Lyon v Maidment [2002] EWHC 1227 (QB) (25 June 2002)

Neutral Citation Number: [2002] EWHC 1227 (QB) Case number: HQ0100245 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 25 June 2002 B e f o r e : HIS HONOUR JUDGE BOWSHER Q. C. ____________________ Between: MICHAEL JOHN LYON Claimant - and - NICHOLAS MAIDMENT Defendant ____________________ Nigel Cooksley Q. C. (instructed by Irwin Mitchell, solicitors) appeared for the claimant Benjamin Browne Q. C. with him T. Montagu-Smith (instructed by Martin Shepherd & Co., solicitors) appeared for the defendant Dates of trial: 17, 18 June, 2002 JUDGMENT ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © INTRODUCTION The claimant claims damages for injuries suffered by him in a skiing accident more than 3 years ago on 19 January, 1999 in Andorra. It is not surprising that he and members of his skiing party have had difficulty in remembering details of a tragic accident that took place in seconds so very long ago. There is something wrong when they are required to do so. I found all of the witnesses in this case to be honest and trying to help the court to the best of their ability. Leading counsel have made it plain that no dishonesty is alleged against any witness. The lapse of time since the accident has added to the stresses of the accident in making the evidence of the witnesses unreliable in various degrees. The Claim Form in this action was issued on 17 January, 2001. It was not until 26 September, 2001 that an order was made that there be a trial of liability only and the parties were given a further period of at least 6 months to prepare for trial on a very limited issue. But of all the delays, the greatest was the period of 2 years between the accident and the issue of the Claim. One of the things that went wrong was that a year was taken up in seeking compliance with a pre-action protocol. The claimant was dissatisfied with the first firm of solicitors that he instructed and he later instructed his present solicitors. HISTORY On 18 January, 1999, the day before the accident, the claimant arrived in Andorra with the defendant, Mr. Richard Peutrill, and Mr. Steve Tinsley. The defendant was and is a friend of the claimant. Mr. Peutrill was a "skiing friend". The claimant had met Mr. Peutrill on previous skiing trips but had not seen him apart from skiing holidays. The claimant said that he had not met Mr. Tinsley before or since that holiday. However, Mr. Tinsley said that this was only the second time that he had been on skis and the first time was the previous year when he had received tuition from Mr. Peutrill and the claimant only. He did not attend a ski-school. I accept that evidence from Mr. Tinsley. He was clearly the least experienced of the party. There are many conflicts of recollection about what happened on 19 January, 1999. The first conflict is whether the accident happened in the morning or the afternoon. In a statement signed on 24 September, 1901, the claimant said that the incident occurred in the morning. In his oral evidence, he accepted that that was wrong and gave an explanation for being wrong. That would not be a very important mistake were it not for the fact that Mr. Tinsley said that on the morning of that day the claimant had a fall for no apparent reason. His companions went to help him and retrieved his skis and equipment. The claimant has no recollection of that. I accept that the accident the subject of this action happened in the afternoon and I also accept that the claimant had a fall in the morning (without injury) for which no-one else was to blame but himself. The fact that the claimant cannot remember the fall in the morning is significant. The fall was important and the fact that the claimant cannot remember it is a pointer that suggests that his memory is not reliable. In the afternoon, the claimant, the defendant, and Mr. Peutrill arrived at the top of the ski lift at the Tamarro Run at an area in Andorra known as Soldeu el Tarter. The claimant does not remember Mr. Tinsley being there, but I accept Mr. Tinsley's evidence that he was there and went down the run shortly after the other three though he was very nervous because of his inexperience. In the Particulars of Claim, the claimant alleged that there were only three men on the run, himself, the defendant and Mr. Peutrill. In oral evidence he said that Mr. Tinsley was in the party but he might have been left behind because he was inexperienced. When asked to formulate his claim, the claimant identified a totally different run. The claimant explained that he took the advice and guidance of his junior counsel, Mr. Richard Cartwright who had been skiing in Andorra. I accept his evidence in that regard, but the fact remains that the claimant could not remember where he had been skiing. I can understand that in the ordinary course of events after a week or fortnight of skiing someone might be confused as to where he was skiing on any particular day, but this was the first and only day. I accept that the claimant was honestly confused, but the fact that he was confused throws doubt on the rest of his evidence. It seems likely that Mr. Cartwright was misled because the claimant told him that he was on a Black run. Runs are classified Green, Blue, Red, Black: Green being the least difficult and Black being the most difficult. The run in question was and has always been a Red run for the whole of its length. The run starts