Matthew Walker v Mersey Care NHS Foundation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Constable |
| Judgment Date | 22 January 2024 |
| Neutral Citation | [2024] EWHC 119 (KB) |
| Court | King's Bench Division |
| Docket Number | Appeal No: 52 OF 2023 |
[2024] EWHC 119 (KB)
Mr Justice Constable
Appeal No: 52 OF 2023
Claim No: H75YX259
IN THE HIGH COURT
KING'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Daniel Bennett (instructed by Harris Fowler Solicitors) for the Applicant
Alexander Williams (instructed by Weightmans LLP) for the Respondent
Hearing date: [22] January 2024
Introduction
On 1 August 2018, the appellant, Mr Matthew Walker, was working as a nursing assistant at the Scott Clinic in Rainhill, at St Helens. This is a medium secure mental health unit. Mr. Walker was asked to participate in a game which he referred to as ‘soft touch’ football. There were 11 patients plus three members of staff. One member of staff was the referee, and the two others played. Mr. Walker, who was playing in goal, sustained a serious fractured radius when, he said, he protected his face from the ball kicked hard by a colleague Mr Dennis Callaghan. The medical experts agreed that Mr Walker suffers, as a result, from a restricted range of movement, loss of function and difficulty in power work and heavy bimanual work, which will interfere with manual physical activities such as restraining patients at work.
Mr. Walker brought an action against the Mersey Care NHS Trust (‘Mersey’), on the basis that Mr Callaghan, for whose actions it was common ground Mersey were vicariously liable, had kicked the ball hard and high, and had failed to follow the rules of the soft touch football game. It was common ground that if this had been an ordinary game of football, what happened to Mr Walker would properly be seen as an unfortunate accident which would not have given rise to a cause of action. Mr Walker's case was that this was different: this was soft touch football with its own rules. It was materially different from five-a-side football and the key pleaded rule of soft touch football was that the football was not to be kicked hard or above chest height.
On the morning of trial, taking place on 17 August 2023 before Recorder Kennedy KC in the Liverpool County and Family Court, Mersey sought to amend its Defence. The key amendment was set out at paragraph 3. It stated:
“In the light of the matters raised within the skeleton argument of the claimant, dated 14th August 2023, the defendant amends this defence in order to provide clarity on its case at trial and more particularly to bring the pleaded defence into line with the witness evidence. The claimant is not prejudiced. The defendant's witnesses do not recognise the term ‘soft touch football’, nor are they aware of any set rule or guidance for that game as contended for by the claimant. The football played and being played at the time was akin to normal five-a-side football, the game was played at a normal pace. It was not specified that the ball should be kicked hard, albeit it was expected that excessive force would not be used. The kicker of the ball in question, Dennis Callaghan, does not recall any restriction on the ball not being kicked above chest height. If there was a member of staff refereeing a game, they would sometimes remind the players that it was a friendly game and there should be no aggressive tackles, but tackling was allowed within reason and the ball was allowed to be kicked with normal force. If players became overly competitive or carried away the referee would step in to calm the situation down.”
The amendment was resisted on the basis that, as Mr Bennett, counsel for Mr Walker contended, although the substance of the amendment had indeed been within the witness statement of Mr Callaghan served nearly a year previously, the case was not a pleaded one. It was accepted in front of the Recorder by Counsel for Mersey, Mr Sandiford, that the amendment was late. There was a debate about the proper interpretation of the pleadings, and whether or to what extent the new plea should be seen as bringing the pleadings in line with the witness evidence. The Recorder allowed the amendment, and refused the following application for an adjournment in a reasoned judgment (‘the Application Judgment’). It is this case management decision that lies at the heart of the first part of the appeal before me.
Recorder Kennedy then proceeded to hear the trial. He gave judgment on 18 August 2023 (‘the Main Judgment’). This found, centrally:
‘did not find Mr Walker's description of soft touch football, something materially different to a friendly game of five-a-side as convincing. ….
…
There was no coherent case put forward on behalf of the claimant as to what was and what was not allowed in terms of the power of shots – when does a soft shot cease to be a soft shot? I shared Mr Callaghan's confusion as to how this distinction could be realistic or could be realistically refereed….It makes no sense for there to be no document setting out how it was different and what the key differences were.
