Posted: Friday 14 January 2011
Extreme sports are growing in popularity in Scotland. By their very nature, such sports carry with them risks to the participants. When those risks manifest and injuries are sustained, who is liable to pay damages for those injuries?
Can the company providing the equipment or location for the sport be found liable for any injuries which are sustained? Over the past few years the English courts have had to decide who is liable for injuries sustained when extreme sports go wrong. While there are differences between English and Scots law in this area, the English cases are helpful to consider as guidance on what approach the Scottish courts may take.
There is more than one ground on which a company or individual could be found liable for an accident in an adventure sport setting. The first would be as an occupier of the land on which the accident took place. Occupiers have a duty of care to those who enter their land. An occupier could be the owner of the land, or it could be someone who has control of the land. Companies operating adventure sports facilities have a duty of care to those who enter their land, both people participating in the sports offered and those watching them.
An example of a situation where an occupier has been sued is the case of Poppleton –v- Trustees of Portsmouth Youth Activities Committee the claimant was “bouldering” at an indoor climbing centre when he fell and sustained an injury. The charity which operated the facility provided the premises and equipment but did not provide the claimant with any training, nor did they check how competent a climber he was before allowing him to go “bouldering”. However, the court held that the risk of falling was plainly obvious. The law did not require the charity to prevent the claimant from using the climbing facility unless he could prove he was competent at doing so. The court did hear in this case that there was a set of rules displayed on the premises. The decision was not affected by the content of those rules, but the court did suggest that they ought to have been in a more prominent place.
Another case which was brought against an occupier, but which was also unsuccessful, is the case of Tomlinson –v- Congleton Borough Council & Another, which was also heard in England. The accident happened in a park. There were notices up forbidding people from swimming in the lake. Mr Tomlinson chose to ignore them and he dived into the murky shallow water of the lake and sustained an injury. It was held that the accident did not happen as a result of the state of the premises (for which the occupiers would have been liable), but because of Mr Tomlinson’s own misjudgement in diving into too shallow water. As a result, the occupiers were not liable.
The occupiers in these examples were not liable when the facts of the specific accidents were considered. However, an occupier could have been found liable if the accidents had occurred as a result of the state of the premises.
Employers could be found liable for accidents which happen to their employees while participating in extreme sports in the course of their employment. Employers owe a duty of care to their employees. There are many different scenarios in which this could occur. One such example was the case of The Ministry of Defence –v- Radclyffe. The Ministry of Defence were held liable for an accident to one of their officers, which happened when he was diving into a lake from a high bridge. Mr Radclyffe was an employee at the time of the accident. His Captain had encouraged him to jump from the high bridge, despite the fact it was dangerous. The Captain was responsible for the safety of more junior officers, including Mr Radclyffe. He breached his duty of care to them in allowing them, and indeed encouraging them, to jump from the bridge.
This case identifies an important aspect of employer’s liability; that the employer is liable for errors made by their staff, such as the Captain in that case. If you employ instructors, it is important to ensure they are properly qualified and well trained in health and safety so that they do not breach any duties of care to those under their supervision.
Liability under the common law
As well as the two specific scenarios set out above, a party can also be held to be liable if they are in breach of a common law duty of care. An example illustrates the potential scope of this duty.
The claimant was injured in an accident on a ski holiday. The holiday company provided ski lessons. On the final day of the ski lessons, the instructor took the group off-piste. Some members of the group were not sufficiently competent to ski on the off-piste slope, and one of them fell and sustained a serious injury. It was held that the instructor failed to assess the ability of the group to manage the off-piste slope he took them down. It was foreseeable that an accident would happen as a result, particularly as there were trees on the slope. The instructor had breached his duty of care to the man who was injured. As a result, the instructor and his employers were held liable to pay damages to the claimant. However, as the injured skier could have objected to skiing down the off-piste slope but chose not to do so, the damages awarded were reduced by one third. In his opinion, the judge was at pains to point out that the decision is based on the specific facts of the case. Skiing is a risky activity. It does not necessarily follow that if you have an accident when skiing under instruction, your instructor is liable.
It is often difficult to consider in the abstract whether or not an instructor could be in breach of a duty of care. The extent of duty of care owed by an instructor to his pupils will depend on the nature of the adventure sport they are participating in, and the abilities of the pupils. What is important to remember is that all instructors owe duties of care to their pupils and should bear in mind their health and safety at all times. Employers ought to ensure that instructors are properly trained themselves, and that they ensure that the safety of their pupils is foremost in their minds at all times.
Many companies insist that you sign a disclaimer before taking part in any extreme sport. They are worth little more than the paper they are written on. Disclaimers are an attempt to suggest that if a person sustains an injury then the company will not be liable for any injuries. It is not possible to contract out of liability for personal injuries, so these disclaimers cannot be relied upon. A company will not avoid a finding of liability simply because the participant has signed a disclaimer before taking part in the adventure sport.
What should owners and operators of adventure sports facilities do? In practical terms, they ought to consider the adequacy of the following:-
- Safety notices;
- All equipment; and
- The training of their instructors.
By ensuring notices contain sufficient information and are prominent, equipment is maintained to the correct standards and instructors are trained properly, owners and operators should be able to reduce the chances of a finding of liability against them and, more importantly, reduce the incidence of accidents at all.
For further information please contact Jenny Grant or your usual Morton Fraser contact.
  EWCA Civ 646
  1 AC 46
 EWCA Civ 635
 Anderson –v- Lyotier (t/a Snowbizz)  EWHC 2790