Uren v Corporate Leisure (UK) Ltd

A failure to conduct a suitable and sufficient risk assessment does not itself establish liability. Liability follows where a proper assessment would probably have led to a precaution which would probably have prevented the injury.

When assessing whether an activity exposes participants to an unacceptable risk of serious injury, the court must consider the nature of the activity, how and by whom it is undertaken, the circumstances, the likelihood and gravity of injury, and the activity’s social value. A trial judge preferring one expert opinion over conflicting evidence must explain that preference through sufficient critical analysis. An employer’s duty to undertake a suitable and sufficient risk assessment is non-delegable, although a contractor’s thorough assessment may affect what the employer must itself do.

The appellant suffered a broken neck and became tetraplegic after entering a shallow inflatable pool head first during a competitive game at an RAF event. He claimed damages from the company which supplied and supervised the game and from his employer, the Ministry of Defence.

Field J found that both defendants’ risk assessments were inadequate. He nevertheless dismissed the claim because the game presented only a very small risk of serious injury and that risk was acceptable in light of the activity’s social value. The appellant challenged the assessment of risk and the treatment of the expert and eyewitness evidence. The Ministry of Defence cross-appealed against the finding that its risk assessment was inadequate.

The central questions were whether the judge’s conclusion about the degree of risk was sound and whether the Ministry of Defence could discharge its risk-assessment obligation by relying on the contractor.

1. Appeal allowed; cross-appeal dismissed. The judge’s conclusion that the game presented only a very small risk of serious injury could not safely stand. The action was remitted for retrial before a different High Court judge on the degree of risk, whether that risk was acceptable in light of the game’s social value and, if necessary, the apportionment of responsibility.

2. A defective risk assessment cannot directly cause an injury. It may nevertheless be indirectly causative where a suitable and sufficient assessment would probably have led to a precaution which would probably have prevented the injury. Judges must therefore examine the hypothetical consequences of a proper assessment and must not treat risk-assessment failures as immaterial: per Smith LJ at [39]–[45].

3. The reasons for preferring Professor Ball’s evidence were insufficient. The judgment did not critically examine the central disagreement over whether a fast head-first entry could be controlled with the participant’s arms. It also failed adequately to address Dr Jones’s reasoned agreement with the competing expert and may have used general spinal-injury statistics which were too remote from this particular activity: per Smith LJ at [48]–[61] and Aikens LJ at [77]–[78].

4. The impressions of eyewitnesses were potentially relevant because the game had not previously been played in this form and the experts had not observed it. The judge erred by treating those impressions as irrelevant. The expert evidence, eyewitness evidence and uncertain use of statistics together made the assessment of risk unsound: per Smith LJ at [62]–[68] and Aikens LJ at [79]–[80].

5. There is no universal legal definition of an unacceptable risk in a game. The assessment depends on the activity, its manner of performance, its participants and the surrounding circumstances. If the risk of serious injury was unacceptable, allowing participants to encounter it would readily support a finding that reasonable care had not been taken: per Aikens LJ at [75]–[76].

6. The Ministry of Defence had a non-delegable duty under regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 to undertake a suitable and sufficient risk assessment. An employer’s reliance on a contractor’s thorough assessment may affect the detail required of its own assessment, but sufficiency remains fact-sensitive. Here the contractor’s assessment was inadequate and the parties had not conferred about risk: per Smith LJ at [70]–[72].

Aikens LJ agreed with Smith LJ’s reasons and conclusions. Pitchford LJ agreed with both judgments and the proposed order.

1. Court of Appeal (Civil Division): The appeal was allowed, the Ministry of Defence’s cross-appeal was dismissed, and the action was remitted for retrial before a different High Court judge.
2. High Court, Queen’s Bench Division: Field J dismissed the damages claim after finding the risk assessments inadequate but concluding that the game was reasonably safe and that neither defendant had breached its duty of care.