SSR v Bosworth Water Trust and others [2018] EWHC 444 (QB)

The facts

On 14 September 2013, the claimant was hit on the side of his face by a golf club which was swung by his friend (J), who had just turned 10. The claimant was one of three guests who had been invited by J’s parents to celebrate J’s birthday at an amusement park that was owned and operated by the first defendant.

At the time of the accident, they were playing crazy golf. J’s mother was near to the boys when it happened but J’s father had gone back to the car and was not near to where the accident occurred. J’s mother had paid for the boys to go on the course, which had 12 holes to play. An employee of the defendant had provided each boy with a metal putter.

The claimant brought a personal injury claim against the first defendant and J’s parents.

At first instance, the first defendant was found liable for the claimant’s injury but the claims against the second and third defendants (J’s parents) were dismissed.

The first defendant appealed against the decision that they were liable to the claimant and the claimant appealed against the decision that the second and third defendants were not liable for the accident.

In particular, the first defendant submitted that the judge had imposed too high a duty of care that resulted in them having to police the behaviour of users of the crazy golf course, which was beyond what was reasonable in the circumstances.

High Court decision

First defendant’s appeal

In respect of the first defendant’s appeal, it was held that there was no error of law in the judge’s approach to the case or his findings of fact.

The High Court held that the judge at first instance could not be faulted in finding that the defendant was in breach of its duty of care for failing to carry out a risk assessment to identify any risks to the public and to take appropriate and reasonable action to mitigate those risks.

It was also held that the judge was justified in finding that the accident had occurred due to the first defendant failing to warn participants, to include the claimant, not to swing their golf clubs. It was specifically stated that the first defendant should have either had a rule in place or appreciated the risk to its customers from the misuse of golf clubs and posted a warning to customers about not misusing the clubs.

The High Court concluded that a warning should have been positioned to instruct visitors how to play safely. It was held that this was the least which should have been done to minimise the risk of injury by the possible misuse of clubs.

The High Court held that the duty of care placed on the first defendant did not impose too high a standard because the preventative measures cost very little and were also commonly seen in the industry. The High Court disagreed that signs and notices were disproportionate and that this judgment would discourage businesses from setting up crazy golf courses or activities of this nature, which would prevent these types of activities in the future.

Also, the judge had found, as a matter of fact, that if J had been given clear instructions and a warning about the danger of raising his golf club, he would not have behaved as he did. Also, there was evidence that J was amenable to firm instructions in the sporting context and would not have swung his golf club if he had been told not to do so.

The High Court rejected the first defendant’s arguments that serious harm was not foreseeable because users of the crazy golf course included children and it was foreseeable, even obvious, that children who were provided with metal golf clubs could cause serious injury to themselves or other users if the equipment was not used appropriately.

The High Court rejected that the risk of injury was so obvious that it did not need to be the subject of mitigating measures. It was specifically stated that “Children lack the insight of adults into what is or may be a risky activity. Children … needed to be told how they should be kept safe and they needed to be told not to raise their clubs above a certain level.”

As a result the first defendant’s appeal was dismissed.

Claimant’s appeal

The High Court considered the key question, which was whether J’s mother, in failing to tell J not to swing his golf club, was in breach of her duty of care owed to the claimant and the other boys.

The High Court noted that J’s mother had not gone round the crazy golf course with the boys and was not on hand if there was any misbehaviour. J’s mother was standing outside the perimeter of the crazy golf course and did not focus her full attention on the boys.

There was evidence that J’s mother had not seen J swinging his golf club on two separate occasions prior to the accident. The High Court accepted the judge’s decision that close supervision was not required but it was held that J’s mother should have given the boys clear safety instructions to include a warning about not swinging the golf clubs if she was not going to accompany the boys on the golf course.

The High Court accepted that J required firm handling because he could be “boisterous and impetuous”. It was also accepted that J’s mother was fully aware of his behavioural characteristics.

The claimant’s appeal against the second defendant (J’s mother) was allowed on the basis that she should have provided a warning to the boys about not swinging their golf clubs.

It should be noted that the claimant did not appeal the judge’s decision against the third defendant (J’s father) as he was not in close enough proximity to J or the rest of the boys at the material time.

What this means for you

In this case, the High Court took into account the likelihood of the accident occurring, the seriousness of any resulting injury, the social value of the activity which gave rise to the risk and the costs of putting in place preventative measures. In this case, the first defendant could have, at little cost, provided warnings to its customers and put notices in place in respect of not misusing the golf clubs.

The court reached a sensible decision when concluding that liability should be apportioned with the second defendant (J’s mother). It can be seen that parents should supervise and/or give warning and guidance to their children in respect of foreseeable hazards that can occur if they misbehave. Also, the High Court took into account the fact that it was foreseeable, even obvious, that children with metal golf clubs could cause injury to themselves or others if they misbehave while using that equipment.

This case shows that the specific circumstances of each case will be carefully assessed and the courts will look to balance public and private interests when reaching a decision. The courts will also look to further the overriding objective and to reach a fair, just and proportionate outcome. Although it could be argued that the outcome was still rather harsh on the defendant occupier, it can be seen that they had failed to carry out any basic risk assessment or consider any issues that may arise from golf clubs being misused.

It remains the case that greater care needs to be taken towards children but nonetheless care also needs to be taken towards adults and those who arguably have assumed some of the risk when participating in a sporting activity.