Experience not essential
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19 March 2013
Roger Pearson on a tragic case of a young barrister's parachute accident
The High Court ruling two weeks ago on the tragic death of barrister Tatiana Pond in a freak parachute accident, focuses on new areas of sporting liability.
Pond died after an 8,000ft parachute drop ended with her landing on the plane from which she had jumped as it taxied back on the ground at Headcorn airfield in Kent.
Mr Justice Alliott held Pond negligent and 50 per cent to blame for the accident, even though she was a student parachutist with a low number of jumps in her log book.
The decision highlights a different but important aspect of sporting liability to other recent cases. The bulk of sporting litigation latterly has involved personal injury claims by participants in contact sports who have suffered at the hands or feet of fellow participants.
The case of Pond, however, who was 27 when she died in the 1989 accident, centred on the duty of care owed by the individual sportsman or woman to others and whether the duty was the same for a novice as for someone experienced.
In the case of Pond the central issue of the action was not injury to others, but damage to the plane she landed on. Headcorn Parachute Club, because it could not sue the insurers direct, sued her estate in a bid to recover the cost of the damage from the insurers who disputed liability.
The judge held that Pond was under a duty of care to others when parachuting and was 50 per cent to blame for the accident for attempting to land in an area she had been warned to avoid and for failing to avoid the accident. The club was held 50 per cent to blame in respect of unsatisfactory 'drop zone' control.
The judgment leaves little doubt that - unless successfully challenged - whether such an action is brought in relation to damage or injury, the individual sports person owes a duty of care to others regardless of their degree of proficiency. The case is the first of its kind and as such is an important authority not only in the field of claims based on parachuting accidents, but in the field of sporting liability generally.
John Korzeniwski, a partner with Jarvis Bannister, who specialises in aviation claims handled the claim for the Parachute Club. He has been involved in similar claims in the past and in a wide range of other aviation related litigation but says this case "broke new ground".
He says that because of the lack of directly comparable cases contact sport authorities were widely quoted. But at the end of the day he considered one of the most important authorities used was a judgment from Lord Denning in relation to the duty of care owed by a learner driver who, despite his inexperience, was held to be negligent. The latest ruling is seen as backing Lord Denning's decision and reinforcing the view taken by Korzeniwski at the outset, that a duty of care either exists or does not and that there are no in-betweens.
Mr Justice Alliott's approach appears to emphasise the principle that the courts will not limit the duty of care imposed on someone who has caused an accident, merely on the basis of their inexperience.
Counsel for the parachute club was Graham Dunning. Pond's executors were represented by Anthony Baker QC and Stephen Oliver Jones instructed by Paris & Co. A possible appeal was being considered by the executors.