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Uren v Corporate Leisure (UK) Ltd & Ors, High Court, 22 January 2010

19 February 2010
The issues

Risk – sport – sporting injury – Claimant injured after diving head first into inflatable pool.

The facts

The Claimant brought proceedings in respect of an accident which had occurred during a Health and Fun Day held on the 28th July 2005 at RAF High Wycombe. The matter came before the Judge in respect of liability only.

The day had been organised by the RAF High Wycombe Physical Education Flight (PEd Flt) under the leadership of the Physical Education Officer. It consisted of 16 health stands, 4 fitness classes and 6 games in the style of ‘it’s a knockout’ in the open air. The games were played by teams represented the different flights present on the station.

The last of the 6 games was a type of relay race. Members of the teams had to run up to an inflatable, rectangular pool; get in over the side; grab a piece of plastic fruit, floating in or under a shallow depth of water; carry it out of the pool and put it in a bucket, at which point the next team member repeated the routine. The pool belonged to the First Defendant, an events management company. The Ministry of Defence were the Second Defendant.

Mr Uren watched the first heat, during which half of the contestants entered the pool by sliding over the side head first, with their hands stretched out in front of them. The sides of the pool were 1.04 meters high and 0.98 meters wide. The depth of the water was about 0.46 meters. The other contestants had vaulted or scrambled over the side, landing feet first. Mr Uren ran to the side of the pool and launched himself over it with his arms outstretched ahead of him. He hit his head on the bottom of the pool, breaking his neck and was left tetraplegic and confined to a wheelchair.

The Claimant remembered 3 people in the pool, causing him to adopt a diagonal approach to avoid landing on them. The next thing he remembered was waking up, face down, unable to move.

The First Defendant had, some year before the accident, carried out a risk assessment of various games used by the company, including the pool game. The risk assessments made by the First Defendant were not sought, nor provided to RAF High Wycombe. There was no evidence that the individual who had produced the original risk assessment appreciated that contestants might enter the pool head first. Nor, when the risk assessment was reviewed, was this taken into account.

Mr Berry, who was in charge for the First Defendant on the day, had provided an amplified running commentary, the Judge finding that he had used words such as “nice one” on several occasions when contestants had entered the pool by sliding over the side head first. There had been no encouragement to engage in anything risky or dangerous in his commentary however. The civilian employee of the RAF at High Wycombe who was charged with health and safety had carried out no risk assessment of the Health and Fun Day and no justification for the failure had been offered up. The RAF Physical Education Officer had carried out an overall risk assessment of the day dated 18th July 2005. Subsequently, he prepared a second assessment which was fuller and included a reference to “water risk (drowning)”.

The Claimant relied on expert evidence, as did the Defendant. The Claimant’s expert took the view that head first entry should not have been permitted but that it was impossible to make sports activities risk free. The Second Defendant relied on expert evidence in addition, to the effect that the accident would have been avoided had the Claimant not dived head first into the pool and that it would have been advisable to ban all head first entries at the outset of the game and that, moreover, the events company should have ensured that competitors were verbally warned not to enter the pool head first. The First Defendant’s expert took the view that an assessment of the type of accident that had happened to Mr Uren would have been forecast as very low indeed. He took the view that it was not necessary to discourage sliding over the side head first with arms outstretched because the friction with the inflatable side would have slowed entry into the water and the strain would have been taken by the arms before impact.

The decision

The risk assessment carried out by the company was defective.

The expert evidence of the First Defendant was however persuasive and more so than that of the Claimant’s expert who had allowed hindsight to creep into his reasoning. The evidence relied upon by the Second Defendant was of very little assistance.

The risk of serious injury posed by the pool game was very small. The contestants were told to take care on entering the pool. It was obvious that they should not have attempted to dive in without sliding over the side. The existence of a very small risk of serious injury did not mean that the Defendants were in breach of the common law duty of care owed to Mr Uren. Enjoyable competitive activities were an important and beneficial part of the life of very many people who are fit enough to participate in them and this was particularly true in the case of fit service personnel. A balance had to be struck between the level of risk involved and the benefit the activity conferred on the participants and on society generally. Neither the company nor the Ministry of Defence was obliged to neuter the game of much of its enjoyable challenge by prohibiting head first entry.

Claim dismissed.

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