Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton

An adult of full capacity who voluntarily undertakes a leisure activity involving inherent and obvious risks will ordinarily receive no protection against those risks from the occupier or operator. This includes no general duty to prevent the activity, provide training or supervise it, unless there is no genuine and informed choice or the defendant has assumed responsibility for safety. A suitable safety surface does not make the obvious risk of serious injury from an awkward fall latent. Expert guidance may identify safety measures, but the balance between risk and individual autonomy is for the court to assess.

Gary Poppleton was seriously injured while attempting an unsafe manoeuvre during unsupervised indoor bouldering at premises operated by the appellant. The first-instance judge rejected claims under section 2 of Occupiers Liability 1957 and the Occupiers’ Liability Act 1984. The judge also rejected proposed duties to assess competence, provide training or supervise, but found a breach of duty to warn that the safety matting might not prevent serious injury. Judgment was entered for 25% of the claimant’s loss, with 75% contributory negligence.

The appellant challenged the warning finding. By respondent’s notice, Mr Poppleton challenged the scope of the duty and the apportionment of responsibility. The central questions were whether the risk remained inherent and obvious despite the matting, and whether the operator owed a duty to train or supervise adult participants.

Lord Justice May gave the reasons for judgment. Lord Justice Richards and Sir Paul Kennedy agreed.

1. Duty to train or supervise. The principles in Tomlinson v Congleton Borough Council [2004] 1 AC 46 applied. A person of full capacity who voluntarily undertakes an activity involving inherent risks will ordinarily be left to bear the consequences of that choice. The law does not generally require an occupier to prevent the activity, train the participant or supervise it. A duty may arise where there is no genuine and informed choice, or where the defendant has assumed responsibility for the claimant’s safety. The cases of Fowles v Bedfordshire County Council [1996] ELR 51, Perrett v Collins [1998] 2 Lloyds LR 255 and Watson v British Board of Control [2001] PIQR 16 illustrated circumstances involving assumption of responsibility or regulatory control.
2. Obvious and inherent risk. The risk of falling from the wall was obvious. It was also obvious that no amount of matting could eliminate the possibility of serious injury from an awkward fall. The matting reduced the likely severity of injury but did not create a latent danger. The claimant’s own evidence indicated that he appreciated there was some risk.
3. Expert guidance and autonomy. The advice in the Health and Safety Executive video and the expert evidence deserved proper weight, but did not determine the balance between accident prevention and individual autonomy. That balance was a judicial judgment. The approach in Evans v Kosmar Village Holidays [2007] EWCA Civ 1003 supported treating an obvious risk voluntarily undertaken as outside the scope of the duty.
4. Disposition. The finding that the matting constituted a hidden danger was unsustainable. There was no duty to warn of the obvious risk of injury from an awkward fall. The appeal was allowed and the respondent’s cross-appeal was dismissed. The contributory-negligence issue did not arise for decision.

1. Court of Appeal (Civil Division) allowed the appellant’s appeal and dismissed the respondent’s cross-appeal: [2008] EWCA Civ 646.
2. Winchester County Court, HH Judge Richard Foster, sitting as a Deputy High Court Judge, entered judgment for the claimant on 12 July 2007 for 25% of his loss and assessed him as 75% contributorily negligent.