Hafezis Comments; Often in disputed personal injury cases either party may make an application to the Court to either strike out the case if it discloses no reasonable grounds for bringing or defending the claim (all or part) or to award summary judgement based on the belief that there is no need for a full trial as the outcome is obvious. However more frequently than not the court will come to the conclusion that there can be no determination of the issues on paper and thus without a trial, of the factual disputes and that a full investigation of the facts will be required to avoid the risk if injustice that the above orders would bring if agreed. This case is a perfect example of the Court’s views on such applications, where a request has been made to decide the outcome with any trial, investigating all the facts in open court.
SYMON PETROU v (1) MARCIO BERTONCELLO (2) JAMES DELL (3) GARY COOPER OF DUNSTABLE HANG-GLIDING AND PARAGLIDING CLUB (2012)
An application to strike out or instead for judgment without trial in a personal injury claim was refused because it was evident that there could be no determination of the issues exclusive of the factual disputes being resolved, and there were reasonable grounds for believing that a full investigation of the facts was essential to avoid the risk of injustice.
A new member of a paragliding club needed to undertake an “airspace” test designed to assess the skills of new members. The test was run by the chairman of the clu, the safety officer of the club and another member. The other club member was standing in a designated area whilst preparing to take off as the new member came in to land. The new member’s paraglider struck the stationary one and as a result, the new member fell uneasily and gained serious spinal issues, leaving him with significant ongoing disabilities. Because of this, he made a claim against the three members of the club who he thought were supposed to have a duty of care for his safety which they allegedly breached by failing to properly brief, assist, observe and oversee his flight.
The club argued that as an unincorporated association they generally had no duty of care to each other, and as such no action could be brought by one member against another. However the injured party argued that the membership in itself could not be vicariously liable for the acts of individual members.
It was apparent that there could be no determination of the issues in the instant case without the factual disputes being resolved. There was a need to conduct, at least in part, a critical analysis of the allegations and the evidence upon which P relied, demonstrating that there were factual issues to be determined before any conclusion could be reached about the existence of a duty of care. There were reasonable grounds for believing that a full examination of the facts was needed to avoid the risk of injustice.