Carter v Kingswood Learning and Leisure Group Ltd

In a personal injury claim alleging negligent supervision of an abseiling exercise, the claimant must establish both the injury-causing event and the act or omission said to constitute negligence. Where the alleged injury depends on a particular mechanical failure in the safety system, the claimant must prove that mechanism on the balance of probabilities. A neck jerk during an activity does not establish breach where the evidence does not show that it resulted from negligently permitted slack in the safety rope. Sympathy for serious injury cannot replace proof of breach of duty.

The claimant suffered a vertebral artery dissection followed by a stroke after participating in an abseiling exercise at the defendant’s outdoor activity centre. She alleged that, during the transition from a sloping access ramp to a vertical face, her body flopped backwards because the safety rope had become slack. She contended that the slack resulted from the operation of the abseiling system and negligent supervision by the defendant’s instructor.

The defendant disputed both the alleged mechanics of the incident and the causal connection with the vertebral artery dissection. The court therefore determined liability, including whether the claimant had proved a negligent failure in the supervision system.

1. Claim dismissed. The claimant established that she probably experienced some jerk to her head or neck during the abseiling exercise, but did not establish that her upper body flopped backwards in the manner alleged.
2. The pleaded mechanism required two matters: the brake on the main abseil rope had to be applied, and slack had to be created in the safety rope either by the instructor feeding rope through the Italian hitch or by the claimant pulling the safety rope towards herself. The first mechanism was unsupported by evidence and was no longer pursued.
3. The evidence did not establish the second mechanism. The claimant described a continuous descent and did not say that she applied the brake or pulled on the safety rope. The judge considered it unlikely that she would have done either. The instructor’s evidence also indicated that any pull on the safety rope would have been immediately apparent and could have been addressed.
4. The abseiling system itself was not intrinsically defective. The absence of neck support was normal for the exercise, and no criticism was made of the tower’s design. The instructions given to the claimant were adequate.
5. Since negligent slack in the safety rope had not been proved, breach of duty was not established. It was therefore unnecessary to decide whether the neck jerk caused the vertebral artery dissection.
6. For completeness, the judge stated that, had the causation issue required determination, the medical evidence and the early report of a neck jerk would have led him to conclude, on a bare balance of probabilities, that the jerk constituted minor neck strain which caused the dissection. That conclusion was obiter.