ON APPEAL FROM MILTON KEYNES COUNTY COURT
HIS HONOUR JUDGE HOROWITZ QC
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE RIMER
THE HONOURABLE MR JUSTICE WARREN
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Mr Nicholas George (instructed by Spearing Waite LLP) for the Respondent
Hearing dates: 4th October 2011
Crown Copyright ©
Lord Justice Longmore:
"A check is to be conducted by walking across the pitch covering all or most of the ground at a reasonable walking pace. Phil Smith's "quick walk" is not quite enough. On this occasion the inspecting coach or coaches would need to have in mind that the cricketers had recent use of the pitch with plastic markers. It may have been courteous and even required as between the cricket club and the rugby club that the cricketers' obligation was to remove all traces of their presence but that does not of itself delegate or discharge the rugby club's duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match.
Second in any event, while not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch down ends of the pitch where players are to be expected to dive or fall onto the ground."
The reference to Mr Smith was to Mr Phil Smith, deputy chairman of the Club and assistant groundsman, who said in the course of his evidence that a check of the pitch should be made but that a quick walk over the pitch should be sufficient.
"You would have had to go down on your hands to see it."
The judge thought this was an attempt by Mr Tressler to improve on his written evidence and rejected that piece of oral evidence. He then concluded
"I am not persuaded that a reasonable inspection – which did not take place – would not have been likely to have come across the cricket marker stump that caused this injury."
i) a quick walk over inspection would have been sufficient;
ii) even if a more detailed inspection had taken place, such inspection would not have revealed the existence of the stub of the cricket marker.
Mr Sutton submits
i) a detailed inspection of the pitch should have taken place;
ii) such detailed inspection would, on the balance of probabilities, have revealed the stub and it would have been removed;
iii) in any event the judge's finding on causation was a finding of fact with which this court should not interfere.
Costs – Summary Assessment
Lord Justice Rimer:
Mr Justice Warren: