It has been suggested that fear of ‘risk’ and being sued, should anything go wrong, has tipped the balance too far so that ‘fun’ activities are banned – the ‘nanny state’ and compensation culture gone mad, perhaps. However, over the last few years, the judiciary appears to have shown willing to adopt a common sense approach in some cases that may previously had fallen foul of onerous burdens imposed by statutory regulations. Andrew Jones considers four such cases which illustrate a growing trend being adopted by the court aimed at balancing the social benefits of an activity, or event, against its risks. Consequently, it now appears the concept of social value could offer local authorities and/or private bodies a means of establishing a defence on cases that appear initially suitable only for settlement.
Barnes -v- The Scout Association (2010)
The Barnes case provides a clear example of the judiciary’s willingness to adopt a ‘checks and balances’ approach when considering the risks associated with an activity, rather than applying a strict interpretation of the regulations.
The claimant, a boy scout, was thirteen years old when he suffered minimal shoulder and head injuries while playing a game called ‘objects in the dark’. During the game, ten small wooden blocks were placed in the centre of a hall with half the main lights turned off. The boys then ran or jogged around the hall until the remainder of the lights were switched off, leaving only the emergency lighting on. When the lights went out the boys had to run into the middle of the hall to grab a block. The boy who did not get one was eliminated. The claimant’s accident happened as he chased towards one of the blocks in the semi-darkness: in doing so he collided with a wall.
In this case, the balancing act between social benefit and risk turned ultimately against the defendant. However, Lord Justice Jackson did raise the issue of social value in a lengthy dissenting judgment. He felt that ‘the social value of the scouting movement was obvious… and games are one important part of scouting activities’. Taking a refreshingly common sense approach, he confirmed that ‘… it is not the function of the law to eliminate every iota of risk or to stamp out socially desirable activities’. Lady Justice Smith disagreed with Jackson, but did concede that ‘the social value must be taken into account in assessing whether the activity was reasonably safe’. That said, while ‘scouting activities are valuable to society and will often properly include an element of risk … the level of risk has to be acceptable’.
Hammersley-Gonsalves -v- Redcar and Cleveland Borough Council (2012)
The court in this instance adopted a common sense approach when assessing both staff ratios and the capabilities of a teacher supervising a large group of school children. The reasoning echoes LJ Jackson’s comments and added greater weight to the process of balancing risks against the social benefits of an activity.
During a school golf lesson, the twelve year old claimant suffered a facial injury having been struck by a golf club swung by another pupil. The class consisted of 22 male pupils, all aged between eleven and twelve years old, supervised by one teacher. At trial, the claimant succeeded, the judge finding that the teacher had not adequately supervised the pupils given that he could not, and did not, see what his pupils were doing at the time of the accident.
However, that decision was overturned on appeal where it was concluded that the system of supervision was adequate in the circumstances. Although the teacher could not see all the actions of all pupils at all times, this did not amount to negligent supervision. The pupils had undertaken previous golf lessons over the preceding six weeks during which they had been generally well behaved, as they were on the day of the accident. Consequently, the action of one pupil who swung his golf club hitting the claimant was deemed spontaneous and wholly unexpected. On the balance of probabilities, no action by the teacher would have prevented the accident. In addition, closer supervision of the group by, for example, allocating extra teachers to the lesson was not reasonably required in the circumstances.
Cornish Glennroy Blair-Ford -v- CRS Adventures Limited (2012)
In this case, the court adopted a common sense approach when assessing the level of control an organiser can impose upon an event and/or activity. It considered the role of risk assessments holding that these cannot realistically foresee all risks.
The accident happened at the end of a one week adventure course at the defendant’s country park. On the last day, the claimant, a college teacher, participated in a mini-Olympics which included ‘welly-wanging’ - throwing a wellington boot as far as possible. So as not to put the children competing at a disadvantage, the claimant was asked to throw the wellington boot between his legs. He duly did so, but with such force, that he lost his balance and landed on his head, suffering a catastrophic spinal injury.
The defendant had performed a risk assessment before the event, but the claimant alleged the injury was a foreseeable consequence of the revised method of throwing and that the defendant had breached its duty of care by failing to carry out a formal risk assessment on that particular method. The court found that the defendant had operated a professionally run enterprise providing immense social value, a relevant factor in considering breach of duty, as confirmed in the Barnes case.
The judgment provides another example of the court applying a social value balancing test when considering the duty of care imposed upon organisers of a sporting event. The defendant’s case was assisted by a formal risk assessment which the court had deemed satisfactory, while the manner in which the claimant sustained injury was deemed unforeseeable. Interestingly, the court provided a definition of the risk which needed to be foreseen by the defendant as being a ‘risk of serious injury’ rather ‘than the risk of any injury’. In the case of such an unusual injury, this is a much more realistic standard to attain to.
Uren -v- Corporate Leisure (UK) Ltd and Ministry of Defence (2011)
This case is a ‘shot across the bows’ confirming the social value of an activity is not an absolute defence. In doing so it also re-emphasises the importance of appropriate risk assessments and confirms that a duty of care towards participants cannot be easily subcontracted.
The claimant’s injury occurred during a ‘health and fun day’, organised by the claimant’s employers, the Ministry of Defence. It had subcontracted the event to Corporate Leisure (CLUK) Ltd who both supplied a pool and supervised the event. The final game of the day was a relay race which involved participants getting into an inflatable rectangular pool. On reaching his turn, the claimant 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 trial, having accepted expert evidence that only a very small risk of serious injury existed, the court concluded that, bearing in mind the social benefit of the game, the defendants were not in breach. However, risk assessments carried out had been inadequate. The decision was overturned on appeal on the basis that the trial judge had erred in holding that the game carried only a very small risk of injury when balanced against its social value. The court also reaffirmed that an employer cannot delegate the task of risk assessments. The court refused to define what would be classified as a suitable risk assessment by stating the appropriateness of an assessment would depend on the facts of a case. The court then stated that ‘… if an employer uses a contractor for some activity and satisfies himself that the contractor has carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer is suitable and sufficient even though it is not as detailed as would otherwise be required’.
While instructive, the cases reviewed above do not provide a definitive answer to the question of what steps need to be taken to guarantee a defence, either before or after a claim is brought. In defending such claims, attention should always be paid to implementing adequate investigations and locating supportive evidence such as risk assessments. Potential defendants must also take care to both check and review any risk assessments or health and safety policies carried out by subcontractors.
That said what these cases do show is that courts remain willing to consider such holistic issues as the social value of an activity. Therefore where this factor is present all is not necessarily lost, even in cases which, at first blush may appear the most hopeless prospects to defend.