from the top of a chairlift with a convex slope continuing with a concave slope down into a dip and then up another smaller slope the other side. THE ACCIDENT Everyone is agreed that of the four, Mr. Peutrill went off first. It has been said that he went "like a bullet". He saw a window of opportunity when the slope was clear and he took it. The party agreed that the slope went down into a dip and then up another slope and unless one went down fast enough one would have to undertake a tedious walk up the other side. So they decided to "schuss" down the slope. In other words they were going to go as fast as they could down the slope to get enough momentum to take them across the dip and up the adverse slope the other side. Mr. Peutrill went first and succeeded with that endeavour. To stop himself he did a turn at the top of the slope and looked back. He saw the claimant in a tuck (schuss) position and then in about a second the claimant fell over. Before the claimant fell, he appeared to be in control. If he had been in a collision before falling, he would probably have shown signs of being out of control before he fell. Mr. Peutrill did not see the defendant near the claimant before the claimant fell, but he saw the claimant for less than 1 second before he fell. However, although he did not say so specifically, Mr. Peutrill did not claim to have seen the defendant in the vicinity of the claimant after he fell. Oddly, Mr. Peutrill said that as he went down the slope he heard behind him the defendant say, "You bastard" in a friendly but not aggressive fashion. The defendant agreed that that was the sort of thing that he might have said to another of the party in a friendly way if he were being overtaken but neither he nor the claimant remembers him saying that. Since Mr. Peutxill was some way ahead of the others it seems unlikely that he would have heard the defendant say such a thing. I think that Mr. Peutrill has confused this occasion with another or else he misinterpreted something else shouted by the defendant. I will return to that possibility. Mr. Tinsley saw the claimant and defendant set off. They were in line astern with the claimant following the defendant. He thought that they were maybe 20-30 feet apart but it was difficult to tell. He then lost sight of them probably because he was concerned with his own inexperience. About 2 seconds after he last saw them he saw a cloud of snow. He did not see the claimant fall. He just saw a cloud of snow. He did not say that he saw the defendant near the cloud of snow. The defendant also said that he went off before the claimant. He said that at no point did the claimant catch him up. In cross-examination the defendant agreed that as he was in front of the claimant it was possible that he might have skied in front of him but he does not think that he did. It was suggested that a woman may have come across in front of him causing him to swerve. He did recall that on one occasion, but he could not remember whether it was that occasion, a woman did come across in front of him and he screamed at that woman. It may be that Mr. Peutrill was thinking of that occasion when he recollected a shout. The defendant was not aware of any contact with either the claimant's body or the claimant's skis. It was not until the defendant joined Mr. Peutrill on the other side of the bowl that he discovered that the claimant had fallen. It is agreed that when one skier is following another down a slope, the burden is on the uphill skier to take care to avoid the downhill skier. The downhill skier does not have eyes in the back of his head and if he has to swerve to avoid a rock or another skier he has to rely on those behind him to take appropriate action. The claimant has given differing versions of how the accident happened. In a letter written on his behalf by his former solicitors, dated 27 June, 2000, it was said that the accident occurred in the early morning when it was still cold on a black run on a piste composed mainly of compacted ice. The claimant was seen on 28 February, 2001 by Mr. A. M. Tromans F. R. C. S. for the purpose of a medical report. On that occasion the claimant apparently said that the accident took place on a black ski slope at 10 a.m. In a written statement dated 24 September, 2001, he wrote that the weather was sunny and bright and the snow conditions were good. In his report, Mr. Tromans recorded that after his fall the claimant felt as though his head had come off though he realised that it could not have done, he was unable to feel his body and he experienced immediate difficulty in breathing and was frightened of dying and of becoming "another Christopher Reeve". When help arrived he was given an oxygen mask. All of that was agreed by the claimant. Mr. Tromans also recorded that the oxygen mask was of no benefit and a passing qualified male nurse undertook an emergency tracheostomy on the ski slope and after being airlifted to hospital the claimant "was unaware of the next two or three days, regaining consciousness in a hospital in Andorra". The claimant denied that he told Mr. Tromans that he had a tracheostomy on the mountain and said in evidence that a tracheostomy was first performed in the hospital in Andorra. The claimant said that Mr. Tromans must have heard the story of the tracheostomy on the slope from others. How such a story, if false, could have got about was not explained. However, in a letter