghsKeoghs is a top 50 law firm based in seven locations across the UK, solely focussed on insurance.

With a thorough understanding of insurance claims processes, we offer a cost-effective, flexible and high quality service for handling the a-z of insurance; from personal injury claims including motor, casualty and complex injury to non-injury claims such as policy advice, recoveries and insurance disputes.

Boasting vast experience across a broad and eclectic mix of industry sectors, local authorities and businesses, we handle claims ranging from low value to complex on both a delegated and non-delegated basis.

Our award winning teams include acknowledged experts who have been involved in some of the most significant developments in their respective fields. This enables us to bring a rare depth of understanding and expertise to every aspect we handle.

We work in partnership with our clients, helping them to anticipate, navigate and adapt to industry change, maximising opportunities whilst minimising risks. We are forward-thinking and pioneer new solutions.

That’s the Keoghs difference.

For further information on all of our services please visit our website,

keoghs.co.uk

54

BackgroundThe claimant was attending a Butlins resort for an adult-only weekend during which a number of live music acts were performing at an on-site venue close to capacity.

She alleged that she slipped on a spilt drink on the dance floor, sustaining a fractured left foot. The claim was brought against Butlins pursuant to section 2(2) of the Occupiers’ Liability Act 1957 and/or in the tort of negligence.

TrialThe claim was defended up to trial and heard by HHJ Cooke in the Birmingham County Court.

We have acted for Butlins on numerous claims of this nature, which has resulted in the operator putting a number of systems in place to prevent such accidents occurring. Signs were displayed throughout the venue advising customers to “Bring your best moves. But please keep your drinks away from the dance floor. We wouldn’t want any trips or falls”, whilst TV screens advised people to “Please keep drinks off the dancefloor. Thank you.” This was supplemented by regular DJ announcements, a good system of inspection and cleaning, and fully briefed staff members.

However, at trial, the claimant and her witness alleged they had not seen any of the prevention systems in operation on the day of her accident. The claimant’s counsel also submitted that the systems were inadequate and that the defendant should have taken steps to prevent any customer from taking drinks onto the dance floor.

The judge pressed counsel for suggestions as to measures he felt should have been taken. In response he accepted that it was a drinking venue and was not suggesting that Butlins should have banned all drinks; nor was he advising that the entrance to the dance floor should have been controlled by a barrier where checks would be carried out.

Claimant’s counsel did, however, suggest the defendant could have stationed sufficient employees to intercept and prevent any customer who attempted to take a drink on the dance floor. This was dismissed by the judge as a wholly unrealistic suggestion.

Ward v TescoThe claimant’s counsel also made reference to Ward v Tesco, the case which effectively reverses the burden of proof and requires the defendant to prove that;

btheir system for preventing such accidents was adequate, and

bon the balance of probability it would have prevented the accident or made it less likely than not to have occurred.

Crucially the judge ruled that the circumstances of this accident were not comparable with those in Ward v Tesco. He stated that in any public venue where drinks are being served and carried by members of the public there is an inevitable risk of spillage, unlike a supermarket where, on the face of it, there is no good reason or expectation that fluid or other substances may be present on the floor.

JudgmentThe judge also found that there was no evidence in this case as to when the spillage actually occurred. He went on to suggest that the spillage could have appeared only moments before the claimant slipped and Butlins staff would not have had the opportunity to clean it before the accident happened.

The judge made three key conclusions when summing up the case.

Robinson v Bourne LeisureIn this landmark case, Keoghs’ Corporate Risks team successfully defended Butlins against a dance floor slip claim related to a spilt drink, setting a precedent for future cases.

1The common duty in issue did not require the defendant to completely prevent all customers from bringing drinks onto the dance floor, in breach of their policy.

2The system in place to reduce the risk of customers doing so along with detecting and clearing up spillages if they occurred, was operational and its measures reasonable, satisfying the common duty.

3Even if he were wrong on the first two points, the judge stated that there was no evidence to conclude that a different policy would have prevented the accident or made it more unlikely.

CommentThis is potentially an important precedent for the leisure industry, given there is no UK case law in which the defendant has been successful in defending a slipping accident on a dance floor. As this matter was heard by a circuit judge we hope it will provide guidance in future cases.

For further information, please contact:

David Scott dscott@keoghs.co.uk

Coral Hallworth challworth@keoghs.co.uk

The claimant’s claim was dismissed.

