30 July, 2020
What duty is owed to a person voluntarily involved in a fun recreational activity, by the organisers of that activity?
This was the main question in a case where Forbes recently successfully acted for the operators of a fun activity centre, where participants carried out activities on various large inflatables. The claimant had attended the centre with work colleagues and was injured when she fell whilst undertaking an activity on one of those inflatables. She claimed to have suffered severe spinal injuries.
The activity the claimant was taking part in involved 2 competitors climbing on to a platform that was 120cm high, each armed with a foam baton, that was then used to try to knock their opponent off the platform, in the style of a game on the 1990s TV's show Gladiators. The claimant made various allegations against the organisers, including that no neck support was provided and that they provided no instructions on how to use the equipment or how to fall safely from it given that it was likely, if not inevitable, that someone would fall, due to the nature of the game. The organisers denied all these allegations, and in any event said that they were not relevant to causation.
There was no evidence that the equipment was defective. It was of standard manufacture and adhered to relevant accreditations and was properly inspected.
The claimant was a volunteer in the activity. The duty of care in such cases is well established. Participants must be protected from risk, but that is not to say that all risk must be eliminated.
How the court decides whether the duty has been fulfilled was set out in the case of Scout Association v Barnes  EWCA Civ 1476 when it was decided that playing a game of Grab in the dark created an unacceptable risk of injury for which the defendant was liable. The Court of Appeal explained the balancing exercise that needs to be undertaken in such cases as follows:
"Of course the law of tort must not interfere with activities just because they carry some risk. Of course, the law of tort must not stamp out socially desirable activities. But whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach" .
If someone chooses to participate in an activity that has obvious risks the law will not necessarily provide them with a remedy if they suffer harm as a result. However, if an activity is so dangerous that a person should not be allowed to participate in it at all, because there is significant risk of injury with no social benefit, will the law intervene to say that the defendant cannot avoid liability because the claimant was a volunteer.
The duty is to ensure the participants' reasonable safety in relation to risks that are not obvious. Where a person is voluntarily participating in a recreational activity which obviously gives rise to a degree of unavoidable risk of injury the Court of Appeal has said that they may find that they have no means of recompense if the risk materialises so that they are injured. See the case of Trustees of Portsmouth Youth Activities Committee v Poppleton  EWCA Civ 646 which involved a fall from height whilst the claimant was using a climbing wall. The judgment in that case went on to say that the law did not require the defendant to prevent the claimant from undertaking the activity, nor indeed was there a duty even to train or supervise him whilst he did it. Even so, the defendant in the Gladiator game had evidence that they had provided training and supervision.
Despite taking the matter all the way to trial, the claimant in our Gladiator case discontinued 2 days into a 4 day trial.
Cases such as this are clearly fact specific but the law is such that Defendants are given an element of protection in running such activities. Many activities such as this are attractive because of the inherent risk and the court has recognised that when considering the social benefit of these activities. The test is one of reasonableness and where a Claimant is injured due to an inherent and obvious risk in that activity the Court has shown a welcome reluctance to impose liability on Defendants (see also https://www.forbessolicitors.co.uk/news/47014/extent-of-the-organisers-duty-of-care-in-dangerous-sporting-activities). The Defendant still has to show they've taken reasonable steps and the safety of equipment being used remains important, but where that is the case, such claims can be successfully defended.
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