A review of the recent decision in Harrison v Intuitive Business Consultants Ltd (1)
A personal injury claim pursued by a competitor in the Bear Grylls Survival Race “the race” who fell from one of the obstacles during the race had their claim dismissed. The organisers had given an appropriate instruction as to what position to adopt when on the obstacle and accidents were an inherent risk of participation in such races.
The Claimant, a competitor in the race, sought damages for personal injury and consequential loss after falling from an obstacle.
The obstacle in question was an elevated ‘monkey ring’ which required holding and swinging from one ring to another whilst being suspended above the ground. The first Defendant (Intuitive Business Consultants) was the overall organiser of the event. The second Defendant (Beyond the Ultimate Ltd) were subcontractors.
Prior to the event a risk assessment of the monkey rings had identified two hazards:
- There was a risk of a hard landing when dismounting from the initial monkey rings. It was identified this could be reduced if staff brief the competitors to reach for the monkey rings from a seated position as opposed to swinging from a standing start.
- There was an increased risk of injury when falling from the rings if the hay covering the landing surface had become disturbed between competitors. This could be reduced by staff re-distributing the hay between competitors passing through.
The Claimant alleged that she had started the monkey ring obstacle from a standing position as she had not been informed to adopt a seating position and further alleged that the hay had not been appropriately distributed to provide a softer landing.
The claim was dismissed.
Whilst the Defendants were obliged to give an instruction (to reach for the rings from a seated position), it did not follow that they were required to speak, individually, to each participant and to satisfy themselves that each individual had received the appropriate instruction. It was sufficient for the instruction to be given generally to those standing on the platform waiting to set off on the rings. In weighing up the competing evidence, on the balance of probabilities the instruction was given.
Although none of the Claimant’s witnesses had observed the hay being redistributed, it did not follow that that had not happened and there was no reason to doubt the evidence of a marshal that they had been vigilant about doing it. In any event, even if it could be demonstrated that there was a culpable failure to redistribute the hay, it had not been established that that failure had any causative potency in the context of the accident.
A failure by the Defendants to give the appropriate instruction, even had that been the court’s finding, would not have been found to have caused the accident. Most participants fell off the monkey rings at some stage, whether they started from a sitting or standing position. It was a matter of chance as to how well or badly they landed on the ground.
In any event, since the accident occurred as the Claimant reached for the second ring, any connection between her departure from the platform in a standing position and her injuries was tenuous. It could not be said that setting off from a standing position either caused her to fall or to suffer more serious injuries than otherwise would have been the case.
Once the Defendants had stipulated in their risk assessment that instructions must be given to all participants to swing out from a seated position, they had assumed a responsibility to give such instruction. They owed a duty of care under the Occupiers’ Liability Act 1957 (OLA) s.2 to give that instruction but not to mandate that the participants adopted a seated position. Additionally, the Defendants owed a duty to provide a reasonably safe landing surface in the event that a participant fell from the monkey rings.
It was concluded that the Claimant’s accident and ensuing injuries were not occasioned by any fault by of the defendants. Accidents were an inherent risk of participation in obstacle races; and no amount of care and vigilance by the organisers could eliminate the possibility of such risks materialising from time to time. The Claimant had elected to participate in the race and had been aware of the risk of injury when she registered and signed a waiver form. It was simply a matter of grave misfortune that she had been the victim of a serious accident.
Whilst the Defendant in this case clearly owed the competitors a duty of care to take reasonable care to protect against injury, even the most judicious and shrewd event organisers could not eradicate all risks entirely. It is indeed arguable that there is an intrinsic and clearly foreseeable risk of injury from the outset for competitors which tallied with the Judge’s findings that the Defendant had met the obligations required of them and the Claimant awarded no recompense.
An earlier case referred to in the judgment was that of Poppleton (2), this case concerned a Claimant using a climbing wall. In that case the Court found that the law did not require the Defendant to prevent the Claimant from engaging in the activity nor was it required to train or supervise him whilst he did it. If the law required training or supervision in the instant case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carried with them a degree of obvious inherent risk. It was extremely rare for an occupier of land to be under a duty to prevent people from taking risks which were inherent in the activities that they freely chose to undertake.
A more recent case specifically relevant to the leisure industry was that of Whittet v Virgin Active. The Judge in this matter referred to gyms as “risky places” and that the Claimant had chosen to undertake the activity [using a treadmill by jumping on and off it] voluntarily. The Claimant alleged the gym had failed to provide adequate supervision and breached their obligations under s2 of OLA 1957.
The Defendant in Whittet argued that there is an obvious and inherent risk of falling on a treadmill. The Judge found that given the Claimant was jumping on and off the treadmill, which was a ‘new trend’, there were inherent and obvious risks in the activity voluntarily undertaken. As such the law did not require the appellants [the Defendant gym] to prevent the Claimant from undertaking it, nor to train or supervise the Claimant whilst she did.
The decisions in the above cases show a reluctance of the Court to find that the Defendants were liable for the injuries sustained by the Claimants during voluntary leisure activities that pose an obvious and inherent risk. Whilst the circumstances and specific facts of each case are niche there are general and overarching principles in the judgments that will be relevant for a number of institutions.
It is clear that multiple risk assessments being conducted and a consideration of how to take steps to reduce risk is key. Another absolutely imperative consideration are waivers signed prior to participating in leisure activities. There is always the chance that some Claimants will seek to disapply a waiver under the Unfair Contract Terms Act of 1977 and argue they are not legally binding. However, the recent case law would indicate they are well worth obtaining in any leisure activity which might give rise to some level of unavoidable risk. In the example of gyms perhaps as part of the new member signing up documentation.
Ultimately the Courts’ approach appears to be that individuals who voluntarily participate in fitness/leisure activities and exercise must accept that there will always be a degree of unavoidable risk. Should one of those risks manifest the Claimant may encounter a high threshold to overcome to establish those injuries were caused by anyone but themselves and that they were indeed inherent and foreseeable.
- Harrison v Intuitive Business Consultants Ltd (t/a Bear Grylls Survival Race) Intuitive Business Consultants Ltd (t/a Bear Grylls Survival Race) v Beyond the Ultimate Ltd – 26 August 2021 –  EWHC 2396 (QB)  8 WLUK 187
- Poppleton v Trustees of the Portsmouth Youth Activities Committee –  P.I.Q.R. P1
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