This is a common headline in the popular press but is it really the case that health and safety legislation is out of control and that the country is gripped by a compensation culture?
Andrew Peters of Bott and Co. Solicitors thinks not and cites the recently decided case of Cornish Glennroy Blair-Ford –v- CRS Adventures Limited (2012) as evidence that the Courts adopt a balanced and sensible approach when considering whether liability attaches to a Defendant (“D”) in a particular set of circumstances.
In this particular case the Claimant (“C”) sought damages for personal injury from D (an outdoor pursuits company). C was a teacher who, with other staff and pupils, had attended a Residential Activity Centre course operated by D. On the last day, D’s staff had organised a “Mini Olympics” event. An activity within the Mini Olympics was a game of “welly-wanging”. The object of this game was to toss a wellington boot as far as possible. In order to make the event fairer for pupils participating C was told to throw the wellington boot backwards through his legs. C put a lot of effort into his throw but unfortunately when he let go of the boot he rotated forward and his head hit the ground causing him to suffer a catastrophic spinal injury resulting in permanent tetraplegia.
C contented that D was liable for his injuries because its staff had asked him to adopt a method in throwing the wellington boot that was unsafe. He submitted his injury was a logical and foreseeable consequence of throwing it in that way and that D owed him a duty to exercise reasonable skill and care in the conduct of its activities. His case was that D had breached that duty by failing to conduct any adequate risk assessment. He further argued that if a risk assessment had been conducted the method of throw would have been modified.
unfortunately when he let go of the boot he rotated forward and his head hit the ground causing him to suffer a catastrophic spinal injury
In response, D’s contention was that the “welly-wanging” had been subject to a dynamic risk assessment and that no further action was identifiable. It asserted that the accident was a chance event and that neither it, nor any similar accidents causing serious injury could have been foreseen.
In finding against C the Court commented that the law should not stamp out socially desirable activities just because they carried some risk. Whilst risk assessments were an important feature of the health and safety landscape, providing an opportunity for an intelligent and well informed appraisal of risk and a blueprint for action leading to improved safety standards, they might be a less effective tool where a lot of variables came into play. The standard of care was an objective test of reasonableness which should take into account the circumstances and characteristics of the persons at risk.
It was recognised that D ran an efficient and professional operation for the benefit of the public and schoolchildren in particular. It was an enterprise which provided immense social value. It had been correctly licensed and monitored and its systems had been complimented by regulators. Save for C’s accident, its safety record was excellent and there had been no other recorded incidents in relation to “welly-wanging”.
It will be interesting to see whether the popular press report this case as one where existing health and safety legislation was intelligently interpreted by the Courts
Whilst there had been a formal risk assessment of the event as a whole there was no formal assessment and no advanced plan as to the method for handicapping teachers before the “welly-wanging” began. That was not, however, decisive. It was held that formal risk assessments were probably more effective in relation to static conditions or activities which were repeated in a fairly routine way, and might be a less effective tool where lots of variables came into play, as in the instant case. It was held that the dynamic risk assessment was acceptable and that there was no foreseeable real risk: it was a tragic and freak accident for which no blame could be established.
It will be interesting to see whether the popular press report this case as one where existing health and safety legislation was intelligently interpreted by the Courts or, alternatively, whether they wait for a case where the Claimant is successful in order to generate the usual scaremongering headlines.
The coverage of Harris v Perry & Perry (2008) tends to suggest the latter is more likely. In Harris, C (a child) was seriously injured whilst playing on a bouncy castle hired for a birthday party. C’s claim against the operators of the bouncy castle was initially successful and he was likely to be awarded damages of around £1m. This decision received widespread media attention after if was delivered in the predictable “the world’s gone mad” genre. Later that year, however, the Court of Appeal overturned the initial decision and found against the C who therefore recovered nothing but little was heard in the popular press in relation to the revised finding.
About The Author
Andrew Peters is a solicitor who specialises in civil litigation with a particular emphasis on personal injury and consumer rights. He is a member of both the Association of Personal Injury Lawyers (APIL) and the Law Society.
Andrew has extensive experience across a wide range of civil litigation matters including personal injury, breach of contract, product liability and aviation. He is involved in the day to day management of Bott and Co and sits on the Practice Management Board.