Keoghs sets precedent with dance floor slip defence

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As many will be aware, a new costs system was introduced back in 2013 for dealing with EL/PL personal injury claims. The qualified one-way costs shifting (QOCS) process meant that defendants were no longer entitled to recover costs from a claimant, even if they successfully defended a case. Rare exceptions to this rule were implemented, for example if;

bThe case is thrown out for an abuse of process or for want of a reasonable course of action

bThe claimant fails to beat the defendant’s Part 36 offer (although the defendant can only recover costs that don’t exceed the level of the claimant’s damages)

bThe claim is ‘fundamentally dishonest’ on the balance of probabilities

Taking advantageSince the implementation of QOCS, we have noticed an ever increasing trend for claimants to run cases up to trial before discontinuing at the very last minute. The last couple of years has seen this behaviour become particularly prevalent, for example, out of the thirty six cases one of our clients had listed for trial this year, seven discontinued just before the trial date. Out of those seven cases, two discontinued on the morning of trial with a further two discontinued shortly after paying the listings fee.

This would strongly suggest that claimants are willing to sit tight and wait for defendants to settle prior to trial, pressured into action by the costs involved in attending court.

Effectively claimants are using QOCS to chance their arm, with no intention of actually attending trial.

On the offensiveIn order to combat this tactic, a couple of important strategies should be considered.

Firstly, defendants should not be afraid to allege fundamental dishonesty in open correspondence if there is a basis for such an allegation. In fact, given QOCS doesn’t apply to a fundamentally dishonest claim, this argument should be made at the earliest opportunity. This allegation, and the inherent threat of having to pay a defendant’s costs, may well be enough to force the claimant’s hand into filing a notice of discontinuance at an earlier stage.

It is also important that a defendant analyses the likely success of succeeding at trial, not just using economics as a reason to settle a matter in the early stages. If a defendant believes the prospect of success is good, then the matter should be defended up until trial and not just settled because it will be cheaper to do so.

By recognising the signs that a claimant is looking to play poker, and armed with a good hand in response, we can begin to reverse this damaging trend and reclaim the initiative that QOCS has slowly eroded.

Coral Hallworth challworth@keoghs.co.uk

A cat amongst the pigeons

Halting the discontinuance gravy train

There is an ever increasing number of employees on the front line of customer interface who are not expected to deal with violent or aggressive situations, but are unfortunately finding themselves involved in such scenarios.

The majority of these cases revolve around criminal assaults from members of the public on staff in stores, typically made in an attempt to obtain money or goods.

The following case covers an employee’s training to undertake dynamic on the spot risk assessments, and the need to take reasonable care of their own safety by avoiding placing themselves in dangerous situations. This example can lend itself to a range of workplaces, from shops and bars to car parks and clubs.

The ClaimThe claimant in question sued his employer for damages after he was assaulted by a member of the public when

confronting a gang of youths congregating on the employer’s place of business.

An intercom personal protection device was available to the claimant and he had also been trained on how to carry out a dynamic risk assessment and avoid confrontation. He was accompanied by another member of staff, however they took the decision to split up, and it was following this that the assault occurred.

The claimant suggested CCTV would have prevented this incident and that there was generally an unsafe system of work, as members of staff (including the claimant) were being asked to undertake tasks beyond their training i.e. they were required to confront potentially aggressive members of the public.

The DefenceThe defendant’s position was that the claimant had been trained to assess risks and was not required to confront members of the public or act as a quasi-security guard. His role was to investigate, assess and, if appropriate, deal with situations in the remit of a customer service operative. At all times, if dangerous situations arose, staff were not required to confront any person.

The JudgmentThe judge held that the claimant could have assessed the situation as he ascended the ramp onto the floor where the youths had congregated, however he instead chose to proceed. The claimant had been provided with sufficient training and equipment, and the provision of CCTV

would not have been reasonable in the circumstances.

The claimant was found to have failed to assess a situation which common sense would inform him was confrontational, and took a relatively antagonistic approach. Such an approach was not in line with the appropriate training he had received or his job role, which did not include becoming a quasi-security guard.

The judge did not find an unsafe system of work. He considered that there was an appropriate and reasonable health and safety training plan in place, a safe system of work and an approach to the public which was well spelt out and reasonable.

Emma Mitchell emitchell@keoghs.co.uk

and violence at work

Lesson Whilst dynamic risk assessments and relevant training should be applied wherever possible for employees in public-facing roles, it is important to remember that the independent failure of a claimant to comply with training cannot result in negligence on the defendant’s behalf.

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The number of trampoline parks in the UK has increased by an incredible 3,000% since 2014. As reported by the BBC, this surge in growth has seen a correlating increase in related accidents and injuries, with 1,181 ambulance call outs to parks across England in 2017 alone. Added to this powder keg, regulations for trampoline centres have not developed and kept pace with the growth of the industry.

Recognising the need for regulations in this area, the British Standards Institution has developed voluntary standards (BSI PAS 5000) with sponsorship from the International Association of Trampoline Parks. As of August 2017, UK parks have been required to demonstrate compliance with these regulations in order to join the UKIATP. The Royal Society for the Prevention of Accidents has also stated they would like to see all existing commercial trampoline centres declare compliance with these regulations.

Obviously this explosion of sites and injuries has resulted in the insurance industry dealing with far more trampoline park claims than in 2014 when there were only three parks in the entire country.

As is always the case, the best way to avoid potential claims is through the prevention of accidents and injuries. PAS 5000:2017 “Specification for the construction and operation of a fixed indoor trampoline park” has generally proven to be effective guidance for this.

Sheffield Children’s Hospital’s records of trampoline injuries over a six-month period revealed that the most common cause was bad landings, accounting for 63%. It’s therefore important for insurers and operators to do everything possible to prevent such incidents occurring, in the process aiding a defence should a claim be lodged.

Even if operators follow BSI PAS 5000 to the letter, whilst installing all the extra safety measures imaginable, no system is foolproof and accidents will undoubtedly occur, with potential claims to follow.

For further information and advice, contact:

Beth McNally bmcnally@keoghs.co.uk

10

With a huge increase in trampoline park accidents, we take a look at preventable measures to help defend claims.

Jumping The Gun Here are just some of the basic elements to review when considering the safety of customers and compliance with regulations.

Risk AssessmentA dynamic risk assessment is an essential piece of documentation for the operator of any trampoline park, with BSI PAS 5000 specifying a need for site-specific assessments which are accessible to all employees. To ensure defensibility of any claim, all assessments must be documented and safely archived for future reference.

SupervisionChildren should be accompanied by a supervising adult who should be aware of their responsibility to supervise. BSI PAS 5000 states that, although CCTV can be useful for reviewing incidents, it should not be considered a substitute for staff, who should be on hand to supervise and intervene with customers if necessary. When accidents occur, it’s important that staff members can be relied upon to provide statements that accurately reflect what has occurred. Relevant training material and records should also be maintained.

RulesOperators must consider how correct and safe use of equipment can be guaranteed. This will need to include guidance offered to customers along with prohibited activities which would result in intervention from staff. Bear in mind how these rules will be conveyed to customers with visual cues or reminders within the activity area.

BriefingsCustomers should be adequately briefed prior to use of the facilities with the following factors in mind:

Customer age and comprehensionWill a 10 year old have the attention span to understand a three page document or are they more likely to

skim through it in their excitement to get started?

Medium – how the brief is conveyedWould a verbal briefing or even supervised video briefing be more effective than a document customers have to read before using the equipment?

Concise messageIs the most important information being conveyed as clearly as possible?

ConfirmationDo you have written confirmation that customers have received the pre-use briefing? We cannot contract away the liability of an operator for their customer’s safety, but we can, via a signature, confirm that those customer have been briefed prior to use of the equipment.

EquipmentThe equipment must be safe, well maintained and regularly inspected. This must all be documented to ensure that general upkeep is monitored and up to date. Section 4.2 of BSI PAS 5000 specifies that operators of trampoline parks must ensure their chosen manufacturers provide them an operation and maintenance manual to assist with upkeep.

ConstructionAn extensive portion of BSI PAS 5000 is dedicated to the construction of park equipment, with height, width and even angular regulations provided. Operators should try and ensure manufactures’ compliance with these regulations whilst the ground under the bouncing equipment should be soft and the area well lit.

Although this is a relatively brief overview, our guide should help provide a starting point to ensure compliance in the event of a claim.

3,000%Rise

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She relied on a medical report from a GP as opposed to a Gastroenterologist, which would have been more appropriate, with the report stating that the illness and confirmed campylobacter were, on the balance of probabilities, as a result of the meal consumed at the restaurant.

The DefenceLiability was denied on the basis that the food supplied was properly and safely prepared and safe for consumption. Our client was able to produce documentation in support, demonstrating good food safety practices and compliance with HCCAP.

The main crux of the defence was around the incubation period for campylobacter. The claimant stated that she had become ill within two hours of consuming the meal, with the onset of symptoms including vomiting and diarrhoea.

Whilst most campylobacter infections in humans originate from consumption of contaminated foodstuffs, the typical incubation period (between ingestion of the contaminated foodstuffs and the first onset of symptoms) is between 24-72 hours, the latter being most common. The claimant’s onset of symptoms in just two hours meant she must have contracted the bacteria prior to visiting the restaurant.

In addition, others would most certainly have experienced illness due to the way in which the food in question was supplied and prepared. Yet nothing was reported over the same period.

In terms of the medical evidence and given this was a fast track matter, the only evidence before the judge was that of the GP. Robust Part 35 questions were put to the expert and the responses contradicted the initial report, supporting the defence.

JudgmentIn delivering his judgment, the judge stated that he had been impressed by our client’s policies and procedures, with clear evidence that HACCP was in place and being adhered to. In addition he was not satisfied that the claimant had proved her case, with the incubation period falling outside of what was needed to establish liability. The claim was therefore dismissed.

