Can potential enjoyment of an activity outweigh the risk of injury?

A recent High Court decision suggests that the courts are willing to balance the potential risk of an activity against the loss of enjoyment that would result if it were to be curtailed in the interests of health and safety. The claimant had an accident during a health and fun day event at an RAF base. One of the games involved team members running up to an inflatable pool, getting in and collecting a piece of plastic fruit floating in or under shallow water.

The claimant, a senior aircraftman, had launched himself into the pool head first, hitting his head on the bottom of the pool and fracturing his mid-cervical spine in three places. He was rendered a tetraplegic and confined to a wheelchair.

The claimant issued proceedings against: the company hired to run the event; the Ministry of Defence, the claimant’s then employer; and the company representing the event organiser’s public liability insurer’s interests. It was alleged that the event organiser and MoD were in breach of their duty to take care to ensure that he was safe when taking part in the game; it was foreseeable that the competitors would adopt his method of entry and that an injury would result.

The Court found that the risk of serious injury posed by the pool was very small and that the existence of such a small risk did not mean the defendants were in breach of their common law duty of care towards the claimant. The Court acknowledged that such enjoyable competitive activities were almost never risk-free and stated that a balance had to be struck between the level of risk involved and the benefits of the activity to the participants and society in general.

The Court found that neither the event organiser nor the claimant’s former employer were obligated to neuter the game of much of its enjoyable challenge by prohibiting head-first entry. The claimant’s claim for damages therefore failed.

So what does this mean for insurers? The courts will not necessarily make a finding of liability against operators of potentially hazardous activities if defendants can show that it is not possible to remove or guard against an inherent risk without removing the benefit or enjoyment of a competitive activity. The potential risks of an activity must be weighed against the measures by which such risks could be minimised, before deciding whether such precautions would be unduly detrimental to the benefits of the activity in question.

Lisa Sheriston is a public sector associate at Langleys Solicitors.