Adding to the burgeoning canon of cases in which courts have accepted that accidents do happen and that not every injured Claimant has a right of redress against someone is the decision of His Honour Judge Freedman in Harrison v Intuitive Business Consultants Limited & Others [2021] EWHC 2396 (QB).
The Claimant was a participant in a Bear Grylls Survival Race, a themed obstacle and survival event which provides 5 or 10km courses comprising a mixture of obstacles and survival challenges combined with other events such as music and entertainment. The obstacle races are designed for people with a range of abilities from novice to seasoned competitor and participants may take a forfeit (a bear-crawl exercise) instead of participating in any obstacle. The First Defendant was the overall organiser and the entity to whom the Claimant paid her entrance fee. The Claimant was participating in one of four events across the country on the day in question and, while attempting an elevated monkey ring obstacle ("the Jungle"), fell to the ground suffering serious injuries to her right leg and right shoulder.
The Claimant alleged that the First Defendant was in breach of the duties it owed her under s.2 of the Occupiers Liability Act 1957 on the basis that it had failed to take reasonable care for her safety. The First Defendant denied both liability and causation, alleging also that if primary liability was established the Claimant ought to be held contributorily negligent. The Second Defendant and the Part 20 Defendant were subcontractors to the First Defendant, but their position would only become relevant in the event of a finding against the First Defendant.
The First Defendant’s position was that it had discharged its duty of care to the Claimant by providing an obstacle course “which was designed, constructed and maintained so that it was reasonably safe for participants to engage in the activity. In other words, unless there was a defect in the design of the Jungle or its construction (which there was not) the First Defendant could not be liable for the Claimant’s accident. The Judge confirmed that the duty on the First Defendant was to take reasonable care for the safety of the participants in the event, not to put in place every possible safety measure.
Before participating, the Claimant signed a waiver but, as the Judge said, “It is, of course, trite law that liability cannot be excluded where personal injury has been caused as a result of negligence on the part of the occupier”
The court spent some time considering the obstacle from which the Claimant fell and it is interesting to note that the evidence was that, as the Judge said “Virtually every witness from whom I heard, who attempted the challenge, fell off one or other of the rings before reaching the end.” The Judge viewed the obstacle course as particularly challenging and noted that only one witness (a veteran of over 100 obstacle races who viewed the monkey rings as their favourite obstacle) completed the course.
The risk assessments relating to the Jungle were viewed as important and considered carefully. The Claimant’s case was that the First Defendant had failed to implement the control measures identified in the assessment whereas the First Defendant contended that there was full compliance and, even had there been a failure to put the control measures in place, as a matter of law, that did not constitute a breach of duty.
A key question was whether the Claimant had been advised to enter the Jungle from a seated position, reducing the strain which would be placed on her arms and shoulders on starting the obstacle. The Claimant had attended a warm up followed by a pre-race briefing, recalling being told that if a participant did not wish to attempt a particular obstacle they could take a forfeit instead. Whilst she did not recall a marshal being on the Jungle obstacle or hearing any instruction, the court accepted the evidence of a marshal who was seen on the Jungle in photographs and who gave instructions to participants to set off from a seated position, albeit it was not possible for the marshal to give specific instructions to each and every participant.
When she started to use the monkey rings, setting off from a standing position, the Claimant held the first but lost her grip as she moved to the second ring, falling to the ground suffering severe injuries.
In submissions on the Claimant’s behalf, much was made of an alleged failure to properly learn from accidents at earlier events, though the Judge identified the core of the Claimant’s case as being “that there was a failure properly to implement their own risk assessment.” Whilst it was said that participants should have been told to start the rings from a seated position (and the Claimant asserted that no such instruction was given), the court determined that the duty on the First Defendant was to give instruction but not to mandate that the participants followed that instruction; the evidence of the marshal that she gave instruction was accepted by the court.
Given the Judge’s findings on whether any instructions were given, the issues of factual causation and contributory negligence became academic. However, the Judge said that “even if I had been satisfied that appropriate instruction had not been given, I would not have found that the absence of such instruction was causative of this accident.” The Judge also concluded:
The reality is that the majority of participants fell off the monkey rings at some stage during the course of the obstacle; and they fell whether they started from a sitting or standing position. The vast majority, of course, suffered no injury but, in the end, it is a matter of chance as to how well or badly an individual may land on the ground. In any event, since, as I find, the accident occurred not on the first ring but as the Claimant was grasping the second ring, any connection between her departure from the platform in a standing position and her injuries can best be described as tenuous. Certainly, it cannot be said that setting off from a standing position either caused (as a matter of probabilities) her to fall or to suffer more serious injury than otherwise would have been the case.
Interesting, the Judge noted that had liability been established he would have made no finding of contributory negligence. The Judge summed up the case:
This was a most unfortunate accident resulting in very serious injuries. It goes without saying that the Claimant is deserving of much sympathy. I am satisfied, however, that her accident and the resultant injuries were not occasioned by any fault on the part of the Defendants. Accidents of this type are an inherent risk of participation in activities such as obstacle races; and no amount of care and vigilance on the part of the organisers and planners of such events can eliminate the possibility of such risks materialising from time to time. The Claimant elected to participate in the Bear Grylls Race and, whilst, of course, she did not expect to suffer any injury when doing so, nevertheless, it was a risk of which she was well aware when she registered for the event and signed the indemnity. Her confidence in her ability to complete this obstacle was not misplaced; it was simply a matter of grave misfortune that she was the victim of a serious accident.
Tragic though the circumstances of this accident were for the Claimant, the decision of the court recognises that sporting and leisure activities have inherent dangers and that the removal of all risk and danger is impossible: indeed it can be these inherent risks that make them attractive in the first place. Even if it were to be possible to completely de-risk an outdoor or sporting activity would that really be what participants want?
This decision, along with those in, to name but a few, Dougan v Bike Events Ltd (High Court) (Manchester District Registry) [11 June 2021] and Wells v Full Moon events and others [2020] EWHC 1265 (QB), show the courts prepared to recognise the inherent dangers in events and look critically at whether a Defendant has been at fault or if what the Claimant has suffered is an accident which is one of the exigencies of life and not the fault of anyone.
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