17.2.09  

Kennedys successfully defends claim against occupier arising out of five a side football match. A case that Kennedys has just won at trial highlights liability issues that are highly topical.  

In Poppleton v Trustees of the Portsmouth Activities Committee [2008], Lord Justice May opened his judgment in the Court of Appeal by stating "Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured."  

Occupiers and their insurers will be relieved to see that adults will be held responsible where they have taken an obvious risk, in that case in an indoor climbing centre. They will also be pleased that this decision was followed last week in Lewes County Court in a case where Kennedys acted for the occupier, Equion Support Services Ltd:  

  • The Claimant, Mr Barnes was employed by Sussex Constabulary in the Tactical Firearms Unit.
  • As part of ongoing training a number of officers were required to attend a two day course at a Metropolitan Police Specialist Training Centre. Mr Barnes stayed overnight at the Centre, which is run by Equion.
  • The Training Centre contained a gym which the Metropolitan Police required to be left open at all times so that its officers who attended the centre (who were mostly firearms specialists) could engage in recreational sporting activities to keep fit.
  • In the evening an informal five a side football match was suggested in the gym. In the course of the match Mr Barnes was tackled by another officer. He put his right arm out and his right hand impacted against the wall of the gym, breaking his arm.  
  • Mr Barnes alleged that the accident occurred because he lost his balance due to the presence of benches stored at the side of the gym.  

The Judge held that the gym was being used by grown ups who were well used to physical training. The gym was perfectly safe and there was nothing dangerous about the position of the benches. The state of the premises was obvious and the claim failed.  

This case follows the decision in a similar claim, Comer v The Governors of St Patrick’s RC School [1997]. Mr Comer was taking part in the fathers’ race at his son’s school sports day. There was a brick wall five feet from the end of the finishing line. Mr Comer won the race but was unable to stop before colliding with the wall. The Court of Appeal rejected the claim, on the basis that this was an informal race run for fun and the brick wall was obvious.  

Mr Barnes also sought to claim against his employer, the Chief Constable of Sussex, arguing that he was acting in the course of his employment at the time of the accident. The Judge held that the fact that he was recorded as being on duty did not mean that he was. The game of football was an optional activity. On balance the game was not within the course of employment and so his employer was not vicariously liable.  

Kennedys’ Counsel at the trial was Derek O’Sullivan of 39 Essex Street. Derek commented following the judgment:  

This decision emphasises the fact that the courts will only hold occupiers liable where the premises are dangerous for the particular visitor concerned; the occupier’s duty does not encompass an ‘activity’ duty (so far as adults are concerned) and the fact that an accident of some sort might be foreseeable does not automatically make an occupier liable. Another important factor in the decision was that the Judge took into account (when deciding whether or not there was a breach of duty) the social value of the gym being open for recreational users at night. There was nobody to supervise the officers who wanted to use the gym at night or to check on the state of the gym at night but it was assumed by the occupier, there never having been an accident, that adult firearms officers would be able to look after themselves when engaging in such a simple activity. The Judge effectively endorsed this view and was very concerned when he learned in the course of the trial that the gym had been closed for recreational users since the accident. The Judge concluded his judgment by expressing a sincere hope that the gym would be re-opened for recreational users”.

This case is further evidence of the common sense approach being adopted by courts since the House of Lords’ decision in Tomlinson v Congleton Borough Council [2003] to claims made against occupiers. Occupiers and their insurers should take heart from this and take a strong line when similar claims are brought in the future.