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Uren v Corporate Leisure (UK) Ltd (1) & Ministry of Defence (2), Court of Appeal, 2 February 2011

10 February 2011
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 claim was dismissed.

The Claimant Appealed.

The Ministry of Defence cross-Appealed against the Judge’s ruling that its risk assessment was inadequate.

The decision

It was obvious that the failure to carry out a proper risk assessment could never be a direct cause of an injury. There were however cases in which it could be shown on the facts that the failure to carry out a proper risk assessment had been indirectly causative of the injury. Such a failure could only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury.

The Judge assessed the game as giving rise to only a very small risk of serious injury. An important part of his conclusion on this issue was his acceptance of the entirety of the opinion of Professor Ball and his rejection of the opinions of the other two experts. A Judge was entitled to accept the evidence of any witness in preference to that of another but one expected a Judge to give reasons for such a preference, even in the case of lay witnesses. When preferring the evidence of one expert to that of another, the Judge’s reasons were open to quite close scrutiny and it would be necessary for the Court of Appeal to examine closely the Judge’s reasons for preferring Professor Ball. The Judge had not carried out a sufficient analysis of the conflicting opinions of the experts. In particular he had failed to deal with the obvious point that the game was to be played competitively by a group of people, most of whom were fit, young servicemen who might be expected to display a considerable degree of enthusiasm.

Secondly, the Judge had been wrong to disregard the impressions of eye witnesses.

Thirdly, the Court was concerned about the use to which the Judge put the statistics which he had relied on.

Considering these three matters, the Court could not say that the Judge’s decision was sound. The Judgment could not stand.

As to the cross-Appeal, the duty to undertake a risk assessment was so closely related to the common law duty of the employer that it would be remarkable if the duty to undertake a risk assessment was delegable when the general duties of an employer to an employee were not. The Judge had been right to hold that the risk assessment duty was non-delegable. There might be circumstances in which an employer, using a contractor for some activity, had satisfied himself that the contractor had carried out a thorough risk assessment and that might lead to a conclusion that the risk assessment carried out by the employer was suitable and sufficient. Here it was clear that Corporate Leisure had not carried out a suitable or sufficient risk assessment and it could not be sensibly argued that the Ministry of Defence could properly rely upon it.

Appeal allowed.

Cross-Appeal dismissed.

Matter remitted for re-Trial by a different High Court Judge – the issues in the action to be limited to the question of the degree of risk of serious injury entailed in the game as played and whether that degree of risk was acceptable in the light of the social value of the game.

The Court also directed that before the action was listed for re-Trial, the parties should attempt mediation.

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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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