19 July, 2011
Two recent High Court decisions have considered the defences of voluntary assumption of risk and whether an employee participating in an employer organised event did so as part of his employment so as to invoke the health & safety regulations.
In the case of Geary v JD Wetherspoon (14 June 2011), G visited the pub for a drink and during the course of the evening and on her way out attempted to slide down the banister falling backwards landing on the marble floor 4 metres below. The banister itself was below the minimum height allowed under building regulations in force at the time, as English Heritage did not want any alterations to be made when the building was purchased with the requirement to raise the height being waived by the Council. It was described in evidence as a 'Mary Poppins type staircase'. There had been previous incidents of sliding down the banister both prior to and post G's accident.
G suffered serious injury resulting in a spinal fracture resulting in tetraplegia.
At the trial G gave evidence that she was aware of the obvious risk of falling and chose to take that risk but she contended this only went to the issue of contributory negligence. The owner of the bar contended that G had voluntarily assumed the obvious inherent risk of injury by sliding down the banister.
Justice Coulson sitting at Newcastle High Court, held that G had accepted the obvious risk inherent in sliding down the banister. The Court followed the well established principles laid down by the House of Lords in the Tomlinson v Congleton BC (2003) case. The defendant owed her no duty to protect her from an obvious and inherent risk. The fact that that there was a foreseeable risk of injury did not of itself create a duty of care. G had voluntarily run the risk of sliding down the banister with informed choice, which risk unfortunately materialised. The common duty of care is set out in s.2(5) of the Occupiers Liability Act 1957. The banister was not found to be defective. The danger was created by the decision to slide, not the banister itself. The Judge found that there was no assumption of responsibility towards G on the part of the defendant.
Notwithstanding the Court noting the seriousness of G's injury the claim failed and her claim was dismissed.
Compare the above case to the decision in Reynolds v Strutt & Parker LLP (15 July2011). Briefly, the facts involved an employee ( R ) who was injured whilst cycling in a race as part of an event for all employees, organised by the employer as an activities afternoon at a country park.
At the race which involved 12 cyclists, only one participant wore a helmet. R collided with another employee's cycle during the course of the race and sustained serious brain injuries. It was contended by experts that had R been wearing a helmet then it was unlikely he would have sustained such injuries. The employer contended that the injuries had not occurred during the course of employment as participation was not compulsory. Furthermore, R was an experienced cyclist and could have chosen to use a helmet.
Was this activity during the course of R's employment in order to invoke the health & safety and work regulations?
Judge Oliver-Jones QC held that the participation in the event was not part of R's employment and the work regulations were not therefore invoked.
However, the Court found that the partners of the firm who had organised the event had breached their duty of care to the Claimant. Neither partner had the necessary skills and knowledge to make the necessary assessment and so overlooked the obvious risk of a collision occurring during the course of the race. There was therefore a clear failure to carry out a proper risk assessment as the risk of a collision and consequences were obvious. Neither partner properly assessed the need to recommend and require participants to wear helmets.
As a warning to other employers who may wish to organise similar employee events, the Court found that where people who organise events are unfamiliar with how to organise it, it was common sense to seek advice from other professionals who had the relevant expertise, in this case it was those in charge of the country park.
What if R had been told to wear a helmet but chose not to do so?
The Court found the employer should have excluded R from the race. There was a finding against the employer in negligence in its communication of information concerning the wearing of helmets. The collision had occurred as a result of R's attempt to force another employee out of the race. R was also aware helmets were available as another employee had chosen to wear one.
The court held that R should therefore be partly responsible for his own actions and was found to be two-thirds contributory negligent.
Both cases highlight obvious risks assumed by two different types of people. One a visitor to premises and the other an employee participating in a work related activity. However, the difference between the two decisions is that where someone chooses a course of action themselves whereby they assume the risk, then the defence of voluntary assumption may be available, if the assumed risk materialises. In the second case whilst participating in the event was voluntary, the 'risk of collision' whilst it may have been obvious could have been controlled by the employer as organiser of the event and the wearing of helmets should have been communicated to fellow participants as a control measure to eliminate or lower the risk to the lowest level reasonably practicable. As the partners had control over this element of the risk, primary liability was established with a high degree of contributory negligence.