Paralysed cyclist set for £3m+ damages from mountain biking instructor after winning High Court case

oldstrath wrote:

Of course we're guessing, but plenty of comments from "lawyerly types" suggesting that Maclean's instruction consisted essentially of saying "go for it" to a guy he'd never met, which are indeed guesswork, incompatible with the published comment that the judge doesn't question his competence, and suggestive that some people aren't really clear about how to ride bomb holes.

You need to read around the story, in the original piece Ahmed gave evidence that he believed he had been instructed to go down the hill as quick as possible without braking (on the second go). That appears to have been accepted by the Judge. The thing is, do you honestly think the facts of this case can be condensed into the road.cc report above? There will be a huge amount of evidence given not just from these two but others as well. The comment isn't incompatible, people can be usually excellent but sometimes not. It's those cases where either they get away with it through chance or, as in this case, something else happens.

There's a comment above about professionals. This isn't about what witnesses say, it's how they say it, how it comes across etc. Then, at the end of the case, there's a legal summing up by both sides and a reasoned decision from the judge, days worth of it. So whilst lawyerly types (or, perhaps actual lawyers) on here are commenting on evidence they do so at least with some semblance of seeing how the decision has been reached on the limited evidence reported. It shouldn't be surprising therefore that there's a huge amount of detail  not reported as well. Not additional stuff perhaps, but detail. 

It's still odd. Road.cc is a place where we simply cannot understand how cases with a lack of evidence aren't prosectuted in criminal cases. Here, accepting that the systems are slightly different, a case in which someone wins having presented the Court with clear evidence which meets all legal tests, causes uproar. We see people decrying his massive payout. Well, guess what, he's in a wheelchair now. All very odd.

the nutcracker wrote:

I think it says a lot about the capitalist system that increasingly brings about all this blame culture ( for obvious financial gain) that if this guy who was instructing didn't have any insurance or had forgotten to renew it for whatever reason then the whole case probs would not have been brought cos the instructor was a youngish guy I'm guessing with no savings.  Or if this guy had fallen off and broke his finger non of this would have happened. Could you argue that he hadn't been taught how to fall properly? Even more negligence. A lot of this bullshit risk assessment stuff u can't even measure, a rabbit could have run out and put him off,  if nobody else saw it ure not gonna get £3M off thumper. and as someone alluded to people really start clutching at straws when £3M is involved. It's just some greedy toads trying to make someone else pay for there own total f@ck up. The insurance industry wants u to take out insurance cos they make money and scares the s@it out of u for perhaps not getting it. the lawyers want to accuse you and prove you liable cos they make money out of it and all the extra court cases keep the judges in gainful employment.... oh and that's before the appeal. Not a lot we can do about it I know but It's all one massive self perpetuating cash making scheme  and guess who wins.Am not a lawyer as u may have guessed haha ,  but would love 2C the detail of this judgement, is there any way of getting my hands on a copy?

What has he gained financially?

the nutcracker wrote:

,but would love 2C the detail of this judgement, is there any way of getting my hands on a copy?

Yes. I've had a look on the handed down judgments and it's not there, they only tend to publish the big ones. It's not private as it would have been read in open court but the courts are often funny about requests (without good reason). Give the Court a ring and ask if it's possible to obtain a copy. It's a reserved judgment so probably written and probably available.

The rule that you need to cite is CPR 5.4c, you may have to pay.

5.4C

(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;

(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).

Colin Peyresourde wrote:

I think the legal upshot is that if one of your clients has an accident then you are liable.

No. Only if the intructor has failed his obligations towards duty of care.

Colin Peyresourde wrote:

I think the legal upshot is that if one of your clients has an accident then you are liable. This seems a little unfair - as we know, and I'm not trying to insinuate anything about the gentleman in this case, it's perfectly easy for a client to be disingenuous about who is to blame for an accident, especially if it is in your interest to win big money.

That seems to be patently unfair considering there is a good degree of risk involved. In a fair society you should be compensated if you suffer injury through no fault of your own. But not if you imperil yourself and get injured. Seems like the answer is for the instructor to say that he guidance is limited to verbal instruction - it then becomes his clients choice if there after they wish to put themselves at risk - a good example where the law is an ass. The tuition is supposed to help mitigate the risk of the activity not remove it. 