…
The claimant got on with the game and said nothing to anyone at the time….His failure to do so is far more consistent with his injury being the unfortunate consequence of an ordinary shot, not the breach of any rule. It also sits uneasily with his evidence that the referees are astute to enforce the rules, not just at the beginning of the game but consistently throughout it.
…
Shin pads were available and worn. I agree that is…an indicator of the more normal game of five-a-side.
…
I found Mr Callaghan to be an objective careful witness who was doing his best to assist the Court….
…
…I find the balance of the evidence clearly favours the defendant's case for the reasons I have set out, and the claim is dismissed.’
Mr Walker also appeals against the Main Judgment.
Permission to appeal was granted by Order of Mr Justice Ritchie dated 16 October 2023. Mr Justice Ritchie considered that the Grounds did not comply with CPR r52 PD 52B paragraph 4.2(d), in that there are no clear and simply expressed numbered Grounds. Instead, the Grounds were intermingled with the Skeleton Argument. Nevertheless, Ritchie J gave permission on 4 Grounds as extracted from the material. The first three relate to the Amendment Judgment and the fourth to the Main Judgment.
(1) (Para 23 of the Skeleton Argument) Mismanagement of the amendment application (errors of law, absence of formal amendment application, wrong decision on the application);
(2) (Para 24 of the Skeleton Argument) Misunderstanding the pleading;
(3) (Para 25 of the Skeleton Argument) Finding of non-compliance of the Defence with the CPR and Inappropriate exercise of management powers (the amendment was a complete ‘about turn’);
(4) (Para 30 of the Skeleton Argument) Factual findings as to the nature of the game.
The Pleadings
Given the application central to the first part of the appeal, it is necessary to set out the pleadings in more detail.
The Particulars of Claim included the following averments:
‘3. One of the activities which the Claimant was frequently instructed to carry out for the Defendant was a “soft touch” football game for the residents. This would be carried out approximately twice per week, depending on availability of staff and residents to participate.
4. The rules set out for each game was that the football was to involve no tackling, be carried out at a slow pace, with the football not to be kicked hard or above chest height. A staff member would act as a referee to enforce these rules.
5. Whilst it was fairly common for some residents to get carried away and become over competitive, it was expected and important that staff members participating in the game abided by the rules.
6. On 1st August 2018, the Claimant was asked by his supervisor to take part in a soft touch football game in the gym as the Defendant was short of staff participants. The game involved 1 1 patients split into two teams, with a member of staff on each team. A third member of staff acted as referee.
7. Prior to the game commencing, the Defendant's supervisor, who was acting as referee, reminded all participants, including the staff members, of the rules of the “soft touch” football game.
8. The Claimant was asked to play in goal for his team. As the game progressed, the Defendant staff member on the opposing team advanced with the ball towards the Claimant's goal. He then kicked the ball very hard, directly at the Claimant's face. The Claimant used his right hand to protect his face. The Claimant blocked the ball with his right hand but sustained injury to his right wrist as a result.’
These paragraphs were responded to at paragraph 3 of the Defence:
‘ 3. The claimant is put to strict proof in respect of paragraphs 3 – 8 inclusive. The defendant accepts that residents did participate in “soft touch” football and that on 1 August 2018 the claimant was participating in a game, however the claimant is put to strict proof that he was specifically instructed to participate in the game. The defendant contends that the claimant was only required to escort patients to the football activity. The claimant was not required to actively participate. To clarify, the defendant will say that the claimant's role was to escort and observe the patients, participation in the soft touch football match was not mandatory.’
Just as this paragraph uses the phrase ‘soft touch football’, the phrase was used a number of other times (eight in total), in particular in paragraph 6 of Defence which purported to set out Mersey's positive case:
“ 6. The defendant pleads a positive case as follows:
a) The claimant was only asked by the nurse in charge if he would escort patients to the soft touch football activity. As a member of ward staff escorting the patients, the claimant was not required to actively participate. The claimant's role was simply to escort and observe the patients. Participation was...
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