Vickie Forsyth vforsyth@keoghs.co.uk

Timing is everything

The ClaimHaving purchased and consumed

a meal at our client’s restaurant, the claimant subsequently became ill with

food poisoning. A stool sample confirmed she had campylobacter with the claimant alleging various

breaches of the Sale of Goods Act 1979.

LessonClaims with confirmed pathogens, such as campylobacter can be defended. This is not strict liability. However, it is imperative that businesses working with food in the leisure and hospitality sector have in place, and can evidence compliance with, a HACCP plan.

Defending a confirmed pathogen

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There has been much talk recently in the leisure and hospitality industry around AI and its potential role in dealing with claims.

Despite the legal sector buzzing with AI solutions over the last year or two, most examples appear to hijack the true meaning of artificial intelligence. The automation of certain processes to speed up resolutions is not, in and of itself, AI.

A true Artificial Intelligence solution requires genuine automation and the ability to sift through information provided and make cogent decisions based on that information.

An authentic client interface and interaction with the AI at the point of contact is also of the utmost importance, ensuring necessary clarification or relevant documentation can be requested and sent without the need for a login and portal access.

Keoghs is at the forefront of the development of this technology for the legal industry, as Innovation Director, Dene Rowe, explains:

“Keoghs has now deployed Lauri, the first true AI lawyer to hit the insurance market, for a number of clients now.

Lauri is a genuine game-changer, providing a solution to the market that is fully automated and robotic in nature but importantly delivers a quantum leap in speed, efficiency and cost reduction.

Additionally, we don’t want to simply bring a DIY-litigation portal based system to market that would create duplication and inefficiencies in our clients’ own businesses. For AI to be embraced, there has to be a benefit for our clients, and replicating a human interaction with no extra systems, logins or processes is crucial. With Lauri, if we cannot integrate system-to-system through the technology itself, then the claims handler simply communicates through email as they generally would at present with human lawyers.

At Keoghs we say Lauri is the future, better handled; but this new member of our team shows that the future is already here.”

Stay tuned for more info…

AI isn’t the future, it’s already here and handling claims

Rise of the Robots

PI Futures ConferencePaul Edwards, Director, and Vickie Forsyth, Litigation Specialist, attended the PI Futures Conference on 18 September 2018. Paul delivered a hard-hitting presentation tackling claimant’s costs, particularly in relation to illness group action claims.

AIRMIC 2018Back in June 2018 the Keoghs Corporate and Sector Risks teams attended the AIRMIC conference held in Liverpool. The conference was informative and enlightening as always and was a great way for Keoghs to highlight their new Liverpool presence.

Your dedicated teamIf you need some advice for your business feel free to contact:

David ScottPartner

T: 0151 921 7143

E: dscott@keoghs.co.uk

Vickie ForsythLitigation Specialist

T: 0151 921 7163

E: vforsyth@keoghs.co.uk

Emma MitchellParalegal

T: 0151 921 7168

E: emitchell@keoghs.co.uk

Coral HallworthParalegal

T: 0151 921 7157

E: challworth@keoghs.co.uk

Beth McNallyParalegal

T: 0151 921 7299

E: bmcnally@keoghs.co.uk

David HennessyPartner

T: 0141 238 0068

E: dhennessy@keoghs.co.uk

Bolton | Coventry | Glasgow | Liverpool | London | Manchester | Southampton

E: info@keoghs.co.uk @keoghslaw

W: keoghs.co.uk F: 01204 677 111

Head Office:2 The Parklands Bolton BL6 4SE T: 01204 677 000

Disclaimer and Copyright NoticeThe contents of this document are considered accurate at the time of publication. Nothing in this document constitutes specific legal advice. You should always consult a suitably qualified solicitor about individual legal matters. Keoghs LLP accepts no liability for errors or omissions in this document. All rights reserved. This document and the information contained within it are provided for personal use only. No part may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical photocopying, microfilming, recording, scanning or otherwise for commercial purposes without the written permission of the copyright holder.

Keoghs LLP is a limited liability partnership registered in England and Wales (registered number OC 321124) which is authorised and regulated by the Solicitors Regulation Authority. A list of the names and our members is available for inspection at our registered office, 2 The Parklands, Bolton, BL6 4SE. We use the word “partner” to refer to a member of the LLP. Keoghs Scotland LLP, is a limited liability partnership registered in Scotland (registered number SO305857) which is authorised and regulated by the Law Society of Scotland and trading from its registered office 2 West Regent Street, Glasgow, G2 1RW. A full list of members is open for inspection at the registered office. Keoghs Scotland LLP utilises the trading name Keoghs under licence from Keoghs LLP.

© Keoghs LLP. All rights reserved.

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