Claimant appeals against dismissal of claim arising out of “It’s a Knockout” style games; action remitted for retrial.

The claim arose out of a “Health & Fun Day” in 2005 at RAF High Wycombe. This included six “It’s a Knockout” style games. The last of the games was a relay race which involved getting into an inflatable rectangular pool. The pool belonged to Corporate Leisure (UK) Ltd. When it came to Mr Uren’s turn he launched himself over the side of the pool in a continuous movement, head first with his arms outstretched ahead of him. Tragically he hit his head on the bottom of the pool and broke his neck. At first instance, having accepted the expert evidence of Professor Ball that a very small risk of serious injury existed, Field J concluded that, bearing in mind the social benefit of the game, the Defendants were not in breach of their duty of care. The Claimant appealed to the Court of Appeal.

Held

  1. The Defendants were under a duty to participants in the game to ensure that they were not exposed to an unacceptable risk of serious injury whilst taking part in it.
  2. The failure to carry out a proper risk assessment can never be the direct cause of an injury. There will however be some cases where it can be shown that the failure to carry out a proper risk assessment has been indirectly causative of the injury. The Judge should have considered and decided what a suitable and sufficient risk assessment would have concluded.
  3. The Judge’s reliance on the evidence of Professor Ball, in preference to two other experts, was not satisfactory. A fuller and more critical examination of the views of the experts should be carried out.
  4. The case was remitted for retrial by a different High Court judge, with the issue “limited to the question of the degree of risk of serious injury entailed in the game as played and whether that degree of risk was acceptable in the light of the social value of the game.”

Comment

As the Court of Appeal did not overturn the first instance decision in this case, it remains open to the judge who hears the retrial to uphold the decision in favour of the Defendants. He will however need to set out very clearly his findings on the risk of serious injury that was involved in the game.

Defendants and their insurers should note the emphasis on risk assessments. Whilst accepting that they are not a panacea, Lady Justice Smith stated “I would not wish judges to have the idea that risk assessments are unimportant and can never affect the outcome of a claim.” It has also been confirmed that an employer’s duty to carry out a risk assessment is non-delegable. However, if a thorough risk assessment in relation to an activity has been carried out by a contractor, a less detailed risk assessment by an employer may be sufficient.