Uren v Corporate Leisure (UK) Ltd & Anor

A risk assessment for a competitive physical activity must identify all reasonably foreseeable methods by which participants may attempt to perform it. The assessment must consider the degree of risk of serious injury, including catastrophic injury, rather than treating the seriousness of the possible outcome as equivalent to the likelihood of its occurrence.

Where a more than minimal risk of serious injury is foreseeable, those responsible must consider a proportionate response in light of the activity’s social value. A clear warning may suffice in some circumstances. Where expert evidence establishes that a definite prohibition is the simplest and most effective precaution, failure to prohibit the dangerous method may constitute breach of duty.

The claimant, an RAF serviceman, suffered tetraplegia after entering an inflatable pool headfirst during a competitive relay game at a Health and Fun Day organised by the Ministry of Defence and supplied by Corporate Leisure (UK) Ltd.

The original trial resulted in judgment for the defendants: [2010] EWHC 46 (QB). The Court of Appeal ordered a retrial confined to the degree of risk of serious injury presented by the game as played and whether that risk was acceptable having regard to the game’s social value: [2011] EWCA Civ 66. The central issues were whether headfirst entry ought reasonably to have been foreseen and what precaution, if any, was required.

1. Outcome. The claimant succeeded against both defendants. Apportionment of liability and damages were left to be agreed or assessed by the court.
2. Foreseeability and risk assessment. A proper ex ante assessment had to consider how the game would actually be played in a competitive relay environment. Headfirst entry over the approximately one-metre pool wall was a natural and foreseeable method of entry. The defective assessments failed to address it. The court’s task was to assess the risk of serious injury, not merely the risk of minor injury.
3. Degree of risk. The risk was more than minimal. A participant could lose control while crossing the wet, yielding and curved pool wall, or be affected by other competitors. The resulting trajectory could cause an unprotected head impact with the hard surface beneath the pool. A cervical fracture and paralysis were recognised consequences of the relevant type of headfirst impact. The precise mechanism of injury did not need to have been foreseen.
4. Proportionate precautions. The game had substantial social value, particularly in a Services setting, but that did not justify ignoring a real risk of catastrophic injury. A strong warning might have been sufficient in other circumstances. On the expert evidence in this case, prohibiting headfirst entry was the simplest and cheapest effective precaution and would not materially have diminished the game’s enjoyment. The failure to impose that rule was therefore negligent.
5. Dynamic assessment. The court observed that those responsible should in principle have been prepared to intervene during the event. However, the evidence did not establish that the game was so obviously dangerous at the time that intervention before the accident was required. The operative failure occurred earlier, in the inadequate ex ante assessment.

• High Court (Queen’s Bench Division): the original trial resulted in judgment for the defendants: [2010] EWHC 46 (QB).
• Court of Appeal: the claimant’s appeal was allowed and a retrial was ordered on the degree of risk and its acceptability in light of the game’s social value: [2011] EWCA Civ 66.
• High Court (Queen’s Bench Division): on the retrial, the claimant succeeded against both defendants.