Cornish Glennroy Blair-Ford v CRS Adventures Limited [13.08.12]

Court confirms that risk assessments cannot foresee all risks; social value of an activity has to be considered when deciding whether to allow an activity to continue.

Comments

This is another common sense decision where the Compensation Act 2006 has assisted a judge to find that tragic accidents can happen without fault. Section 1 of the Act is headed "Deterrent effect of potential liability" and applies in relation to the management of activities of social value or, in the words of the Act, "desirable activity".

The intention of that provision is not to deter organisers of socially orientated activities by an overly rigid application of the health and safety regime applicable elsewhere. However, it should not be anticipated that similar latitude (exercised in this case in relation to risk assessment of a modified method of "welly wanging") will be applied to liability assessment of work-place accidents. On the contrary, a strict application of the law on matters such as risk assessments will continue to be enforced by the courts and where only on the most exceptional facts will an accident be held to be without fault.

Background

The Claimant, a college teacher, participated in a one week adventure course at the Defendant’s country park. On the last day of the trip, the Claimant took part in a mini-Olympics activity of "welly-wanging". This activity involved throwing a wellington boot as far as possible. During the event, the teachers were asked to throw the wellington boot between their legs so as not to put the children at a disadvantage. The Claimant threw the wellington boot with such force that he lost balance and landed on his head, suffering as a consequence a catastrophic spinal injury.

A risk assessment had been carried out before the event but the Claimant alleged that the injury was a foreseeable consequence of the revised method of throwing and the Defendant had breached its duty of care by failing to carry out a formal risk assessment on that method.

Held

Mr Justice Globe was satisfied that the Defendant operated a professionally run enterprise that provided immense social value. Globe J recognised the well-established principle that the social value of an activity is a relevant consideration, as confirmed in the case of The Scout Association v Barnes [2010] (a case in which Kennedys acted).

Globe J accepted that the mini-Olympics (and the activities within it) did not carry inherent danger that created licensing requirements. Nevertheless, the risk assessment documentation produced by the Defendant would have accorded with any such requirement(s).

Globe J held that a formal risk assessment of the mini-Olympics event as a whole was satisfactory. The Defendant could not be criticised for not carrying out a formal risk assessment of the method for handicapping the teachers before the welly-wanging activity began. Globe J observed that formal risk assessments can, in any event, be a less effective tool where a lot of variables exist (as with the welly-wanging activity).

The manner in which the Claimant sustained injury could not have been foreseen – there was no foreseeable real risk. Further, the risk which needed to be foreseen by the Defendant was the risk of serious injury and not just the risk of any injury. As such no steps were needed to have been taken to guard against it. The injury resulted from a tragic and freak accident for which no one was to blame.

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