dated 7 October, 1999, the claimant's then solicitors wrote that a nurse who happened to be on the slope, using a pair of sunglasses performed a tracheostomy and saved the claimant's life. The claimant also said in evidence that he was fully conscious from the moment of his fall until his return to hospital in England at Odstock. The defendant himself said that no tracheostomy was performed on the slope. However, the first action of the defendant, with Mr. Peutrill, was to ski down to get help and help had arrived before they got back. It is possible that a tracheostomy was performed on the slope before the defendant got back to the claimant. It is possible that it was not performed until the claimant reached the hospital in Andorra. What is certain is that from the outset the claimant was having difficulty in breathing. Mr. Ameen, a neurosurgeon from the Royal Free Hospital, who gave evidence, explained that there were two causes of difficulty in breathing. There was a mechanical blockage from a swelling from a haematoma in the neck, and there was loss of neurological control of the breathing system due to injuries to the spinal cord. A tracheostomy is a serious procedure that would not be performed unless there was an obvious need for it. In hospital in Andorra the claimant received artificial ventilation for a matter of days. Mr. Ameen said that the claimant would have had to be kept under a general anaesthetic for such a procedure. The claimant gave an account of the accident by letter from his then solicitors dated 29 November, 1999: "Mr. N. Maidment, being entirely reckless of our client's safety, and whilst on a parallel skiing path, cut across our client, trapping one of his skis and causing him to somersault through the air before landing". When interviewed by Mr. Tromans on 28 February, 2001, the claimant said that he "was skiing parallel to a friend who suddenly changed direction and skied into him". In the Particulars of Claim dated 4 April, 2001, it is said that the claimant took off after the defendant. Adopting a schuss position, "he descended in a straight line at a high speed and caught up and overtook the defendant. The claimant then continued his descent ahead of and at a safe distance from the defendant. To the rear of the claimant, the defendant increased his speed so as to begin to gain on the claimant. As he drew level he suddenly and without warning caused his skis to turn into the claimant's path and collided with the claimant". In his written statement dated 24 September, 2001 the claimant gave an account of the defendant setting off first and himself then overtaking him. He said that he had been skiing in front of him for about 10 seconds before he was aware of him having caught up and being on his left hand side. He wrote, "The next thing I remember is Nicholas swerving suddenly and crashing into my side. He caught my left ski, and I lost my balance and fell. It all happened so quickly that I had no chance to turn away from him and avoid contact". The claimant wrote that he saw no other skier or other obstruction on the piste ahead of him, so he does not support the evidence of the woman coming across the path of the skiers. In cross-examination, the claimant accepted that he may have been wrong in his estimation of the number of seconds that he skied in front of the defendant. The claimant said that he was not sure whether the defendant hit him body to body or went over his skis. "All I can tell you is I know Nick hit me. ... Whether the bang I felt was me hitting the snow or Nick skiing over my skis is irrelevant. He crashed into my skis but I am not saying he hit me body to body. ... I saw him coming towards me and it may be that he skied over the back of my skis". I did not read any of the previous versions of the accident as including an allegation that the defendant skied over the back of the claimant's skis. Having heard the claimant and the other witnesses of fact, I am as sure as can be that the claimant really does not know how the accident happened. He was skiing down the slope with great enjoyment on the afternoon of the first day of a skiing holiday and suddenly he found himself on the snow with terrifying injuries. He has tried to explain that accident to himself without blaming himself and can only do so by blaming his friend. The latest version, that his friend, the defendant, skied over the back of his skis is an attempt to put the blame on his friend without saying that his friend is lying. A skiing expert, Mr. Chris Exall, said that one might ski over another's skis without experiencing any "check" in one's motion, but, while he did not say so, it is clear that one could not ski over another person's skis without knowing that one had skied dangerously close to that other person. Whatever version one takes of the claimant's account of the accident, if one accepts that version, the defendant's denial of any knowledge of participation in the accident must be dishonest. At the very least, if he was responsible for the accident he must know that he skied dangerously close to him, either sideways on or over the back of his skis. The defendant was very shocked by the awfulness of his friend's injuries. The lapse of time has no doubt made his recollection not reliable as to all surrounding details. But as to the central salient facts, if his evidence were wrong it could only be because he is dishonest and lying under oath. The