Following the case of Pinchbeck v Craggy Island Ltd, insurance specialist Cordelia Rushby explains the importance of establishing responsibilities for safety when organising adventurous activities for staff or customers.
Team-building, sales conferences and corporate entertainment events have changed immensely in the last couple of decades as companies seek to make a lasting impression with their staff, sales force and customers. The incorporation of adventure activities has been a key feature of this developing industry. According to The UK Events Market Trends Survey 2012, by Eventia, almost a fifth (19%) of business events are now held in “unusual venues”
Whilst exciting and memorable, adventure sports are not without their risks to the participants and the organising company, an employer has absolute responsibility for the health and safety of their staff and this includes team-building days delegated to contactors. When choosing a venue and activity employers should:
- ensure the activities are properly risk assessed and appropriate safeguards put in place;
- research the competence of a contactor to safely deliver the service;
- independently check the contractors credentials;
- check and retain proof of the contractors public liability insurance cover; and
- obtain a contractual indemnity in the event of an injury or accident occurring.
In 2008 Halifax/HBOS bank ran a staff event at the Craggy Island indoor climbing centre, and a senior employee (a loss adjuster!) fractured her ankle after jumping from a climbing wall. The management of the climbing centre claimed they had done all that was reasonably possible to ensure the participant’s safety including;
- getting the participant to sign a "Course Acceptance Form" which included a general disclaimer that the claimant was aware of and accepted the risks inherent in climbing and mountaineering activities. The form also included a specific recommendation that users of the lower wall should climb down… "as jumping or an uncontrolled fall can result in serious injury";
- providing a verbal briefing on safety before starting the day; and
- providing training and supervision for the vast majority of the activity day.
For most of the session, the executive was climbing on a competition wall with a harness and ropes and was closely supervised by the climbing centre staff. She descended this higher wall by being lowered in the harness. For the last 10 minutes she climbed a lower wall with no harness. There was a supervisor observing, but although he saw her jump down several times, he did not intervene and did not tell her not to jump but rather to climb down.
She successfully climbed and jumped down over five feet on a couple of occasions, but when she then climbed to a higher point and jumped, she was injured and suffered compound ankle fractures.
Notwithstanding all the written guidance and prior instruction, the High Court held that Craggy Island Ltd had failed in its duty to provide ‘appropriate supervision and instruction’ on how to descend the lower wall and did not clearly instruct the lady not to jump down at any time.
The court also rejected the suggestion that the claimant had voluntarily accepted the risk. It concluded that the she had not freely chosen to jump down accepting the risk of injury, because to have accepted that risk, she must have been aware of the lack of appropriate instruction and supervision and she was not. Had she been aware of the correct safety procedures and still jumped, that defence might have succeeded.
The court awarded damages to the bank executive in compensation for her injury, to be paid by the insurers of the climbing centre. The damages were reduced by one third to reflect the claimant’s own contributory negligence in choosing to jump, not climb down.
This High Court case highlights the following key lessons:
- Ensure you have acted reasonably in appointing contractors and have secured a contractual indemnity in the event of an accident and injury due to the negligence of the contractor.
For activity centre operators
- A general disclaimer willnotprovide an effective defence in most injury cases – even where a claimant has themselves acted negligently. If you find yourself tempted to use one, identify the risk and manage it better so that it is extinguished or reduced to an insignificant level instead.
- A person cannot be said to have accepted a risk unless they fully understand the nature of the risk and how it arises.
- It is important that the training is not done half-heartedly. It should be active and done for the entirety of the attendance.
- Policies and procedures should be established and reviewed regularly to ensure that instructors understand their responsibilities towards assessing the competence of participants in hazardous activities and that they provide clear and comprehensive instructions.
- Policies need to be documented and signed off by participants.
- Instructors need to be carefully vetted and their qualifications recorded.
Cordelia Rushby has 20 years’ experience defending claims for employers, sharing feedback, providing staff training, and helping to reduce further accidents and claims. Cordelia can be nominated to your insurers to personally handle claims and litigation arising out of accidents at work, occupiers liability and breeches of health and safety law. To find out more about how you can make your employer’s or public liability insurance work harder for your company please contact Cordelia Rushby.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.