Ex tempore judgments in a spin?

Ruth Hill, Lecturer, NLS

Photo credit – www.chessington.com

The recent Court of Appeal judgment in the case of Merlin Entertainments PLC v Mrs Emilia Idziak [2023] EWHC 1597 (KB) serves as a reminder to judges of the need for adequate reasoning in ‘ex tempore’ judgments. This is a judgment which is made ‘at the time’ and given by the judge orally following conclusion of the hearing.

The appeal relates to a successful personal injury claim brought by Mrs Idziak (“the claimant / Idziak”) against Merlin Entertainments PLC, a company which operate various theme parks including Chessington World of Adventures.

Idziak visited Chessington on 24 August 2016 and later brought a claim in negligence and breach of contract for an orthopaedic injury sustained after riding the Dragon’s Fury spinning rollercoaster (pictured). She argued that the ride travelled at excessive speed before suddenly halting, causing a deceleration injury. Idziak alleged that Chessington knew of overspeed faults on the ride earlier that day but allowed the ride to remain open and there was further overspeed when she rode at 14:20.

It is clear when reading the Court of Appeal judgment that an “air line blow” issue was, according to the defendant’s evidence, the primary cause of Idziak’s rollercoaster car stopping and that this was separate to any car overspeed. However, the focus of the claimant’s evidence related to the claimant’s car travelling faster and not that Merlin were negligent in relation to the air line to the ride’s brakes.

Evidence was heard at the initial 2-day trial on 13 June 2022 and following closing submissions on the morning of the second day the judge immediately gave her decision by way of an ex tempore judgment, holding Merlin at fault and awarding damages for the claimant’s injuries in the sum of £18,000.

Merlin appealed this decision arguing that the at first instance judge did not fully appreciate and engage with central arguments at the heart of breach of duty and causation, contending that the first instance judge did not give adequate reasons as to how the claimant had succeeded in proving her case.

During trial Idziak’s lawyers placed emphasis on two “car overspeed” recordings earlier on the same day that she rode the rollercoaster, together with a further overspeed at 14:20 which related to her own ride. However, evidence from a Chessington ride technician at trial explained that there were no genuine overspeed issues and, furthermore, that any so-called “overspeed” had not occurred in relation to Idziak’s car in any event. This was seemingly accepted by the judge after hearing Merlin’s witness evidence.

With respect to whether there was a ‘genuine overspeed issue’ the ride technician noted that the sensors, located just off the track, were placed too close together. Due to this, the computer picked up that the cars were travelling between those points too quickly and the ride’s computer wrongly detected a ‘fault’ i.e. it thought the cars were travelling too fast and therefore shut the ride down with its braking system.

After engineers had investigated the “overspeed” issue and identified the cause, the ride’s sensors were placed back in their correct positions and the fault had not occurred again. The evidence before the court at trial was therefore that there were no genuine car overspeed faults on the day of Idziak’s alleged injury.

The technician also noted that such “overspeed” fault had occurred elsewhere on the ride and not in relation to the claimant’s car. However, Idziak’s car had in turn stopped due to a safety feature of the ride; an emergency braking system designed to stop the cars crashing into others on the track ahead.

Merlin’s evidence was that in the event of a car overspeed, the car would travel 0.5 to 1 seconds quicker than usual and therefore any overspeed would be minimal. However, to reiterate, the sensors had incorrectly picked up an overspeed ‘fault’ which did not relate to the claimant’s car.

In their appeal, Merlin argued that accepting the ride technician’s evidence ought to have led the judge to find that there was no overspeed. However, there was failure in the first judgment to explain how, despite seemingly accepting this, she had found for Idziak. The judge had also failed to appreciate the importance of the “air line blow” issue to breach of duty of duty and causation. If the cause of the claimant’s car stopping was due to this, rather than overspeed, then Chessington were not “on notice” of anything posing a risk to those riding the rollercoaster as there was no link between the air line blow and earlier overspeed recordings. Merlin’s representative’s argument was that this was not a dangerous situation – the rollercoaster cars were not speeding out of control nor were the brakes faulty. What had happened was associated with the ride’s fail-safe of stopping the cars.

In a negligence claim the claimant must prove, on a balance of probabilities (i.e. more likely than not), that the defendant’s breach of duty caused their injury or loss (i.e. ‘causation’). In this case Idziak voluntarily subjected her body to increased forces by riding Dragon’s Fury.

Merlin’s representative stated as follows: “If somebody with a bad back goes on a ride, and is exposed to forces, it may have caused the injury; but that was because the person went on the ride. It had nothing to do with the de minimis [trivial] amount by which it oversped, if indeed it did overspeed. Accordingly, any overspeed was not the cause of any injury”.

Idziak’s medical history included back pain, however her evidence was that she had been on similar rides without issue. Medical evidence submitted by Idziak was on the basis that the overspeed and deceleration were, according to her, significant. Both Idziak and her friend gave evidence that the ride was “frighteningly fast and stopped abruptly”.

The ex tempore judgment did not consider how much faster Idziak’s car travelled, nor whether this was possible given the ride’s safety shut down system. This was argued to feed directly into causation; there was no explanation as to why minimal overspeed (if any) caused Idziak’s injury but the speed and movement of the ride in its normal operation would not have done so in any event. Further, the “air line blow” issue was glossed over and not analysed.

When Mr Justice Jacobs examined the appeal, he considered case law regarding the need for adequate reasons in a judgment. LJ Henry stated in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 that the rationale behind the duty of a judge giving reasons has two principal aspects:

i) “Fairness surely requires that the parties, especially the losing party, should be left in no doubt why they have won or lost”; and

ii) “A requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on evidence than if it is not”.

In allowing Merlin’s appeal and ordering retrial of the case, Mr Justice Jacobs stated that “the recorder [judge] failed adequately to engage with the arguments which had been advanced on Merlin’s behalf… it is not possible to discern the basis on which she rejected the key aspects of Merlin’s case. The result is that the judgment is not coherent and does not adequately explain why Merlin’s case failed and the claimant’s case succeeded”.

Whilst acknowledging that there is nothing wrong in principle with judges giving ex tempore judgments, bearing in mind the evidence given was of a technical nature and arguments on liability within closing submissions were relatively complex, giving such a judgment immediately and without any opportunity to reflect was, in his view, “challenging and ambitious”.

It is perhaps unlikely that a judgment of this nature would spur any significant decrease in the number of ex tempore judgments given in the county court. As recognised by the Court of Appeal, “the system could not properly function if every decision was reserved” i.e. handed down by way of a written judgment at a later point. However, depending on the facts of the case and evidence heard, and particularly where any new points on liability and/or quantum are raised in closing submissions, there would be benefit in allowing time to reflect ahead of giving judgment.

The outcome of a claim of this nature, albeit of relatively low value, has potentially wide-reaching implications for Merlin as a global family entertainment brand. Reputational damage and the risk of opening the floodgates to similar claims are likely to have been key factors for the appeal. An ex tempore judgment without adequate reason was undoubtedly unsatisfactory for Merlin, who were left unclear as to how they had breached their duty of care owed to Idziak in circumstances whereby their evidence was that the cars had not oversped and nothing had occurred other than implementation of the ride’s emergency braking system.

Related Articles

Merlin Entertainments v Idziak https://www.bailii.org/ew/cases/EWHC/KB/2023/1597.html