Wilson v GP Haden trading as Clyne Farm Centre [15.02.13]

Defendant liable for fall causing serious injury; instructor should have demonstrated technique to be used on fireman's pole forming part of cross country assault course.

Implications

Claims involving deliberate risk-taking feature heavily in recent case law. The courts are grappling with the need to provide balance in relation to desirable activities in society. Put another way, the issue is the extent to which personal accountability should replace accountability on those bodies charged with engaging in risk based activities.

The case of Wilson can be distilled down to one simple failure on the Defendant's part. The Defendant was to be commended for carrying out thorough risk assessments and providing qualified and suitable instructors. However, when the instructor chose to depart from clear safety provisions contained in the risk assessment without adequate explanation or reason, liability attached.

This case should not be interpreted to mean that whenever a risk assessment is departed from liability will arise. However, where a departure does occur, those responsible must have clear and reasoned arguments in support of their decision.

Through Kennedys' work, most notably in the public sector and for charitable organisations, we have been emphasising the need for clients and those charged with responsibility for risk assessments to be dynamic. This means having the risk assessment in mind, but also ensuring that those charged with responsibility have the necessary training to depart from the risk assessment and respond to changes in circumstances when required. This judgment endorses our approach.

Background

In August 2009 the Claimant, who was a scout leader, accompanied a party of scouts together with a number of other supervising adults on a week's camp at the Clyne Farm Centre. Whilst he was negotiating an obstacle known as the Burma Bridge on the Challenge Valley Course, he fell several feet to the ground, fracturing a vertebra. The Burma Bridge was made up of three elements:

  • An inclined log with footholds and a rope handhold, leading up to a wooden platform in the fork of a tree about eight feet above the ground.
  • A rope bridge slung between the first tree and a second tree about 12 metres away.
  • A fireman's pole to return to ground level. There was also a ladder available for participants who did not want to use the pole.

The Claimant’s accident occurred whilst he was negotiating the fireman's pole.

Decision

The Honourable Mrs Justice Swift found in favour of the Claimant:

  • The combined effect of the Defendant's risk assessment and training notes showed a clear intention that instructors should demonstrate the technique to be adopted on all three elements of the Burma Bridge.
  • A departure from the risk assessment and/or the training notes would not of itself constitute a breach of duty. However, in this case the failure of the instructor, Ms Haines to carry out a demonstration was a breach of her duty of care to the participants. In judging that the technique to be used on the fireman's pole was so "obvious" that it need not be demonstrated, she overlooked the fact that some participants might never have negotiated a fireman's pole before. A demonstration would have taken very little time. It would have enabled Ms Haines to ascertain whether the pole was wet and/or more slippery than usual and to alert participants if that was the case and emphasise the need to grip hard.
  • The Claimant's accident probably happened because he failed to appreciate the importance of wrapping his legs firmly round the fireman’s pole immediately on launching himself from the platform onto the pole. Had Ms Haines given him full instructions it is probable that he would have descended safely.

The Claimant was awarded damages of £167,514 plus interest.