Emma Maylin v Dacorum Sports Trust (T/A XC Sportspace) [2017] EXHC 378 (QB)

A personal injury claim following a fall from a wall at a climbing centre.

The claimant attended a climbing centre with a friend. She had never tried the sport before. Her friend had completed a beginners climbing course and was signed off as “rope competent” and permitted to supervise the claimant.

They paid for general admission. There were various options upon admission including supervision and training. General admission did not include training. The claimant completed a disclaimer upon admission which included a “Participant Statement” stating climbing was an activity with a danger of personal injury or death, and “participants should be aware of and accept [those] risks and be responsible for their own actions”.

Customers also had to answer yes or no to various questions. The claimant answered yes to questions concerning her understanding that a failure to exercise care could result in injury or death.

The claimant hired a harness but declined to hire specific climbing shoes. No safety briefing was given. Whilst climbing a particular wall for the third time the claimant fell almost from the top of the wall and fractured a disc in her back.

The claimant submitted the defendant had failed to draw her attention to the risks involved in the activity and had failed to provide basic safety information, and that such failures led to her injury.

HELD: At the heart of this case was whether the defendant had a duty to provide a safety induction or briefing, or to supervise the claimant and warn her there was a risk of injury. The risk of falling was obvious and that no amount of matting could avoid the risk of serious injury from an awkward fall.

The defendant was not required to train, supervise or warn the claimant, and it made no difference that the claimant paid to use the wall. The defendant had taken sufficient steps to draw the claimant’s attention to the risks inherent with climbing. The Participation Statement made it clear climbing was an activity with risk of injury or death.

Regardless of whether the claimant had read them there were notices warning users at the wall the claimant fell from that matting did not make it any safer, and another notice that made it clear broken and sprained limbs were common. The fact the defendant could have done more, for instances the receptionist spelling out the risks verbally, was not relevant if the steps already taken were sufficient.

The claim failed.

Criminal Injuries Compensation Authority v First Tier Tribunal & Y (by his mother and litigation friends) [2017] EWCA Civ 139

CA (Civ Div) (Sir Brian Leveson PQBD, McFarlane LJ, Henderson LJ)

A child conceived with a genetic disorder as a result of incestuous rape of his mother was not eligible to claim criminal injuries compensation

Y had been conceived as a result of the rape of his mother by the mother’s father. The father subsequently pleaded guilty to incest. The mother received compensation but it did not cover Y’s condition, care or upbringing. Y had been born with a serious genetic disorder, probably caused by the incest.

Y brought a claim under the Criminal Injuries Compensation Scheme. The CICA refused the claim on the basis Y was not a victim of a crime of violence. His condition was due to the relationship between his parents, and not the assault itself.

The First Tier Tribunal found Y had never been in an uninjured state, and had therefore, not suffered injury in terms of the scheme.

The Upper Tier Tribunal held that “in common parlance” Y had suffered injury and that those injuries were attributable to a crime of violence.

The decision was appealed. The Court of Appeal allowed the appeal.

The scheme is governed by the Criminal Injuries Compensation Act 1995 which was approved by Parliament. It had to be governed by the rules of statutory construction which applied to all such instruments. The Act and the Scheme no longer assess damages by reference to common law principals but on a prescribed tariff.

The terms of the scheme meant the only victim of the crime of violence could be the mother. To suggest Y was a victim went beyond what the scheme sought to cover. It was insufficient for the Upper Tier Tribunal to have concluded that in common parlance Y had suffered injury without adequate reasoning to justify that conclusion.

The Court of Appeal went on to comment that the mother should receive compensation for the difficulties she had experienced caring for a disabled child born as a result of the crime committed against her was another matter and one that should be addressed by the Secretary of State.