Striking a Balance

 

A recent High Court decision suggest that the courts are willing to balance the potential risk of an activity against the loss of benefit and enjoyment that would result if the activity in question were to be somehow curtailed in the interests of health and safety.

 

The Claimant had an accident whilst participating in a health and fun day event at an RAF base. One of the games, “the pool game”, was essentially a relay race. The game involved team members running up to an inflatable pool, which was set up on a level and grassed playing field, getting in and grabbing a piece of plastic fruit floating in or under shallow water and carrying it out of the pool before the next team member would do the same thing. The Claimant, a senior aircraftman in the RAF, had ran to the side of the pool and launched himself over it in a continuous motion head first with his arms stretched out ahead of him. He hit his head on the bottom of the pool and broke his neck, fracturing his mid-cervical spine in three places. The Claimant was rendered a tetraplegic and was confined to a wheelchair. 

 

The Claimant issued proceedings against Corporate Leisure (UK) Ltd (the First Defendant), who owned the pool and had been hired to run the health and fun day, the Ministry of Defence (the Second Defendant), who was the Claimant’s then employer, and a company who represented the First Defendant’s public liability insurer’s interests (the Third Defendant). It was alleged that the First Defendant and the Second Defendant were in breach of their duty to take reasonable care to ensure that he was safe when taking part in the pool game. The Claimant claimed that it was reasonably foreseeable that the competitors would adopt this method of entry and that an injury would result. 

 

The First and Second Defendant’s argued that the pool game was reasonably safe and stated that all sporting activities involved some element of risk. The Defendants’ expert evidence suggested that, in order to decide whether the pool game was reasonably safe, the risk of serious injury had to be weighed against the benefits of the activity and an appropriate trade-off then had to be made. The expert concluded that the Claimant had been extremely unlucky to have suffered the injury he had. He stated that the probability of such an injury was too remote to warrant a ban on head first entry, as this would have reduced the game to a boring and pointless activity. 

 

The Court found that the risk of serious injury posed by the pool was very small and that the very existence of such a small risk of serious injury did not mean that the Defendant’s were in breach of their common law duty of care towards the Claimant. The Court remarked that enjoyable competitive activities were an important and beneficial part of the lives of the people who were fit enough to participate in them, especially fit service personnel. The Court acknowledged that such activities were almost never risk free and stated that a balance had to be struck between the level of risk involved and the benefits of the activity to the participants and society in general. The Court found that neither the First Defendant or the Second Defendant were obligated to neuter the game of much of its enjoyable challenge by prohibiting head first entry. The Claimant’s claim for damages therefore failed.

 

 

Provided injuries have not been sustained as a result of a fundamental breach of health and safety requirements, Insurers can rest assured that operators of potentially hazardous competitive activities, which involve some degree of risk, will not necessarily be fixed with liability simply because an innocent party has been injured. The Courts seem to be willing to accept that accidents will happen and that they will not necessarily look to assign blame for blame’s sake. The Court’s will not necessary make a finding of liability, provided Defendants can show that it is not possible to remove or guard against a small inherent risk without removing the benefit, enjoyment or challenge of a competitive activity. It is vital that Defendants assess the potential risks of an activity and consider the measures by which such risks could be minimised before deciding whether such precautions would unduly cumbersome and detrimental to the benefit and enjoyment of the activity in question.

 

Lisa Sheriston

Associate

Public Sector Unit