"Are you brave enough to take the plunge?"

Article

09 May, 2016

Fraser v Brian Moore t/a Esk Leisure, Mini Monsterz

Middlesbrough County Court - DDJ Davies

21st April 2016

The Claimant sustained an injury whilst using a slide called the "plunge" during a visit to a play centre. It was alleged that the accident was caused by the Defendant's negligence; specifically a lack of instruction.

Forbes on behalf of the Defendant and the Insurers Sportscover robustly defended the claim both pre-and post-litigation. The Defendant argued they had no knowledge of the injury sustained until the letter of claim some time later. They maintained that it is inherent that use of the slide is not without risk and that if the Claimant did sustain injury it was due to the fact that she did not carry out instructions as directed.

At trial, the Judge preferred the Defendant's evidence. The Defendant had a member of staff in situ at the top of the slide providing instructions to users and implemented a safety procedure including risk assessments, instructions and notices at the top of the slide.

The Judge was also mindful that the ethos of this particular slide was that it was daring and challenging, a tannoy announced "Are you brave enough to take the Plunge?" The Judge found that the Claimant had accepted this before embarking on the slide.

The Court held that the Defendant had taken reasonable steps and that clear instructions were given together with adequate signage. The claim was dismissed.

Forbes comment

Play providers are being urged to encourage children to embrace risk by creating more challenging and exciting play environments. In the case of Tomlinson v Congleton BC Lord Hoffmann said: 'The question of what amounts to such care as in all the circumstances of the case is reasonable depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.'

The standard owed is not one of absolute safety, however to protect against possible claims, providers must ensure that they implement adequate safety procedures including comprehensive written risk assessments.

For more information please contact Ridwaan Omar by email or call 01254 662831.

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