Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 47
There was an immediate attraction in the argument
at a general level. Horseplay close to an open stairwell
may plainly create a risk of serious injury. However,
contributory negligence is not determined at a level
of generality. It depends upon the facts established
in relation to the particular claimant.
the Ministry’s own inadequate risk assessments had
failed to identify it.
Sixthly, the landing was relatively extensive and there
were no su昀케ciently precise 昀椀ndings about where
the interaction began or the parties’ exact position
before the claimant went over the balustrade.
Several matters were important.
First, the claimant’s evidence could not safely be
given substantial weight where the judge had found
him unreliable as to signi昀椀cant events.
The burden of proving contributory negligence
rested upon the Ministry. The Court did not have
su昀케cient con昀椀dence in the 昀椀ne detail of the incident
to reverse the trial judge and make a deduction.
Secondly, the Ministry’s characterisation of the
conduct did not sit comfortably with the judge’s
昀椀ndings. The interaction had been re-instigated by
Graham. There was no serious intent to 昀椀ght. The
fall was accidental, not malicious.
The result should not be read as establishing
that horseplay near stairs can never amount to
contributory negligence. It plainly can. The decision
is instead a reminder that apportionment must be
proved rather than assumed.
Thirdly, the claimant’s use of the headlock was
consistent with his training in de-escalation.
General disapproval of the claimant’s conduct is not
a substitute for evidence and 昀椀ndings addressing:
Fourthly, there was no precise 昀椀nding about the
duration of the interaction. The available evidence
suggested that the relevant sequence may have been
swift and short.
1.
what the claimant actually did;
2.
what danger he knew or ought reasonably to
have appreciated;
3.
whether he had a meaningful opportunity to
avoid or disengage from the risk;
4.
how long the conduct continued;
Fifthly, the Court did not consider that the claimant
should be criticised for failing to appreciate the
unusual danger created by the low balustrade when
Mr Mark Hinnells
Fiduciary Duty – challenges as to whether Trustees
or Directors have met their Fiduciary Duty in
considering ESG, environment or climate change in
investment decisions and risk management. Mark
has a particular interest in pensions and other funds
in multiple jurisdictions.
Climate Change Expert
PhD MSc MA BA
Dr Mark Hinnells is an Energy and Climate
Change Expert, he has over 33 years
academic and consulting experience in
energy policy, energy strategy, project
development and climate finance, and
uses this to undertake expert witness
instructions to aid arbitration, litigation, or
public inquiry.
His expertise covers:
Planning law – where the impact of a planning application on
UK climate change targets may be material. Such proposals
include airports, roads, oil and gas and power generation
proposals. Mark has particular experience with appeals and
public inquiries at airports acting both for airports and Local
Planning Authorities.
Greenwashing – assembling a case against a claim,
or defending the accuracy of claims made by,
financial institutions retailers or producers.
Challenges to Government policy – including under
the Climate Change Act, carbon budgets, policy
impact assessments, efficacy, proportionality, cost
etc
Human rights and climate change – including
where rights are claimed to have been infringed
through lack of appropriate action.
For instructions involving several different
environmental impacts he works closely with Ricardo
Energy and Environment and others.
Email: mark.hinnells@susenco.com | Telephone: 01865 600161 | Website: www.susenco.com
EXPERT WITNESS JOURNAL
45
AUGUST 2026
