Cornish Glennroy Blair-Ford v CRS Adventures Ltd

Liability in negligence depends on whether the defendant failed to take reasonable precautions against a foreseeable real risk, assessed objectively in the circumstances. A risk assessment must address the activity actually undertaken, including material changes made dynamically on site. A formal written assessment is not invariably required, particularly where variables arise during a recreational activity. The court must balance the likelihood and seriousness of harm against the difficulty, cost and social utility of precautions. On the evidence, the particular combination of force, posture and fall that caused the injury was not reasonably foreseeable. The accident was therefore a tragic possibility rather than a foreseeable real risk, and the claim failed.

The claimant suffered catastrophic spinal injury while participating in a welly-wanging event at an outdoor pursuits centre operated by the defendant. He alleged that the defendant’s instructors negligently directed him to throw a Wellington boot backwards through his legs without adequate risk assessment, warning or instruction. The defendant contended that the event had been reasonably assessed, that a dynamic assessment was appropriate, and that the accident was unforeseeable. The trial was confined to liability. The central issues were whether the method of throwing created a foreseeable risk of serious injury and whether reasonable precautions should have been taken.

1. Applicable principles. The common law and Compensation Act, s 1, require the court to avoid discouraging socially desirable activities merely because they carry some risk. The standard of care remains an objective test of reasonableness, taking account of the circumstances and characteristics of those at risk.
2. Risk assessment. The Mini-Olympics, including the particular method of throwing, required risk assessment. However, the absence of a formal written assessment or advance plan for handicapping the teachers was not decisive. Given the variables involved, a dynamic on-site assessment was acceptable. Risk assessments are important, but they are not a panacea.
3. Foreseeability and precautions. The relevant inquiry was whether there was a foreseeable real risk of serious injury and, if so, what reasonable steps should have been taken. The likelihood and consequences of harm had to be weighed against the burden of precautions and the social utility of the activity.
4. Application. The instructors had considered the method and reasonably concluded that it presented no risk of injury. The claimant’s throw involved an unusual combination of considerable force, very low bending, his head positioned near his knees, his hands remaining between his legs, and impact on his head and neck. That combination was not foreseeable. The evidence of numerous previous throws without falling or injury supported the conclusion that the risk lacked sufficient reality to influence the mind of a reasonable person.
5. Disposition. No breach of duty was established. The claim was dismissed and judgment was entered for the defendant.