claimant by his leading counsel has disavowed any suggestion that the defendant has given dishonest evidence. Quite apart from that disavowal, I find that the evidence of the defendant was honest and in essential details accurate. On the other hand, while I find the claimant completely honest, for reasons that do not in any way reflect on his character, I find his evidence about the matters in issue before me to be totally unreliable and I would not accept his evidence without corroboration, which is absent so far as blame is concerned. The claimant suffered appalling injuries. At the time, for good reason, he feared that the outcome of those injuries would be far worse than has been achieved by skilled medical treatment. Understandably, his accounts of what happened are inconsistent and unreliable. I think that the most likely cause of this accident was that the claimant, whose experience was limited to two weeks holiday per year over ten years, was skiing too fast for his ability on the first day out in 1999 and, like many other skiers, he fell without any fault on the part of anyone else. On the day in question, he fell twice. He fell once in the morning seriously enough to lose his skis and other equipment which was retrieved by his friends, but without personal injury. He fell again in the afternoon sustaining very serious personal injuries. The report of the local skiing authority was that the cause of the accident was excessive speed. . It seems likely that when in hospital in Andorra, when he was still in a very bad way, the claimant indicated by a communication achieved by blinking that the defendant was in his view responsible for his accident. I find the evidence about this wholly neutral. THE EXPERT EVIDENCE Since I have heard expert evidence I should say something about it. Mr. Peter Cliff visited the site and helpfully identified the run in question, ascertained its classification and took photographs and made a drawing. His measurements of altitudes on the site have not been questioned but his estimates of distances have been questioned. On the basis of those estimated measurements, the calculated speeds of skiers that he observed are unlikely. I do not place reliance on the detailed estimates of his measurements. But Mr. Cliff said that in his view there was not enough length in the run for the events described by the claimant to have taken place. His detailed estimates of measurements may have been wrong, but his general view of what could have happened on a slope is worthy of weight. In relation to the claimant's statement in his written statement, "The next thing I remember is Nicholas swerving suddenly and crashing into my side. He caught my left ski, and I lost my balance and fell. It all happened so quickly that I had no chance to turn away from him and avoid contact", Mr. Cliff said, "I think it is possible to catch someone else's ski, not to fall oneself and even not to be aware one has done it. But if a skier swerves suddenly and crashes into someone else all at high speed, that skier will in my view certainly be aware of it and will more than likely also fall". That opinion does not deal with the suggestion that the defendant skied over the back of the claimant's skis, because that suggestion had not been made when Mr. Cliff made his report. Mr. Chris Exall gave evidence as a skiing expert on behalf of the claimant. He has distinguished qualifications but has not visited the site. He referred to the FIS Rules for safety in winter sports that include guidance along the lines of paragraph 16 above. He agreed that you can "catch an edge" (i.e. lose control) when skiing at the upper limit of one's capability without anyone else's fault. The defence admits that the FIS rules (the French designation of the rules of the International Ski Federation) govern the conduct of skiers and any breach of those rules would result in civil liability for any injuries caused by such breach. Medical evidence was called from Dr. North, who is not medically qualified but is the head of the Department of Clinical Psychology at Salisbury District Hospital, and from Mr. Ameen, to whom I have already referred, who is a neurosurgeon at the Royal Free Hospital. The evidence of Dr. North and Mr. Ameen discussed the possibility that the claimant due to his brain being starved of oxygen (a state known as hypoxia) may have made up inaccurate information without having any awareness that the information is incorrect. That process was described as "confabulation", an assault on the English language that appears to be derived from the American Psychiatry Press Textbook of Neuropsychiatry edited in 1997 by Stewart C. Yudofsky MD and Robert E. Hales MD. The process is well known to judges without the regrettable label and it may occur without hypoxia. In this case there clearly was hypoxia. Without signs of hypoxia tracheostomy would not have been performed (wherever it was performed) and ventilation would not have been performed in the hospital in Andorra. The claimant's brain was starved of oxygen and it is likely that his memory and mental processes were affected with regard to his accounts of the accident. I must make it plain that I am not suggesting that the claimant's mental processes are now in any way impaired in his daily life. CONCLUSION For all those reasons I find for the defendant and reject the claimant's claim. 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