Craig Connal: Played out over a decade, has justice been best served?

By CRAIG CONNAL
Published on 16/07/2012 00:00

THIS will be a memorable year for tennis fans. Andy Murray’s performances at Wimbledon, and impending assault on the Olympic title, will doubtless live long in the memory.

Away from Wimbledon’s manicured lawns, however, a very different tennis battle has been played out in the Scottish Court of Session.

A ruling last month has shone light on a protracted 
legal dispute following an incident at the David Lloyd leisure club in Renfrew in 2001. It appears to have finally reached its conclusion after more than ten years.

The dispute arose following a serious arm injury sustained by Mr Terence Connelly during a game of tennis at the club. According to the court papers the injury occurred after 
his footwear stuck on the 
tennis court’s carpet surface.

Proceedings rumbled on very slowly. The key arguments were whether the operator of the health club knew or ought to have known that there was a foreseeable risk of injury to any tennis player wearing particular footwear on a carpeted tennis court.

Mr Connelly argued that signage changed in the wake of the incident showed the club knew of the problem.

A host of leading lights in Scottish tennis gave evidence, including Peter Gordon, development officer with Tennis Scotland, John Kent, principal of Scotland’s National Sports Centre, and tennis pro and coach Stuart Clark.

In a decision delivered in 2009, a sheriff decided against Mr Connelly – a judgment he tried to overturn in appeal proceedings, first to the Sheriff Principal and then to the Court of Session.

The Court of Appeal found that “the basis of the sheriff’s decision was that the appellant had failed to establish that before the accident, the risk that such an accident could result from the wearing of rib-soled footwear was known to those involved in operating commercial leisure centres with carpeted tennis courts … On the evidence, however, the sheriff had no basis for a finding in fact that the risk that eventuated in the appellant’s case was known or ought to have been known before the incident.”

The sheriff had been entitled in law and on the evidence to reach his decision.

The court pointed out that Mr Connelly’s decision to eschew legal representation 
and present his arguments himself at proof and appeal 
had been “unfortunate”, 
saying proceedings had 
become “arduous”. Further, it meant evidence which he had since uncovered and which might have helped him was 
not admissible.

According to Lord Gill: “In my opinion, the appellant’s lack of legal representation has been unfortunate for at least two reasons. The first is that it appears that certain of his witnesses whom he expected to be favourable to his case gave evidence favourable to the respondent … The second reason is that the appellant has placed before us certain evidence that he has found in the course of researches that he has carried out since the proof. This evidence relates to state of knowledge in the leisure industry of risks involved in the use of rib-soled footwear on a carpeted playing surface. Having read the evidence and having heard the appellant’s comments upon it, I have the impression that if this line of evidence had been followed up before the proof, it might perhaps have had a significant bearing on the crucial issue.”

And so, this one went game, set and match to the defendants. It is disappointing to see that a case of this sort has taken in excess of a decade to resolve. By eschewing proper legal advice the claimant not only jeopardised his own chances of successes, but also placed a significant drain on the time and resources of the operators of the leisure centre and the courts. It is not known what the costs of the case will be to Mr Connelly. Reform, surely, cannot be far away.

• Craig Connal QC is a partner at international law firm Pinsent Masons