Humphrey v Aegis Defence Services Limited  QBD Uren v Corporate Leisure (UK) Ltd (2013) EWHC 353 (QB)
The much lauded Compensation Act 2006 was billed as something that would free organisers of fun events from liability on the basis that it is good for society to have exciting activities going on.
Section 1 of the Act provides that in considering a claim for negligence or breach of statutory duty, the Court can consider whether imposition of a duty might discourage desirable activities taking place.
The Act has been considered in two recent employers' liability claims.
The Claimant was a former marine and a bodyguard working for the Defendant, a security company.
The Claimant's work involved close protection escort for military personnel in Iraq, including working closely with interpreters.
Physical fitness was a condition of the Claimant's contract and his fitness was regularly tested. Interpreters were also tested but were likely to be employed even if they failed a fitness test.
The Defendant organised a fitness test which involved teams carrying a man on a stretcher. The Claimant had some reservations about the fitness of one of the interpreters but the test went ahead.
During the test and without warning, an interpreter let go of one of his handles, causing serious injury to the Claimant's arm.
The Defendant accepted that it had been in control of the fitness test, and also that it owed the Claimant a duty of care.
The Court dismissed the claim and found that it was foreseeable that an unfit interpreter would drop a stretcher, but that this would cause a minor injury only.
The Court accepted however, that the Defendant's work in Iraq was a desirable activity within the meaning of the Compensation Act 2006. As interpreters were essential, it was reasonable to apply more lenient fitness standards to them because of their scarcity, and this was relevant when considering the extent of any duty of care. As the social value of the activity was sufficiently important, it justified an increased assumption of risk.
The decision perhaps rows back slightly from the comments made in the retrial in Uren. The Claimant was injured in an RAF "Health and Fun Day" when he took part in a game where participants had to run up to a shallow inflatable pool and enter it to retrieve various items. The Claimant went in headfirst and was left tetraplegic as a result.
At a retrial in 2013, Mr Justice Foskett found that:
1. The risk of serious injury arising from headfirst entry into the shallow water was more than minimal and should have been foreseen and steps should have been taken to reduce or prevent it. Given the very serious consequences from a headfirst entry, a warning was not sufficient and banning would have been a proportionate measure in the circumstances.
2. It was recognised that social events are of great value and that they always involve some risk, but the risks should be fully assessed and all proportionate steps should be taken to minimise foreseeable risks.
Mr Justice Foskett, dismissing submissions in respect of the Compensation Act 2006, stated that his decision did not put social events in danger, as long as an adequate risk assessment has been carried out and proportionate steps have been taken to avoid the risk identified.
It may be that the position changes further if the Government's so called Good Samaritan Act is enacted. Lord Edward Faulks QC, a Barrister routinely instructed by Clyde & Co has stated that "the Compensation Act has not done enough to address people's worries about liability" and it is hoped that "the Bill will do more than the Compensation Act did to increase public confidence in the law and increase participation in socially valuable activities".
Key points for defendants
- Whilst cases turn on their own facts, do not overlook the Compensation Act 2006
- Whilst it did not assist the Defendant in Uren, some Judges will have regard to its provisions, including (in certain circumstances) within the context of an employers' liability claim
- The Good Samaritan Act may yet again change the position for the better and add more protection for Defendants
- For accidents occurring after 1 October 2013, which will be subject to Section 69 of the Enterprise & Regulatory Reform Act 2013, consider whether the activity of a Defendant employer might, arguably, consist of a "desirable activity" which might be prevented or discouraged by a finding of liability.
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.