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Once bitten, the burden of proof lies with the claimant

The relentless slog of training as a pupil barrister with a busy construction pupil master had its occasional moments of levity.

My pupil master, who now sits as a judge in the Technology and Construction Court, enjoyed a surreal spin on life's events and was particularly taken by the declaration of a well-known cartoonist in the 1960s, that he would retire when he read a headline that was more preposterous than one of his own.The crunch came, apparently, when the press reported 'Britain wins Cod War'. Later, and with this in mind, while working as a lowly member of a sizeable legal team, in the bowels of the offices of a firm of city solicitors, photocopying and preparing trial bundles for a lengthy appeal hearing, I was able to provide some much needed light relief with the discovery of a local newspaper sporting the headline 'Man finds eyeball in crisps'.

Against this background, another headline caught my eye recently while browsing the computerised digest of current law reports. Sifting through the cases on VAT and unfair dismissal for authorities with a construction bent, I spotted the headnote 'Professional golfer bitten by dog'. True, there was no construction angle here, but the decision of the Appeal Court in the case of Raitt v Lunn (judgment 22.10.03), hot off the press, proved to be worth more than its headline value.

The claimant professional golfer was bitten by a dog owned by the defendant. The little finger of the claimant's left hand was bitten through and severely damaged.Although the tendons and nerves remained intact, the finger was left an eighth of an inch shorter as a result of the attack. The claimant's claim included general damages for the pain, suffering and distress caused by the injury and damages for loss of earnings. The defendant accepted liability for the injury but disputed the value of the claim, particularly, and perhaps inevitably, the claim for lost earnings.

The case demonstrated one of the basic principles of the law of damages: namely that the object is to put the claimant, so far as it is possible to do so in monetary terms, in the position they would have been had they not been wronged.Thus what might have been a fairly unpleasant experience resulting in a relatively minor injury to most of us, becomes a potential catastrophe for someone who relies upon the finely honed skills of a golfer for their living.

In order to prove the loss of future earnings claim, however, the claimant had to demonstrate that it was more likely than not, that is, on the balance of probabilities, that the injury had affected their game. In order to do so, the trial judge looked for some evidence, either from an independent expert or from a fellow professional who knew the claimant's game, as to the claimant's performance, both before and after the accident.

The claimant was unable to provide this. Instead, an expert giving evidence on behalf of the defendant dog-owner told the court that there was no pattern in the claimant's subsequent career to show that they had not reached the standard they might reasonably have been expected to have achieved but for the injury. When weighing both parties' evidence on the central question, as to whether the attack had had any significant adverse effect on the claimant's golf, the judge found that the claimant had simply not presented sufficient evidence to tip the scales in their favour. The burden of proving a long-term adverse effect lay with the claimant, and they had failed to discharge it. Accordingly, the judge awarded the claimant total damages of only £6,000, including £2,000 for the trauma of the injury.

The claimant appealed on the grounds that the judge had misunderstood both the issues and the evidence, but the Court of Appeal found that the judge's conclusions could not be faulted.

This unfortunate case has obvious potential for tabloid editors. Whatever headline they may conjure, whether it is 'Dog did not cause bad golf ' or 'Once bitten', you can rest assured that it would not be 'Claimant fails to discharge burden of proof '.

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