Andrew Melvin

The Facts

On 22 May 1993 Andrew was with his 6 year old son at the All Saints Recreational Ground Wimbledon. Andrew had decided to do what dads sometimes do – show his 6 year old how a BMX should be ridden. The recreational ground contained an area of rough ground, a mound, which was often used by the young bikers. If was on this mount that Andrew encountered a pothole. He was flung over the handlebars and landed on his neck. This caused his paralysis at C2/3.

The Difficulties

The mound contained a well-worn path used by the bikers. Andrew had strayed from this path into a long grass bank. At the time of the accident Andrew was 31 years old and 6 ft tall. The BX bike was for use by a 6-8 year old. Cycling was prohibited in the recreation ground. Andrew was represented by another firm of solicitors prior to instructing my firm in 1998. By the time we were instructed the mound, where Andrew had his accident, had been flattened and re-landscaped.

Overcoming the Difficulties

The case presented the classic problem of not being instructed soon enough after the accident. Witness statements from the Council employees and park users and documentation were vital. When gathered, the statements and documents revealed that the rough ground was in all probability the remains of an old site which contained playground equipment (possibly a fort) and that the holes or potholes once provided the foundations for the equipment. Documents from the Council revealed that the recreation ground was inspected on a regular basis but apparently no the mound itself. We were able to argue successfully that the inspection should have included the mound as it was used as an informal play area and had it been inspected the holes would have been discovered and steps would have been taken to make the area safe. Although bye-laws prohibited cycling in the park, the Council could not establish that notices were erected at the time of the accident and in any event it was known that cycling took place and the Council had taken no action to stop it. As in Simon´s case (Case Study 2) contributory negligence ie the extent to which Andrew contributed to the accident, was always going to be an issue if primary liability could be established.

The Outcome

The case proceeded on a liability only basis. The trial on liability was set for March 1999. In the autumn of 1998, preliminary discussions with the Defendants took place. It was agreed that further discussion would await production of an engineer´s report and further documents from the Council. Discussions re-commenced in February 1999 and after intensive negotiations terms were compromised on the basis that primary liability be conceded subject to a finding of 50% contributory negligence by Andrew. The fact that Andrew was a 31 year old male, 6 ft tall, riding his son´s BMX bike in a children´s recreation area made this finding inevitable.

The amount of damages Andrew will be entitled to will be decided on 17 January 2000 or earlier by agreement of the parties. In excess of £3 million is currently being claimed on full liability. Prior to Stewarts being instructed, the Defendants had made an offer to settle this case on the basis of a without prejudice payment of £25,000.