No. If your client has an accident then you are liable if the damage suffered as a result of that accident was a consequence of your failure to discharge your duty of care. It's not "a little unfair", nor is it "patently unfair", including because the law recognises that sometimes people who suffered damage should have taken a bit more care of themselves (contributory negligence - this is why Mr Ahmed got only 80%). And it's not at all "easy to be disingenuous about who is to blame for an acicdent" in court. Honestly the judge has seen it all before and counsel for the respondent will have you whimpering in the corner even if you are faultless.

And if you believe that "In a fair society you should be compensated if you suffer injury through no fault of your own", then we don't live in a fair society. You get compensated by someone. So if you suffer injury through no fault of your own - or through no fault of any other person - you don't get compensated. You'd be more correct to say "In a fair society you should be compensated if you suffer injury through the fault of another" - which is what negligence is about.

And your answer ("for the instructor to say that he guidance is limited to verbal instruction - it then becomes his clients choice if there after they wish to put themselves at risk") might work or it might not. If his/her verbal instructions include "close your eyes and send it", I'd imagine the court would likely find for the applicant.

I am pretty comfortable that the court got it right because everyone involved in that decision was a PRO. Insurers don't sue - they settle. So for this to get all the way to trial meant that an insurer felt it was worth fighting which meant it got a lot of legal intellect focused on it.

bendertherobot wrote:

@oldstrath

Yes, oddly enough there's a mismatch. Because the civil law aims to compensate and the criminal law to punish. But they do work in tandem, so, in those cases where a criminal act has led to an injury then the civil law outcome will be damages. That there may also be a sentence that includes a fine is irrelevant. So saying there's a mismatch fails to recognise two systems working in tandem. You can't ignore the law for a moment. This is about law. There's no mismatch even if you don't because, if you don't, well what on earth are you comparing? 

The arguments for presumed liability are a better comparison. The law is very good at defining responsibility for businesses and employers, and absolutely hopeless on the road. <Insert the common argument about construction vehicles on and off site here>

Unforunately the misunderstandings are just as common, overstating its ability to deter bad driving on one side of the argument and journalists writing nonsense about presumed guilt on the other.

In this context, civil law is mostly about insurance companies throwing lawyers at one another to decide who is signing the cheques. That's all.

bikebot wrote:

bendertherobot wrote:

@oldstrath

Yes, oddly enough there's a mismatch. Because the civil law aims to compensate and the criminal law to punish. But they do work in tandem, so, in those cases where a criminal act has led to an injury then the civil law outcome will be damages. That there may also be a sentence that includes a fine is irrelevant. So saying there's a mismatch fails to recognise two systems working in tandem. You can't ignore the law for a moment. This is about law. There's no mismatch even if you don't because, if you don't, well what on earth are you comparing? 

The arguments for presumed liability are a better comparison. The law is very good at defining responsibility for businesses and employers, and absolutely hopeless on the road. <Insert the common argument about construction vehicles on and off site here>

Unforunately the misunderstandings are just as common, overstating its ability to deter bad driving on one side of the argument and journalists writing nonsense about presumed guilt on the other.

In this context, civil law is mostly about insurance companies throwing lawyers at one another to decide who is signing the cheques. That's all.

 

But presumed liability is still a civil concept. And we do no need people to understand the difference and a system of deterrence that works better. But there's still no real mismatch in terms of money, as alluded to by other posters, because one system is about one thing, the other about something else.

bendertherobot wrote:

@oldstrath

Yes, oddly enough there's a mismatch. Because the civil law aims to compensate and the criminal law to punish. But they do work in tandem, so, in those cases where a criminal act has led to an injury then the civil law outcome will be damages. That there may also be a sentence that includes a fine is irrelevant. So saying there's a mismatch fails to recognise two systems working in tandem. You can't ignore the law for a moment. This is about law. There's no mismatch even if you don't because, if you don't, well what on earth are you comparing? 

Judges will assess the evidence on the balance of probabilities in a civil case. An incompetent clown will lose because they've gone way beyond the duty of care required. But you can go just beyond it and still lose because that's how our system works. In this case an experience judge listening to all the evidence, rather than supposition, assessed it in line with very clear legal principles and found him negligent.

On the last point, it's very relevant. It's a demonstration that the Court will assess contributory fault where there's evidence of it.

