There has been a recent spate of accidents occuring in public places which involve a group of people being injured. Just over a year ago a number of people were injured on the Smiler ride at Alton Towers, sustaining both physical and psychological injuries. Merlin Attractions Operations Ltd was fined over £5 million as a result. In June 2016, nine people were injured when the Tsunami rollercoaster at M&D’s theme park in Lanarkshire crashed, and then in August 2016 19 people were left hanging 65ft above London’s South Bank for three hours after the Starflyer fairground ride got stuck. A ceiling collapsed at the Apollo Theatre in London’s West End in December 2013, leaving 76 people injured, seven seriously, by falling masonry. A number of individuals away at a company weekend at Bovey Castle also suffered injuries recently when the balcony they were standing on gave way.
The personal injury team at Penningtons Manches LLP is acting for a number of individuals injured in some of these incidents. Philippa Luscombe, partner in the personal injury team, looks at the law that tries to prevent such accidents from occurring and the remedies that an injured person has.
Members of the public who visit shows, attractions or hotels go to these venues with a reasonable expectation that the place is safe for them to visit. There is a raft of legislation in place to try and ensure that an occupier maintains safe premises and a failure to comply can lead to the injured person being able to bring a personal injury claim.
Whilst specific health and safety legislation is often thought to apply only to employees, a considerable part of the legislation applies to visitors to somewhere that is a place of work. The Health and Safety at Work Act 1974 (HSWA) places a duty on employers to ensure, as far as is reasonably practicable, that in the course of their activities persons who are not their employees are not put at risk. The Management of Health and Safety at Work Regulations 1999 require an employer to “make a suitable and sufficient assessment of the risks to the health and safety of persons not in his employment arising out of their undertaking”. Breach of the legislation resulting in injury can give rise to both civil liability (for damages) and criminal prosecution.
In terms of law applicable to the owner or manager of a premises, under the Occupiers Liability Act (OLA) an occupier owes a “common duty of care” to all their visitors. This is a duty to take such care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. Premises includes associated plant and equipment – such as, in the case of the theme parks, the rides.
Section 2 of the OLA 1957 lays down a duty on behalf of the occupier of the premises that it is reasonably safe for the visitor to use. Recent case law has suggested this duty is not an absolute duty to prevent injury and the emphasis rests on the word ‘reasonable’ – and further, that an occupier is not required to warn of the risk of injury where the risk is obvious. However in the incidents mentioned above, the circumstances of all have been, or appear to have been, due to failures in equipment or procedures that should not have occurred or due to the unsafe state of the premises itself.
In order for the occupier of the premises to discharge their duty to visitors, there are a number of things they may need to do:
- Show that risk assessments have been carried out so that potential risks can be identified and then reduced to the lowest level reasonably practicable.
- Carry out regular inspections to ensure the integrity of the premises (and, as above the associated plant and equipment) remains reasonably safe.
- If hazards have been identified, these hazards may need to be cordoned off or highlighted to visitors in some sufficient way so that the hazard can be noticed and avoided.
Penningtons Manches acts for a large number of clients who have successfully claimed for damages following breaches of the OLA, including acting for multiple claimants from a single incident. It is important to identify actual breaches of duty under the legislation rather than assuming a claim will succeed just because the incident occurred on someone else’s property or at a venue organised by another party.
There must have been a failure on the part of the owner / occupier to adhere to safety requirements rather than injury arising due to pure ‘accident’ that could not have been foreseen or as a result of their own actions or failure to take care for their own safety. However where there are clear failures there are various routes to follow in order to secure compensation for injuries suffered.