27 June, 2019
Rebecca Osborne v Bourne Leisure Ltd (2019) CC (Winchester) (Judge Iain Hughes QC) 26/02/2019
A Defendant leisure resort owner was found liable after a guest sustained an injury whilst participating in an organised game at the Defendant's premises.
The Claimant was on holiday staying at the Defendant's resort and had visited the entertainment area. Throughout the evening, stage acts were interspersed with games involving the audience.
The Claimant had volunteered to take part in a game similar to musical chairs, the participants were sent into the audience to collect a specified item, return with it and sit on a chair. During each round one chair would be removed and a contestant would be eliminated until there was a winner.
During the game, a dispute arose between the Claimant and another participant as to who had returned to the remaining chair first. The employee running the game decided to hold a tie-break and sent the Claimant up one aisle and the other participant up another aisle at the opposite end of the room and told them that the first one back on the chair was the winner. Both the Claimant and the man ran towards the chair, they collided and the claimant was injured. The Claimant brought a claim for personal injury.
It was agreed that the Defendant had breached the common duty of care owed to the Claimant pursuant to s.2 Occupiers Liability Act. The Judge concluded that the accident had occurred because the organiser had invented an unapproved tie-break race which had not been approved, or subject to any form of risk assessment. He found that a collision in a race of this kind was almost a "certainty". Evidence at trial suggested that the Claimant's opponent had displayed competitive aggression prior to the incident yet he had not been disqualified or reprimanded for his behaviour, and therefore the decision to hold a tie break of this type was "foolhardy".
The Defendant's arguments that the Claimant had willingly accepted responsibility for the risk by participating in the game was promptly rejected by the Judge. The race was a spur of the moment decision made in front of an audience without the opportunity for reflection. The context a decision is made in is usually an important consideration when considering whether a volenti argument is likely to be successful.
Occupiers must take reasonable steps to safeguard visitors. In this matter, the employee on behalf of the Defendant was under an obligation to take reasonable steps to ensure the participants in the tie-break game would be reasonably safe. To avoid similar claims, occupiers should ensure that they are fully aware of their obligations under the Occupiers Liability Act and ensure that staff are fully trained.