A quick agreed settlement is usually the best option for both parties

The law is not always what we see on television with spellbinding facts, drama in the court room and lawyers cross examining witnesses. It is normally regulatory applications, technical notices and lots and lots of documents. But there are occasions where really interesting matters come along and insurance liability claims are often such occasions. The facts that present themselves from such matters create big legal debates and discussions and often rests on the ability of the lawyer to be able to cross examine well and investigate every aspect of the case.

I have one such matter at the moment where we are currently preparing for trial by consulting with the witnesses carefully and instructing experts to provide conservative reports so we can make an informed decision to take the matter to trial (which is now very costly and one must have a strong case to consider this). The other option is to put together an offer which is enough of a “carrot” for the Plaintiff to consider but also needs to be more commercially practical than going to trial. The facts are the following:

A grandmother and two grandchildren visited a small resort designed to accommodate day visitors as well as short break guests. There are large ornamental elephants situated in the picnic area. The two children climbed on one of the elephants and were posing for photographs taken by the grandmother. The grandmother in fact encouraged the children to climb on to get better photographs. The elephant collapsed and the children fell to the ground with the large ornament collapsing on top of the children. The grandmother reacted quickly and managed to push one child out of harms way but was struck by the side of the elephant. The other child was not so lucky and she was struck on the leg by the falling ornament and was injured severely. The grandmother’s injuries were less severe.

There was a disclaimer at the entrance to the property advising that the resort did not accept any liability for injuries to anyone making use of the property.

It appeared from the reports that the elephant was made of wood and that the wood was rotting and not properly maintained. This would create an immediate assumption of negligence against the resort. Furthermore the resort had no security to make sure visitors did not climb on the ornaments and it would be difficult to convince a court this was the first time that children had climbed on any of the ornaments. We had to investigate whether the grandmother had been negligent and if we could apportion any of the injuries suffered by the child against her as a result of this negligence. Another consideration was if the grandmother would be entitled to claim if she was not found to be negligent or would the disclaimer be effective against her, even if it could not be used against the child and it is reasonable for patrons to climb on ornaments without express consent.

One can see there is legal and factual complexity here as well the human and commercial element of protecting the client’s commercial well- being. Given all the uncertainties in this matter outside of the one certainty that a long drawn out trial would be extremely costly, an agreed settlement would be the best option for both parties. The disclaimer argument in our view would go against us given that courts are tending to over- rule disclaimers when it comes to personal injury and the activity is not an inherently dangerous one (such as quad biking or parachuting) and the grandmother’s behavior would be unlikely to have been fully responsible for the injuries. We would have to prove that the reasonable person in her position would not have acted as she did. There were no eye witnesses available to testify on behalf of the resort and the only evidence would come from the grandmother and children themselves. There will be a strong need for some clever negotiating here but in cases like these an early settlement discount carries some leverage but the real advantage for both sides would be to avoid a trial where the majority of the legal costs sit.

by Danny Joffe : Chairman of Klapton’s Ethics, Nominations & Remuneration Committee