Pinchbeck v Craggy Island Ltd [15.03.12]

Indoor climbing centre responsible for Claimant’s fall; Claimant held one-third contributory negligent for jumping off climbing wall; defence of volenti non fit injuria not applicable.

Comment

This case follows the Court of Appeal judgment in Poppleton v Trustees of the Portsmouth Activities Committee [2008]. In Poppleton, the Claimant was also climbing without harness and ropes. He attempted a dangerous manoeuvre and suffered catastrophic injuries when the manoeuvre failed and he fell to the safety matting below. Unlike this case, however, Mr Poppleton was not under the supervision of employees of the Defendant at the time of his accident. Critically, in this case, the Defendant had assumed responsibilities for instruction and supervision, but failed to discharge those duties fully - a failure which resulted in Mrs Pinchbeck’s accident.

Businesses in the leisure industry need to be aware that, when they assume responsibility for the training and instruction of visitors undertaking potentially hazardous activities at their premises, they will be liable if an accident is found to result from their failure to undertake the training and instruction properly. Policies and procedures should be kept under review and they should ensure that instructors understand their responsibilities towards assessing the competence of participants in hazardous activities and provide clear and comprehensive instructions. There may of course be a dispute between a claimant and the instructor as to what instructions were given. Ideally, instructions should be documented and participants required to sign a document to confirm that they have received those instructions and understood them.

This case illustrates the difficulties a defendant will face if attempting to run a defence of volenti non fit injuria. It will, as the judge said, have very limited applicability in a case of alleged negligence. The finding that the Claimant was herself negligent in choosing to run an obvious risk, with the result that her damages were reduced by one-third, will be heartening to defendants.

Background

As a result of a team building exercise on 26 March 2008 organised by her employer, the 41 year old Claimant sustained injuries when she jumped from a climbing wall at the Defendant’s climbing centre.

Most of the session was taken up with climbing what was called the "Competition Wall", during which time the Claimant was provided with a harness and ropes. That activity was closely supervised by the Defendant’s staff. The last 10 minutes were spent on a lower wall, called the "bouldering wall", which was to be climbed without harness and ropes. The Claimant’s accident occurred when she jumped down from the bouldering wall.

Before the session started the Claimant signed a "Course Acceptance Form" which included what was described as a "general disclaimer" to the effect that the Claimant was aware of and accepted the risks inherent in climbing and mountaineering activities, together with a specific recommendation that the bouldering wall should be climbed down "as jumping or an uncontrolled fall can result in serious injury".

The floor in front of the bouldering wall was covered by heavy duty matting. The Claimant climbed up the wall and jumped off, twisting as she fell, from a height of over five feet, onto the safety mat a couple of times. She then climbed to a higher point and again jumped, on this occasion landing awkwardly on her ankle. The Claimant admitted jumping down from the wall.

Decision

The High Court held that the Defendant had failed in its duty to provide appropriate supervision and instruction on how to descend the bouldering wall and did not clearly instruct the Claimant not to jump down at any time. As such it was responsible for the Claimant’s injury. Poppleton [2008] was considered and distinguished.

The Court rejected the defence of volenti non fit injuria - the Claimant had not freely chosen to jump down accepting the risk of injury. For the defence to apply, the Claimant would have needed to accept the risk that originated from the Defendant’s lack of supervision. This was clearly not the case as she was unaware of the lack of appropriate instruction and supervision. Had she been aware of the correct safety procedures and still jumped, the defence might have been appropriate.

Nevertheless, the Court held that by jumping off the wall at a height the Claimant had contributed to her injuries. She could have climbed down. She chose to twist as she fell. The appropriate proportion for contributory negligence was one-third.