A number of leisure and outdoor activities carry inherent risks, in this particular case, climbing and other so called "adrenaline" induced activities. The question for the Court of Appeal was to what extent the provider of this centre for the activity was under a duty to point out the inherent risks – check for competency, and satisfy themselves that instruction was not required.
In the case of Trustees of the Portsmouth Youth Activities Committee (a charity) v Poppleton [2008] EWCA Civ 646, the Court of Appeal stated that victims of accidents where risk is "plainly obvious" may have no claim.
The Claimant in this case, attended the Defendant's indoor climbing premises to engage in "bouldering" which is low level rock climbing without ropes. He had visited these premises a number of times previously but was a relatively inexperienced climber. The Claimant was with a group of friends, some of whom were more experienced. He was not given any instruction or asked about his ability as a climber. The Defendants, like many similar institutions, provided suitable premises and equipment leaving users to do so sensibly and without supervision.
There were three uncovered girders in the climbing room and the floor was covered with 12 inch thick matting. There were climbing walls rules on a board outside the room prohibiting jumping off walls. Having seen his friend jump off one wall to grab hold of a girder, the Claimant attempted a similar manoeuvre, which was dangerous for a novice. He landed on his head, sustaining severe spinal injuries.
At first instance, the court held that there had been no breach of the Occupiers' Liability Act 1957 as there was nothing wrong with the premises. Also, it was not reasonable to impose a duty of care upon the Defendant to assess the Claimant's competency as a climber or to provide training or supervision before allowing him to use the facility. However there was a duty at common law to inform the Claimant about the dangers of falling onto the matting, so that he was not misled into believing that it was safe to fall off the wall as there was matting in place. The Judge held the Claimant 75% to blame, as he had carried out a dangerous manoeuvre beyond his capabilities.
The Defendants appealed and the Claimants cross-appealed, on the basis that the Judge should have found that the scope of the Defendant's duty was greater than he did. The Court of Appeal unanimously overturned the high court ruling stating that it was obvious that no amount of matting would avoid the possibility of injury arising out of an awkward fall.
On the issue of whether there was a duty to train or supervise, the Court of Appeal considered Tomlinson v Congleton Borough Council [2003] UKHL 47. This was a case concerning a Claimant who had dived into the shallow end of a lake, despite notices prohibiting swimming in the lake. The Claimant, who was a trespasser, landed on his head and sustained injuries. The Court of Appeal had found that the Local Authority, who were the owners and occupiers, owed the Claimant a duty of care under s.1 of the Occupiers Liability Act 1984. They successfully appealed, and Lord Hoffman, in his judgment, stated that Mr Tomlinson suffered his injury because he chose to indulge in activity, which had inherent dangers. He was a person of full capacity voluntarily engaging in an activity, which had an inherent risk. Lord Hoffman said that is would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake. A duty to protect against obvious risk or self inflicted harm exists only in cases in which there is no genuine or informed choice.
In Poppleton, Lord Justice May considered that it was: "...quite obvious that no amount of matting will avoid absolutely the risk of possibly severe injury from an awkward fall and that the possibility of an awkward fall is an obvious and inherent risk of this kind of climbing."
In allowing the appeal May LJ stated: "There being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not in my view require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so. If the law required training or supervision in this case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carry with them a degree of obvious inherent risk – as for instance bathing in the sea."
The law, as it now stands, does not require a Defendant to prevent a Claimant from engaging in such an activity or to provide training or supervision, where the risks are inherently obvious.
This case is a natural extension of the principles from Tomlinson applied in a slightly different environment. In Tomlinson the Claimant chose to dive into a lake not knowing its depth and in this case the danger was more obvious namely a climbing wall. An analogy was drawn in the Poppleton case to the hiring of mountain bikes or skis, which suggests a level of dangerous outdoor activity. Is there a line in the sand where the Courts will say that the equipment should not be hired without the provision of tuition? Or at least satisfaction of the person's qualification to use such equipment. Frequently a regulatory body will require a level of qualification before the hirer is allowed to release the equipment for example car and scooters, but in the case where there is no regulatory body or such requirement, one wonders whether at any point the Court will require the hirer to adopt a duty of care.
This case is also useful in demonstrating personal responsibility, however dangerous activities will often include the provision of supervision and/or training, and in those cases the defendant may still have legal redress, should the provision of those services fall below an acceptable standard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
