From the courts: what you need to know

Case law: A fun day out?

A High Court hearing in January (Uren v Corporate Leisure UK Ltd, Ministry of Defence and others) considered employer liability after an employee sustained serious injuries in an ‘It’s a knockout’-style event organised as part of a fun day by the MoD. The case illustrates how claimants face an uphill struggle to succeed in bringing claims where the cause of the accident is part of the inherent risk in the activity itself.

The case

In July 2005, the MoD organised a fun day consisting of a number of ‘It’s a knockout’-style games in which the claimant voluntarily took part, albeit while on duty. One such game was a relay race, comprising a one metre-high cylindrical inflatable pool filled with 18 inches of water which the participants had to enter to retrieve objects. The pool was supplied by the first defendant, Corporate Leisure UK Ltd, which sent three employees to supervise the running of the event as well as the setting up and positioning of the equipment. The claimant ran up to the side of the pool and launched himself into it headfirst with arms outstretched in front of him. His head hit the bottom of the pool, breaking his neck and fracturing his spine. As a result of the incident, the claimant is tetraplegic and confined to a wheelchair.

Relying on expert evidence, the claimant argued that diving headfirst into the pool was a foreseeable and major risk which should have been prohibited. The claimant also argued that HSE guidance for swimming pools applied in this case and contended that this pool, which was designed for holding inflated balls, was unsuitable. It wasn’t in dispute that both the first and second defendants each owed the claimant a common law duty to take reasonable care to ensure that he was safe in taking part in the game. The question to be decided at the trial was whether either or both were in breach of this duty.

The decision

The matter was heard in the Royal Courts of Justice in November 2009 by Judge HHJ Field who stressed that he found the claimant to be an honest and straightforward witness for whom he had the greatest sympathy. In entering the pool headfirst with arms outstretched, he didn’t consider that the claimant was attempting a manoeuvre which he ought to have appreciated was dangerous.

The judge was heavily critical of the risk assessments carried out by both Corporate Leisure and the MoD. In the judge’s opinion, Corporate Leisure’s assessment should have taken into account that contestants might enter the pool headfirst, but failed to do so. The judge was particularly critical of the MoD, expressing surprise that the risk assessments hadn’t been carried out by those responsible for health and safety at the base, but had been compiled without any knowledge of how the game was to be played or the dimensions of the pool. In effect, the MoD’s stance had simply been to rely on the first defendant’s assessments. In failing to fulfil its non-delegable duty of care to prepare an adequate risk assessment, which involved awareness of how the game was to be played and how entrants might enter into the pool, the court found that the MoD’s risk assessments were “fatally flawed”.

However, the judge reaffirmed that the issue wasn’t whether adequate risk assessments had been carried out, but whether the defendants had taken reasonable measures to ensure that the game was safe. In this regard, it was accepted that the duties at common law and under the relevant health and safety regulations were similar; being a duty to ensure that reasonable care was taken to ensure the claimant was safe in participating.

The judge was heavily influenced by Corporate Leisure’s expert witness in preference to the claimant’s expert who, in the judge’s opinion, had wrongly likened the circumstances to a swimming pool, and applied pool regulations to the activity.

Relying on the findings of Corporate Leisure’s expert witness, the judge found that the risk of serious injury posed by the pool game was very small, particularly given that contestants were told to take care on entering the pool and it was obvious that they shouldn’t attempt to dive in, but should in fact slide over the side of the pool, which would slow down the pace of entry and enable participants to control the impact with the bottom of the pool.

While observers of the game had given evidence indicating that they’d been concerned that an injury could result when the game was being played, the judge considered that the views of spectators were of “very little relevance”.

In considering the issue of whether the existence of a very small risk of serious injury meant that the defendants were in breach of the common law duty of care they owed to the claimant, the judge was conscious of the balance that had to be struck between the level of risk involved and the benefits of the activity for the participants and society generally.

Judge Field said: “Enjoyable competitive activities are an important and beneficial part of the life of the very many people who are fit enough to participate in them. Such activities are almost never risk free.” In his opinion, the pool game was an enjoyable one – in part because of the physical challenge it posed to contestants, which included a small risk of serious injury.

The judge didn’t believe that either Corporate Leisure or the MoD were obliged to “neuter” the game from much of its enjoyable challenge by prohibiting headfirst entry. Consequently, it was held that the existence of a very small risk of serious injury didn’t render the defendants in breach of their common law duty and the claimant’s claim failed.

Comment

This is an important first instance High Court decision showing, once again, that the lower courts are agreeable to following the leads taken by the House of Lords and Court of Appeal in cases such as Tomlinson v Congleton Borough Council and Poppleton v Trustees of the Portsmouth Youth Activity Committee in respect of leisure activity cases.

While not directly decided under the 1957 Occupiers Liability Act the decision, made under common law on a near identical test, is a highly useful authority for defendants who operate popular leisure activities, which by their very nature can never be risk-free and in which participants willingly participate.

What’s perhaps more surprising here is that the court was prepared to favour the defendant in respect of this beneficial social activity, notwithstanding the tragic circumstances and the heavy criticism of the defendants in relation to their preparation and assessment of the event.

Operators of such activities must be careful to avoid the impression that such leisure-related accident claims will never succeed. It remains imperative that operators take adequate precautions for the safety of participants, thoroughly consider the risks involved and have reasonable control measures in place. However, the comments of Judge Field show that claimants face an uphill struggle to succeed in bringing such leisure-related claims where the cause of the accident is part of the inherent risk in the activity itself.

Our thanks to Weightmans LLP for its help in writing this article.