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The edge of reason

Published 26/06/2008

A landmark case involving a serious injury suffered during a climbing activity signals a move by the judiciary to encourage personal responsibility. Roddy Macleod gives a run-down of the case that could change the way duty of care is perceived in future

Earlier this month the Court of Appeal handed down its decision in a landmark case that illustrates a change in attitude towards those who injure themselves while taking part in risky or dangerous activities.

Those injured while undertaking dangerous activities often understandably look for someone to blame. However, doing that now may not be so easy, especially where there has been an obvious risk of injury and the element of free will.

On 12 February 2002, 25-year-old Gary Poppleton went to Fort Purbrook, outside Portsmouth, to participate in ‘bouldering’: a type of indoor climbing. The centre was run by charity Trustees of the Portsmouth Youth Activities Committee.

Mr Poppleton was a fit young man but a relatively inexperienced climber. He visited the centre with a group of friends, some of whom were experienced and had taken part in the activity a number of times before.

The bouldering room is purpose built with climbing walls that extend to a maximum of 16 feet above floor level. The floor is covered wall-to-wall with shock absorbent 12-inch thick matting.

Mr Poppleton tried to leap approximately two metres from one of the walls to grab hold of a bar on the opposite wall. Unfortunately he lost his grip, somersaulted in the air, fell to the matting below and landed on his head sustaining serious injuries that left him tetraplegic.

The man in the street may have thought the attempted manoeuvre was obviously dangerous and as such blamed the unfortunate accident on Mr Poppleton himself. He, however, consulted solicitors who pursued a claim against the charity, which was supported by its insurer, Zurich.

Claimant’s case

At the initial court hearing Mr Poppleton’s solicitors tried to suggest the charity was liable, by maintaining there was a duty that extended to carrying out an induction and assessment as well as training and supervision. The charity was also criticised for failing to have a proper risk assessment in place.

The trial judge correctly decided there was no such duty. He did, however, decide the charity was in breach of its duty in failing to warn Mr Poppleton that the thick safety matting did not make a climbing wall safe and might induce or encourage an unfounded belief that it did. As such, he awarded the claimant 25% of the value of his claim – an estimated £1m plus.

Again, to the ordinary member of the public it might seem strange that a person could be awarded damages on the basis that it could reasonably be said a large safety mat effectively represented a trap.

The main thrust of the charity’s appeal was based on the initial finding that the safety matting – which the judge had decided was entirely adequate and appropriate – could at the same time be characterised as a hidden danger.

It was obvious that if someone fell awkwardly onto it they might be injured and, therefore, there was no duty to explain the obvious to a consenting adult who did not ask for advice or supervision.

To impose a supervisory or advisory duty would be inconsistent with previously decided cases and represent an increase in the existing level of duties owed by occupiers and operators of facilities. It was argued that there should be a policy of letting adults take care of themselves and there should not be a culture that embraces over-regulation. Furthermore, it should emphasise a move away from a ‘nanny state’ mentality so that individuals can accept personal responsibility.

To allow such a finding to remain would have meant this logic could have been applied to all kinds of activities that are not entirely free from the possibility of accidents. The Court of Appeal ruled there was no relevant hidden or inherent danger in the safety matting.

In delivering a powerful judgment, Lord Justice May said: “Adults who choose to engage in physical activities, which obviously give rise to a degree of unavoidable risk, may find they have no means of recompense if the risk suddenly materialises into injury.”

The Court of Appeal also confirmed if the law were to require training or supervision in this case then it would equally be required for a multitude of other commonplace leisure activities, which nevertheless carry with them a degree of obvious inherent risk. The example of bathing in the sea was mentioned as were examples including the hiring of skis or a mountain bike on which someone later got injured.

Taking responsibility

The fact that Mr Poppleton was charged an entry fee to use the climbing wall made no difference to the result. This case is further confirmation of the court’s attitude to people voluntarily undertaking an activity that involves some risk. If people want to climb mountains, go hang-gliding or dive in ponds or lakes then that is their affair. There is no duty to protect against obvious risk or self inflicted harm.

This decision offers some reassurance to occupiers of land and operators of leisure facilities up and down the country and, of course, to their insurers. Should the claimant’s case have succeeded they would have faced increased responsibilities to train and/or supervise users of their facilities or people on their land.

In this particular instance it would also have had the unusual consequence that an operator of a climbing room with safety matting might be in a worse position then an operator of a climbing room without safety matting.

As such, a common sense decision by the Court of Appeal accords with the common sense approach that the vast majority of the population would wish to be the law of the land. People want to be able to choose what they do free from over-regulation and the worry about being sued for matters that are not their fault.

Roddy Macleod is a partner at Weightmans and acted for the defendant in this case.

This article has been reprinted with permission of the Claims Standards Council

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