I find it interesting that we clamour for justice on this site for every cyclist. But when faced with a cyclist and a neo cyclist, it doesn't seem to apply.

I think some of us struggle with the idea that this is 'justice' because we are all too well aware that, however good the instruction, and indeed however experienced the cyclist, offs can happen. Usually they are harmless and funny, occasionally injurious, and very infrequently severely damaging, as in this case.  

No, we don't want to do away with the very idea of negligence, but mountain biking is, and ought to be, a risky activity, and the apparent refusal to accept that occasionally the real shit will happen seems foolish, and likely to make useful instruction harder.

oldstrath wrote:

bendertherobot wrote:

@oldstrath

Yes, oddly enough there's a mismatch. Because the civil law aims to compensate and the criminal law to punish. But they do work in tandem, so, in those cases where a criminal act has led to an injury then the civil law outcome will be damages. That there may also be a sentence that includes a fine is irrelevant. So saying there's a mismatch fails to recognise two systems working in tandem. You can't ignore the law for a moment. This is about law. There's no mismatch even if you don't because, if you don't, well what on earth are you comparing? 

Judges will assess the evidence on the balance of probabilities in a civil case. An incompetent clown will lose because they've gone way beyond the duty of care required. But you can go just beyond it and still lose because that's how our system works. In this case an experience judge listening to all the evidence, rather than supposition, assessed it in line with very clear legal principles and found him negligent.

On the last point, it's very relevant. It's a demonstration that the Court will assess contributory fault where there's evidence of it.

I find it interesting that we clamour for justice on this site for every cyclist. But when faced with a cyclist and a neo cyclist, it doesn't seem to apply.

I think some of us struggle with the idea that this is 'justice' because we are all too well aware that, however good the instruction, and indeed however experienced the cyclist, offs can happen. Usually they are harmless and funny, occasionally injurious, and very infrequently severely damaging, as in this case.  

No, we don't want to do away with the very idea of negligence, but mountain biking is, and ought to be, a risky activity, and the apparent refusal to accept that occasionally the real shit will happen seems foolish, and likely to make useful instruction harder.

But you're extrapolating a different case into this one. In this one the judge felt that this wasn't one of those cases where nothing else could  have been done.

the nutcracker wrote:

The accused is still gainfully employed as a mountain bike instructor according to newspaper report and the judge claimed there is 'no reason to believe' he is not a competant one. I'm guessing he is teaching in exactly the same manner as before only now he gets everyone to sign a disclaimer at the start saying , if its a little bit steep for you or you are not sure if you can do it safely PLEASE DISMOUNT FROM YOUR BIKE AND WALK.........£3 million quid saved.

Save that he can't, cos you can't really disclaim liabilty for personal injury under the Unfair Contract Terms Act where the act is caused by their negligence.

the nutcracker wrote:

So i think the analogy with swimming is flawed because the risks in learning to swimming are well mitigated. When you volunteer to travel to a remote part of the countryside as a fully grown adult with such self confidence in your own biking ability that you believe you can ride down a mountain path safely (on what is an inherantly unstable machine ) its a slightly different situation.

No, volunteering doesn't change it in the slightest.  The instructor is responbile for assessing and instructing the student approproiately for their safety.  If the student ignores the instructions and advice given, then they would be responsible for their own actions.

If the reported details are accurate, and the instructor instead encourage him to attempt a course at speed without having assessed his ability, that's a failure of his first responsibility.

I'm assuming everyone is happy that this principle also applies to every professional driving instructor. They have a responsibility for the safety of the learner driver AND the public, regardless of what their student feels comfortable attempting.

Yorkshire wallet wrote:

The swimming pool is a highly controlled environment,

Because it's supervised. Remove the instructors, there's precisely zero control.  The instructor is responsible for ensuring that learners know where the deep water is, whether they should use flotation aids and for monitoring them. Neglect those duties, and they will share a degree of  liability or possibly be found wholly responsible.

These are the absolute basics of duty of care. If you are running a business dealing with the public you have to follow basic rules to protect them, it's the law. Although it doesn't seem very fashionable to say so in a world of "health and safety gone mad" nonsense, it's an almost entirely sensible and beneficial principle that exists in some form in almost every developed country.

The only question I can see regarding this case is the degree of liability, but the details as reported don't look good.