Wilson v Haden (t/a Clyne Farm Centre)

An operator of an adventure activity must take reasonable precautions against identified risks, having regard to the circumstances and the standard of care expected of a reasonably competent instructor. Internal risk assessments and training documents are significant evidence of recognised risks and appropriate precautions, although departure from them is not automatically negligence. A failure to demonstrate or properly explain a hazardous activity may constitute breach where participants may lack relevant experience. Breach must still be shown to have caused the injury. Standards governing related activities may provide useful guidance without being directly applicable. Evidence that a defendant created an increased risk is insufficient unless the court can infer that the breach caused or materially contributed to the injury.

The claimant was injured while descending a fireman’s pole forming part of an adventure course operated by the defendant. He alleged negligence, breach of the Occupiers’ Liability Act 1957, breach of contract and contributory negligence. The central issues were whether the instructor failed to demonstrate or explain the safe technique, whether the landing area was adequately protected, whether a braking device was required, and whether any breach caused the claimant’s spinal injury.

The court also assessed damages, including past and future earnings and the proposed cost of establishing a personal injury trust.

1. Liability for instruction. The instructor breached the duty of care by failing to demonstrate the use of the fireman’s pole and by giving inadequate instructions. Participants, particularly older persons who might never have encountered such an obstacle, needed to understand the importance of using their legs to control descent. The defendant’s risk assessment and Training Notes recognised the relevant risk and identified demonstration and careful instruction as appropriate controls (paras [133]-[144]).
2. A departure from the risk assessment or Training Notes was not automatically a breach. The court had to assess whether the instructor exercised the care expected of a reasonably competent instructor in the circumstances. On the facts, the failure to demonstrate and explain the technique fell below that standard and caused the accident on the balance of probabilities (paras [138]-[147]).
3. Safety standards. The standards governing playground equipment were not shown to apply directly to the course, but provided relevant guidance on appropriate impact attenuation. BS EN 15567 was not retrospective, but the operator could not simply ignore it. His BAHA obligations and knowledge of the standard required him to consider whether the existing course complied with it. The landing area failed to provide adequate impact attenuation (paras [149]-[157]).
4. The court found no obligation to provide a braking device because the free height of fall, measured on the basis that participants were climbing down the pole, was approximately 2.5 metres and below the relevant threshold (para [148]). The breach concerning impact attenuation was not causative because there was no medical or technical evidence establishing that adequate attenuation would probably have avoided or reduced the claimant’s spinal injury (paras [158]-[165]).
5. The cost of protecting the claimant’s wife’s entitlement to funding was irrecoverable because that entitlement belonged to her, not to the claimant (paras [200]-[202]). Judgment was entered for the claimant in the sum of £167,514, with interest to be assessed if not agreed (paras [203]-[205]).