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QOCS protection lost after canoe claim struck out

Costs: payment ordered [1]

Costs: payment ordered

The widow of a man who died in a canoe accident has lost the protection of qualified one-way costs shifting (QOCS) after her fatal damages claim was struck out.

Judge Lopez, sitting at Birmingham County Court, said Mandy Wall sued the British Canoe Union (BCU) as publisher, in 2003, of a guidebook on “English white water” covering the stretch of the River Teme in Shropshire where the accident happened.

Mr Wall, who died after his canoe became trapped at the bottom of a weir, was a member of the Wyre Forest Canoe Club, affiliated to the BCU.

However, the judge said there was no “relationship of proximity” between the defendant and Mr Wall to establish a duty of care between publisher and reader.

He went on: “If the duty of care as argued by the claimant were found to exist, it would mean that every publisher of every guidebook in the world on whatever topic or subject matter would assume an unlimited legal responsibility for the action and omissions of anyone who read their guidebook at any time after the publication.

“That responsibility would be unlimited – not only in terms of the indeterminate class of those who may read the same but also in terms of time.”

Judge Lopez said the “inevitable consequence” would be that no author would want to be exposed to liability for writing on topics which may result in physical injury.

Ruling in Wall v British Canoe Union (claim no. A38YP644 [2]), Judge Lopez said QOCS applied to claims under the Fatal Accidents Act 1976, or for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

He said that under CPR 44.15(1) costs orders made against the claimant “may be enforced to the full extent of such orders” where proceedings had been struck out, including on the grounds that the claimant has disclosed no reasonable grounds for bringing the proceedings.

The BCU argued that the claim should be struck out because the duty of care which the claimant contended was owed to her late husband “does not exist in law” and there was “no reasonably arguable claim on causation”.

Judge Lopez accepted the defendant’s arguments, ruling that the statement of case gave “no reasonable grounds for bringing the claim” and struck it out under CPR 3.4(2).

He added that, although it was not relevant to the existence of a duty of care, the guide “warned in the clearest of terms that it was no substitute for the canoeist’s own inspection, personal risk assessment and good judgment”.

Giving judgment for the defendant, Judge Lopez ordered the claimant, in accordance with CPR 44.15(1), to pay the defendant’s costs.