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Occupiers Liability – Successful defence

Clyde & Co have shared the following success story with us.  In a recent claim involving a survival race, the obstacle to a successful outcome for the Claimant was the finding that accidents do happen, and that there was an inherent risk that could not be prevented by the organiser. https://bit.ly/3zu7PTq

Harrison v Intuitive Business Consultants Ltd & Ors [2021] EWHC 2396 (QB)

The Claimant had submitted that the organiser (as First Defendant) had failed to take reasonable care for her safety after she sustained serious injuries falling on part of an obstacle course at a Bear Grylls Survival race.

It was alleged that the Defendants (the Second Defendant being a subcontractor) had failed to implement intended control measures set out in their risk assessment, including instructing participants to begin the obstacle from a seated position and ensuring an appropriate spread of hay was on the ground to cushion any falls.

The Judge found that instructions were given appropriately, despite the Claimant either not hearing them or failing to follow them. In any event, causation was not established. The Defendants also had a reasonable system in relation to the spread of hay on the ground.

Background

The Claimant voluntarily participated in a Bear Grylls Survival Race. Whilst attempting an elevated monkey ring obstacle (known as ‘the Jungle’) she fell to the ground and sustained serious injuries to her right shoulder and leg. She brought a claim for injury and losses against the event organisers and the subcontractors responsible for the planning and management (‘the Defendants’).

The Claimant brought a claim against the Defendants under s.2 of the Occupiers Liability Act 1957.

Outcome

The Court accepted that there was no duty of care on the Defendants to provide guidance or supervision to participants, but that there was a duty to risk assess. The risk assessment process was followed and the Defendants had put in place a control measure requiring “clear and concise instructions” to be given to participants including a direction to “swing out from a seated position”. Once the need for instruction had been determined, the duty to provide such an instruction had been assumed.

The Claimant had started from a standing position, having stated she did not hear any instructions. She alleged that that this was the cause of her fall.

Taking into account the witness evidence and contemporaneous photographs the Court held that marshals had been trained to provide such instruction and that instructions had been given appropriately. It was not practicable to speak individually to each and every participant, but the marshals gave regular instructions to those about to embark. The Judge found that the Claimant had either not heard the instruction or failed to follow it.

In any event, the Court found that whether the Claimant had started from a seated or standing position made no difference to her fall. By the time she fell, she had been reaching for the second ring.

The use of hay was deemed a reasonable option for providing a suitable landing surface, although the Defendant remained obliged to ensure even-spreading and periodical re-distribution of the hay to avoid bare patches.

No witnesses for the Claimant observed such distribution, however the Judge relied upon the veracity of the Defendants’ witness, a marshal on the Jungle, who submitted that the staff were vigilant in their re-distribution of the hay.

The Claimant’s accident and resultant injuries were not occasioned by any fault of the Defendants and were inherent types of injury associated with obstacle races and risky activities. The Claimant was aware of the risks upon signing up to compete, with such risks being impossible to fully prevent regardless of the amount of care and vigilance demonstrated by the Defendants.

What we can learn

  • We are reminded that there is no duty on an activity provider to provide instruction unless the provider assumes that responsibility. If a suitable and sufficient risk assessment deems that instruction is required, then such responsibility is assumed and the instruction must be given.
  • The Defendants intended that participants would be instructed to start from a seated rather than standing position. The Defendant had no obligation to ensure that, having been given the instruction, that is how the participants proceeded.
  • The Court was satisfied that regular instructions, not involving direct discussions with each participant, met the threshold of reasonableness in all the circumstances of this case.
  • Attention to detail surrounding causation is crucial. Whether the Court found a breach of duty or not, it would have held that such breach had not led to the Claimant’s fall.
  • It is interesting to note that had there been a breach of duty on the part of the Defendants, the Court did state that there would have been no finding of contributory negligence on the part of the Claimant. It was “both legitimate and reasonably safe for the Claimant to set off from a standing position, following the technique of others who went before her.” Similarly, the vast majority of participants had failed to complete the rings section, so the Claimant could bear no fault for failing to complete that section.

    Author: Clyde & Co LLP

Sense & Defensibility – Recent Legal Cases and what you need to know

Our Mutual Manager Sophia Reed presented an update at our member event on some legal cases which provide valuable lessons learned on claims.  A copy of her slides can be viewed here.

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