PI Brief Update

Not a Soft Touch: Walker v Mersey Care NHS Foundation [2024] EWHC 119 (KB) - Amy Lanham Coles, Temple Garden Chambers

23/02/24. This claim was brought following an accident that occurred when the Claimant, an employee of the Defendant NHS Foundation, was asked to participate in a game described as “soft touch” football at a mental health unit. The Claimant sustained an injury to the face when the ball was kicked (allegedly hard and above chest height) by a fellow employee, Mr Callaghan. The case explores issues arising where a party seeks a late amendment to their pleaded case to align with their own witness evidence.

The Issue

The Particulars of Claim set out at paragraphs 3-8 that the Claimant had been asked by his supervisor to play “soft touch football”. The Particulars noted: “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.” These rules were said to have been reiterated before the game commenced.

The Defence put the Claimant to proof in respect of paragraphs 3-8 but accepted that “residents did participate in "soft touch" football and that on 1 August 2018 the claimant was participating in a game”. The Defence noted that all service users/residents involved in playing soft touch football had been risk assessed; “there are no risks identified, nor any concerns regarding participation in soft touch football”; and “the simple fact the claimant sustained injury blocking the football, does not mean his colleague failed to follow the rules of soft football”. However, the Defendant’s key witness, Mr Callaghan challenged the use of the term “soft touch” football in his witness statement well in advance of the trial, implying this was effectively just a five aside game of ordinary football.

The Defendant sought to amend the Defence on the morning of trial to clarify that the Defendant did not recognise “the term 'soft touch football'” nor were they “aware of any set rule or guidance for that game”. On the day of trial, the Recorder allowed the amendment; refused an application for an adjournment; heard and then dismissed the claim. Crucially, the Recorder noted he “did not find Mr Walker's description of soft touch football, something materially different to a friendly game of five-a-side as convincing”. The Claimant challenged both the dismissal and the Recorder’s case management decision to allow the late amendment.

The Claimant argued such a late amendment ought not to be allowed, firstly on procedural grounds. Further, by this amendment the Defendant sought to resile from an admitted fact; there was therefore prejudice to the Claimant. The Defendant contended that by putting the Claimant to proof in respect of soft touch football, any definition of the same had not been admitted.

Judgment

The court noted the high threshold for disturbing case management decisions (paras 19-21) and findings of fact on appeal (para 22).

The court rejected the suggestion that...

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