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Trustees of the Portsmouth Youth Activities Committee v Poppleton, Court of Appeal, 12 June 2008

17 July 2008
The issues

Occupiers Liability Act 1957 – fall from height – Tomlinson v Congleton.

The facts

On the 12th February 2002 Gary Poppleton went to the Defendant’s indoor climbing premises at the Peter Ashley Activity Centre in Portsmouth to engage in “bouldering”. Bouldering is the word used for low level simulated rock climbing without ropes. Mr Poppleton was a fit young man, a relatively inexperienced climber, who went with a group of friends, two of whom were more experienced than he. The premises were made up of an artificial climbing wall 16 feet above floor level at its highest point. The floor was covered wall to wall with shock absorbent matting 12 inches thick. On one wall there was a buttress feature protruding into the room to form an overhang at a height of about 5 foot 6 inches. Mr Poppleton had climbed this wall only 3 or 4 times before. He was shown no rules or asked to sign any disclaimer notice. He was given no instruction or any explanation of risk. He was not asked about his ability as a climber.

No criticism was made of the bouldering design or the appropriateness of the safety matting. There were 3 uncovered steel girders across the room at about the level of the top of the wall. It was said for the Claimant that steps should have been taken to ensure that the girders were not used for climbing. There were climbing wall rules on a board outside the climbing room which the experts agreed should have been more prominently displayed. They included injunctions not to jump off the walls or climb on top of the structures, including the girders. The Claimant did not read these rules and did not appreciate that he was not supposed to jump from the walls. He imitated others whom he saw jumping. When attempting to copy one of his friends who leapt from a back wall to grab hold of a girder, Mr Poppleton fell. He landed on his head. He was badly injured and is now tetraplegic. The matter came before the Judge who found for the Claimant but found that the Claimant was responsible by way of contributory negligence to the extent of 75%. The Defendant appealed.

The decision

The Judge had rejected the Claimant’s claim under the Occupiers Liability Act 1957 on the basis that there was nothing wrong with the state of the premises and there was no relevant breach of duty to people other than Mr Poppleton arising from Mr Poppleton’s activities. At common law the Judge found the Defendant negligent on the basis that they were in breach of duty in failing to warn him that thick safety matting did not make a climbing wall safe but might induce or encourage an unfounded belief that it did. In so doing, the Judge relied in part on the Health and Safety Executive video “Get a Grip”. The Judge found that had the Claimant been made aware that matting did not render falls safe, he would not have attempted the dangerous and risky leap which, as he knew, was beyond his capabilities.

The Claimant cross appealed against the finding of contributory negligence.

The Claimant also argued that the Judge should have found a duty to offer training and supervision.

Following the decision of the House of Lords in Tomlinson v Congleton Borough Council it was necessary first to consider whether the risk in this case was inherent and obvious. The risk of falling from the wall was plainly obvious. The Judge’s finding that the risk that the matting might not in every case protect a climber who fell from serious injury was not obvious, was not sustainable. It was obvious that no amount of matting would avoid absolutely the risk of possibly severe injury from an awkward fall and that the possibility of an awkward fall was an obvious and inherent risk of this kind of climbing. There being inherent and obvious risks in the activity which the Claimant was voluntarily undertaking, the law did not require the Defendants to prevent him from undertaking it, nor to train him or supervise him while he did, or see that others did so. The cross appeal would be dismissed.

The finding that the mat represented a hidden danger was not sustainable. The risk of possibly severe injury from an awkward fall was obvious and did not sustain a duty in the Defendants to warn Mr Poppleton of it.

Appeal allowed.

Cross appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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