Photo credit: Paul Kirkwood
A British holidaymaker who ruptured his knee ligament in a terrifying skiing accident, has been awarded just under £16,000 in damages by a judge, marking an end to a 5-year nightmare that “never should have gone to trial.”
Paul Kirkwood, from Scotland, was skiing with his wife in Flaine, France in March 2016, when he was badly injured. He was ascending the mountain on a poma tow lift when he saw a couple ahead of him, blocking the track. They failed to move out of the way when he called out, and when Paul tried to manoeuvre around them, his ski caught in the bank at the side of the track. Conscious of his precarious position on the track, Paul tried to free his ski and, in doing so, suffered an agonising rupture to his anterior cruciate ligament– which is one of the four main banks of tissue that keeps the bones of a knee joint together.
Recalling the series of events, Paul Kirkwood said today:
“I was shocked and surprised to find two people standing together blocking the track ahead of me who were seemingly oblivious to the danger they were presenting. When you’re going up a ski tow, it’s the last thing you’d ever expect and it gave me a terrible fright. They were blocking most of the central tow which was very built up on either side with banks of snow. I had no option but to try and ski around them but in doing so got my ski stuck in the snowbank and fell. I had to be stretchered off the mountain and, when I got to hospital it became clear how bad the tear was and what I had to recover from. The impact of my injuries has taken a long time to get over.”
Paul was eventually flown back home to Edinburgh, where he underwent reconstructive surgery, followed by over a year of rehabilitation therapy. Before his injury, Paul was very fit and active, enjoying many outdoor activities like skiing, surfing, hillwalking, and mountain climbing.
Paul contacted solicitors at Hugh James to support him with a claim for personal injuries and financial losses. Senior Associate, Rebecca Gilmore, led the case and instructed Alex Carington of 12 King’s Bench Walk as Counsel throughout and at trial.
Throughout the duration of the claim, Paul made several offers, including an offer to settle at £17,000 in the weeks approaching trial. But the Defendants either rejected or did not respond to any offer and made no settlement offers themselves. They also rejected an offer of mediation.
The trial took place in Birmingham on 18 and 19 March 2021 and was a complex process as the claim was governed by French law. When it came to trial, the court had the assistance of oral evidence from French law experts instructed on behalf of the Claimant and Defendant, who gave evidence via video link.
Paul’s case centred on the claim that the Defendants failed to clear the poma track quickly, which was in breach of the provisions of the French Civil Code. The French experts agreed that there was an obligation on a skier who has fallen but was not otherwise injured to leave the poma track promptly.
While there was a substantial dispute, over the facts, between the parties, Her Honour Judge Ingram, accepted the submissions of Paul’s Counsel that, absent any other explanation, a plausible reason why the Defendants were there was because they were going to attempt to ski down the poma track which was inconsistent with skiing rules (FIS) and contrary to their duty under French law.
The Defendants argued they were clearly visible and the Claimant ought to have got off the lift in anticipation of them blocking the track. The court did not accept this but instead accepted the Claimant’s evidence that you never leave a poma tow lift unless you fall, or it is an emergency. You do not leave voluntarily. The judge found inconsistencies in the evidence given by the First and Second Defendant, but no criticism was levelled at Paul over his decision to stay on the poma tow.
Judgment, in favour of Mr Kirkwood, was handed down via MS Teams on 19 April 2021. Reacting to the verdict, Paul said:
“I’ve been a Solicitor myself since 1993 and I have a duty to be open and honest with the court. When Her Honour Judge Ingram said that my evidence had been accepted as truth it was a huge relief. If the Defendants had taken the offer of mediation and settlement, it would never have come to trial. I am so grateful to Rebecca Gilmore and the whole team at Hugh James. The way they dealt with my case was exemplary. Rebecca really stuck to the detail and was very thorough throughout. She spent a lot of time with me and, at every stage, she was nothing other than 150 per cent engaged.”
Senior Associate at Hugh James, Rebecca Gilmore, said today:
“I am so pleased to have assisted my client in achieving justice in this long fought out case. Paul is an experienced solicitor and now an accredited Commercial Mediator and I really appreciated how much his reputation was on the line. He was always clear and consistent about what happened that day and we could not understand why this case was fought all the way to trial based on the evidence we had seen from the Defendants. Being cross examined is never pleasant and it caused my client a lot of worry and stress even though his credibility shone through.
"From a practice level, this case has reminded me of the importance of knowing your client inside out and ensuring every detail possible is covered in witness evidence. It is always drilled home in litigation to treat every case as if it may end at trial and this case has certainly reminded me how true that is. Preparing for a trial held during the pandemic was an added challenge. Credit must also go to Alex Carington who provided quality advice and represented Paul impeccably at trial.”
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