Personal injury matters often involve disputes regarding levels of risk and whether or not they were willingly taken by the claimant. This issue played a part in a case relating to an injury a man sustained during a game of football.
During the course of his employment as a nursing assistant at a medium secure mental health unit, the man participated in a game which he referred to as 'soft touch' football. The game involved patients and members of staff. While playing in goal, the man sustained a serious fractured radius, which he said occurred when he protected his face from a ball that had been kicked hard by a colleague. As a result of the injury, the man suffers from a restricted range of movement, loss of function and difficulty in power work and heavy bimanual work.
The man launched proceedings, claiming that the NHS foundation that employed him was vicariously liable for the injury caused. He asserted that the injury had taken place in a game of soft touch football, not ordinary five-a-side football, and that one of the key rules of this sport had been breached, namely that the football was not to be kicked hard or above chest height.
On the morning of the initial trial, the foundation was allowed to amend its defence, to align it with the testimony of its witnesses. It argued that the football being played at the time was akin to normal five-a-side football, and that the game was played at a normal pace. Its witnesses did not recognise the term 'soft touch football' and were unaware of any set rule or guidance for that game as contended for by the man.
Having heard evidence from both sides, the judge ruled in favour of the defendant – having found the man's description of soft touch football as something materially different from a friendly game of five-a-side unconvincing.
On appeal, the man challenged this judgment and the decision to allow the late amendment to the defence. The High Court dismissed his appeal on both grounds, finding that the judgment was obviously not irrational and turned on findings of fact. It also concluded that the decision to permit the defence's amendment and refuse any adjournment fell within the wide discretion permitted to a judge in relation to issues of trial management.