Description
Personal Injury / Tort / Socially Beneficial Activity / Liability / Foreseeability / Duty of Care / Risk of Serious Injury / Negligence
The claimant suffered a significant spinal injury, resulting in permanent tetraplegia, in an accident which occurred in the course of throwing a wellington boot backwards through his legs at an outdoor pursuits centre operated by the defendant.
Held: i) The acceptable degree of risk of a socially beneficial activity is a question of fact, degree and judgement decided on the particular circumstances of the case (Barnes v Scout Association [2010] EWCA Civ 1476); ii) Although risk assessments provide an opportunity for an intelligent and well-informed appraisal of risk, they are not a panacea and are more effective in relation to static conditions or activities routinely repeated. They may be a less effective tool where many variables come into play (Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ 66); iii) The standard of care is an objective test of reasonableness which should take into account the circumstances and characteristics of the person or persons at risk; iv) The enquiry as to reasonable foreseeability of damage cannot be separated from the question of what is reasonable to do in light of the reasonably foreseeable risk (Berent v Family Mosaic Housing and London Borough of Islington [2012] EWCA Civ 961). The risk which needed to be foreseen was the risk of serious injury and not just the risk of injury.
In this case, there was no foreseeable real risk of serious injury and a dynamic risk assessment was acceptable: a formal risk assessment was not decisive due to the many variables connected with the particular facts. This was a tragic and freak accident for which no blame could be established. The evidence of its likelihood was at most a mere possibility which would never influence the mind of a reasonable man. As such, the social utility of the activity which gave rise to the incident did not fall to be considered.
