Three cases which, while not covering any new points of principle, are illustrative of judicial approach and attitudes to risk and misfortune. Two are first instance and in the third the Court of Appeal remind litigators not to rely too much on a “health and safety gone mad” view of the world.
Wilson v GP Haden38 considers the role of an adventure activity centre and the extent to which demonstration or supervision is required on an outdoor obstacle course. The claimant, a scout leader, with a party of scouts, attempted the obstacle course. The claimant fell off a fireman’s pole, falling several feet to a wood chip and bark ground covering and suffering a fracture to his first lumbar vertebra. The pole had been identified by the Centre in its risk assessment as a piece of equipment for which risk was high and on which demonstrations should be carried out before use. In fact, the instructor did not demonstrate the technique to be adopted deeming it “obvious” and contending that it was impracticable to demonstrate every feature of the course. While the Court agreed that demonstration of every feature would be time consuming and defeat the purpose of the adventure course, the defendant had assessed this piece of equipment as dangerous and one the use of which should be demonstrated. This was only mandated for six out of 14 obstacles. Moreover the fireman’s pole had specifically been identified as risky and steps had been set out to manage and minimise the risk. In the light of this, clear instructions, at the very least, should have been given. Failing to do this gave a breach which had caused the harm. The lack of bark chippings was negligent but could not be shown to have caused harm.
Ayres v Odedra39 reinforces the realization that the factual bases of cases before the Courts always far exceed the situations one can postulate in the abstract. Here an accident occurred between a motorist and pedestrian. The motorist, Mr Odedra, was driving on a one-way street within a pedestrian zone limited to specific vehicles. The claimant was drunk having been out with friends. As he staggered off to a nightclub he began to drop his trousers and expose himself. His anti-social behavior led him to stand in the path of the defendant and drop his trousers. Mr Odedra was not licensed to drive in the pedestrian zone, but unaware of this. He stopped when confronted by the claimant but at some point drove off, struck the claimant who fell and hit his head and then ran over him causing a knee injury. The driver’s reckless behaviour meant he was primarily responsible but the claimant’s drunken state and dropped trousers hampered his ability to move and so he was found to be 20% responsible.
Richards v Bromley London Borough Council40 involved a 15 year old cutting her heel when leaving a school building through a pair of swing doors. They opened outwards with a self-closing mechanism. The doors had been there for 30 years and used by all pupils including the claimant many times before. There were no previously recorded incidents of injury. However, four months earlier another pupil had suffered minor injury to her heel when using the doors, after holding the door open for another pupil who pushed the second part of the swing door open catching her heel. This incident was not recorded but was known of and investigated. The site manager had, in the light of the earlier incident, ordered some works to be done on the door which could only be done in the holidays. This meant, while planned, it had not taken place before the claimant’s accident. After losing at first instance, the claimant appealed alleging that had the initial incident been properly investigated and taken seriously steps would have been taken that would have avoided her injury. However, the Court of Appeal disagreed. The first incident happened due to the carelessness of a third party and bore but a superficial similarity to the claimant’s injury. Moreover, it had been considered and reasonable steps put in place to carry out works. While the Court had sympathy with Ms Richards’ injury Lord Justice Tomlinson said, “it was most unfortunate that Miss Richards should have suffered her unpleasant injury only weeks before the work was scheduled to be done. She has my sympathy. Sympathy however is an insufficient basis on which to subvert the law of tort. It needs to be understood that not every misfortune occurring on school premises attracts compensation.”