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Blair-Ford v CRS Adventures Ltd, High Court, 13 August 2012

5 September 2012
The issues

Welly-wanging – risk assessment – adventure activity course – foreseeability – socially desirable activity – Compensation Act Section 1

The facts

Mr Blaire-Ford was head of design and technology at Wilmington Enterprise College in Kent. He was a keen cyclist up to the time of the accident and would ride ten miles to and from school, two or three times a week and would do a five mile run once a week and swim regularly three times a week and use light weights at home.

Whether the social benefit of an activity was such that the degree of risk it entailed was acceptable was a matter of fact

In April 2007 he was one of five staff and forty pupils who went on a residential activity course at the River Dart Country Park, operated by the defendant. The course involved climbing tall poles, pot-holing, rock climbing, and walking along a wire. Each activity was supervised by at least one instructor employed by the company. On the last day an evening fun event called ‘mini Olympics’ took place. The activities included a sack race, a three-legged race, a tug of war and welly-wanging. The claimant was encouraged to take part by pupils and one of the instructors. He had never previously thrown a welly nor seen anyone else throw one and the main issue in his mind was whether he should throw it over arm or round arm. He was told by the instructor to throw it backwards through his legs, with the intention of handicapping him as against the children. He did so and on the third swing let go of the boot. He was trying to throw it as far as he could. As he let go he felt his whole body rotating forward as if the ground came up to meet him. His head hit the ground, he rolled over and could not move. As a result he suffered a catastrophic spinal injury, resulting in permanent paraplegia.

Welly-wanging had been part of the mini Olympics since 2004 and there had never been a similar incident. One of the owners of the company estimated that she had thrown the welly backwards through her legs on 50 or 60 occasions and had seen it done by others on a similar number of occasions. On none of these occasions had she seen any difficulties or anyone fall or injure themselves.

A risk assessment had been carried out in relation to welly-wanging and one had been done. The process related to various documents, including a risk assessment relating to the mini Olympics, an activity specific operating procedure relating to mini Olympics and instructors notes. Instructors were trained to carry out on site risk assessment as part of a dynamic process.

The decision

It was common ground that by virtue of Barnes v The Scout Association and Section 1 of the Compensation Act, the law of tort ought not to stamp out socially desirable activities merely because an activity carried some risk. Whether the social benefit of an activity was such that the degree of risk it entailed was acceptable was a matter of fact.

Secondly, it was agreed that there was a duty to risk assess the mini Olympics. As had been said by Lady Justice Smith in Allison v London Underground Ltd, risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They were an important feature of the health and safety landscape and provided an opportunity for an intelligent and well informed appraisal of risk and could form a blueprint of action leading to improved safety standards. She had said however that they were not a panacea and were more effective in relation to static activities or activities repeated in a routine way than where a lot of variables came into play.

Thirdly, the standard of care was an objective test of reasonableness.

Although there had been a formal risk assessment of the mini Olympics as a whole, there had been no formal risk assessment and no advanced plan as to the method of handicapping the teachers before the welly-wanging event was about to begin. That was not decisive however. This was a case where there were many variables and it was not a valid criticism to say that there was no formal risk assessment. A dynamic risk assessment was acceptable. That assessment had been carried out throughout the process by the two instructors concerned. They had envisaged no risk of any injury at all, still less any serious injury. As a result, no steps needed to be taken to modify the method or provide any specific warnings to the claimant. The way in which the claimant had thrown the welly had brought together a combination of circumstances which cumulatively could not have been foreseen, namely considerable force, bending very low, positioning the head almost between the knees, falling forwards when the hands were still between the knees, and striking the ground with his head and neck at such an angle as to cause the catastrophic injury sustained. His was no ordinary throw. The consequences could not have been foreseen.

Following the guidance given in Uren v Corporate Leisure UK, the risk which needed to be foreseen was the risk of serious injury and not just the risk of any injury. Even however if the test were to be otherwise, the Court was satisfied on all the evidence that the result would be the same if what had to be foreseen was the risk of any injury. There was no foreseeable real risk and this was a tragic and freak accident for which no blame could be established.

Claim 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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