England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WINCHESTER COUNTY COURT
HIS HONOUR JUDGE RICHARD FOSTER
5GL00323

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/06/2008

Lord Justice May:

1. Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured. In the present case the claimant, Gary Poppleton, went, not for the first time, on 12^th February 2002 to engage in an activity known as "bouldering" at the defendants' indoor climbing premises at the Peter Ashley Activity Centre in Portsmouth. Bouldering in this context is low level simulated rock climbing without ropes. Mr Poppleton was a fit young man who would bicycle to and from work, lift weights and take regular exercise. He was a relatively inexperienced climber, but he went with a group of friends, two of whom, James Matlock and Stuart Nash, were more experienced than he.
2. The premises comprised purpose built artificial climbing walls to a maximum height of 16 feet above the floor level. The floor was covered from wall to wall with shock absorbent matting at least 12 inches thick. On one wall, there was a buttress feature protruding into the room to form an overhang from a height of approximately 5'6". The remaining walls had various indentations, protrusions and bolted sockets to provide appropriate climbing features. There were three uncovered steel girders across the room at around the level of the top of the wall. There was no criticism of this bouldering design nor of the appropriateness of the safety matting, except that it was said that steps should have been taken to ensure that the girders were not used for climbing. Although there was no criticism of the matting, which could be expected in most instances to cushion safely any climber who fell, it is obvious that, even with this matting, it was possible that a climber who fell awkwardly might be injured.
3. Mr Poppelton had climbed on this bouldering wall only three or four times before 12^th February 2002. On this occasion, his name was written with others in the defendants' Register by someone else in the party. He was shown no rules nor asked to sign any disclaimer notice. He was given no instruction nor any explanation of risks. He was not asked about his ability as a climber. In this respect, the defendants operated, as do many other comparable institutions by providing suitable premises and equipment and leaving it to those using them to do so sensibly, and without supervision.
4. There were Climbing Walls Rules on a board outside the climbing room which expert evidence agreed should have been more prominently displayed. The Rules included an injunction not to jump off the walls and not to climb on top of structures including the metal bars that cross the room. Mr Poppleton did not read these rules and did not appreciate that he was not supposed to jump from the walls. He in fact imitated others whom he saw doing so. He also saw Stuart Nash leap from the back wall to grab hold of a girder and then drop to the floor. Mr Poppleton tried to do a similar leap from the back wall to grab hold of the buttress or the top rope bar on the opposite wall. He did not manage to complete this leap successfully, but lost his grip. He somersaulted in the air and fell to the matting below landing on his head. He was very badly injured and is now tetraplegic. The manoeuvre which he was attempting was dangerous and risky for a novice climber such as he was.
5. Mr Poppleton's claim against the defendants for damages was heard by HH Judge Richard Foster, sitting as a Deputy High Court Judge. He gave judgment on 12^th July 2007 in favour of Mr Poppleton for 25% of his loss. He found that Mr Poppleton's own negligence contributed 75% to his accident. This is the defendant's appeal against that decision.
6. On the basis of expert evidence and with the benefit of a Health & Safety Executive video "Get a Grip", which members of this court have seen, the Deputy Judge concluded in paragraph 33 of his judgment:

"There can be absolutely no doubt that in February 2002 there were a number of shortcomings in the procedures adopted at the centre which fell below industry good practice at that time. The registration process was inadequate and no steps were taken to ascertain the level of competence of climbers using the facility. This should have been done so as to ensure that appropriate steps were taken, possibly by the operation of a "buddy" system, to ensure the safety not only of the novice climber but also other users at the centre. There was inadequate floor walking and supervision. Importantly no proper risk assessments were carried out. I am also satisfied that if competent risk assessments were carried out then all the shortcomings which had been highlighted by this case should have been rectified. The issue is not whether or not those at the centre have seen the HSE Video "Get a Grip" – the fact remains that this was the best summary available at that time of industry good practice. It is obvious that the practice recommended in the video did not operate at this centre at this time."

One passage in the video advised that thick matting can increase the risk of injury by giving the climber a false sense of safety.

7. The Judge rejected Mr Poppleton's claim in so far as it alleged breach of s. 2 of the Occupiers Liability 1957. There was absolutely nothing wrong with the state of the premises and there was no relevant breach of duty to people other than Mr Poppleton arising from Mr Poppleton's activities. There was equally no liability under the Occupiers' Liability Act 1984 because Mr Poppleton was not a trespasser.
8. The judge then considered what was the nature and extent of any common law duty of care owed to those of full capacity who chose to make use of a facility when the activity allowed is potentially dangerous to its participants. He addressed questions of foreseeability, proximity and fairness. A duty could arise if a participant was offered training or supervision. But the defendants offered neither of these and Mr Poppleton did not ask for either. The judge was satisfied that the defendants were under no duty to a participant to assess his competence or to ensure he had any necessary training; nor to see that he had a more experienced friend to help him. To impose such duties would be an extension of established duties of care which would not be fair, just or reasonable where the defendants had not relevantly assumed responsibility. The judge referred to dicta of Millett LJ in Fowles v Bedfordshire County Council [1996] ELR 51 to the effect that where the only connection between the acts of the claimant and the defendant is the fact that the defendant made it possible for the claimant to harm himself, the claimant's acts are taken to be the sole cause of the harm. If these were the only issues, the judge would have dismissed the claim. He also rejected a claim based on the defendant's failure to carry out a risk assessment as required by the Management of Health and Safety at Work Regulations 1999 because that failure alone could not give rise to a free standing duty of care.
9. The Judge, however, upheld the allegation that the defendants were in breach of duty in failing to warn Mr Poppleton that thick safety matting did not make a climbing wall safe but might induce or encourage an unfounded belief that it did. This was reflected in the part of the HSE video to which I have referred. Expert evidence supported this allegation and asserted therefore that appropriate supervision was vitally important. One of the experts said that matting did not significantly reduce the likelihood of injury, but usually reduced its severity. Mr Poppleton's evidence was that he would not have attempted to make his disastrous leap if he had been climbing outside without the security of the safety matting. The defendants had a duty to warn him of dangers which were not obvious, and this was such a danger. They had no duty to supervise his climbing, but they did have a duty to warn him of this latent danger, as the judge regarded it. He was satisfied that if Mr Poppleton had been made aware that matting did not render falls entirely safe, he would not have attempted the dangerous and risky leap which, as he knew, was well beyond his capabilities.
10. As to contributory negligence, the Deputy Judge was satisfied that Mr Poppleton's disastrous manoeuvre was foolhardy especially for a climber of his very limited experience. The majority of the blame for the accident must rest with him. The judge assessed this as 75%.
11. The defendant's grounds of appeal challenged the judge's critical finding that they should have warned Mr Poppleton about the potential inadequacy of the matting. They further contend that the judge's finding on causation, that a warning would have deterred Mr Poppleton, was inconsistent with an earlier finding, in paragraph 16 of the judgment, that a more prominent display of the Climbing Rules would have made no difference. I do not find this last point alone persuasive, since I do not read paragraph 16 of the judgment as embracing an unambiguous finding that, if Mr Poppleton had read the climbing rules, he would have ignored them.
12. The main thrust of the submissions of Mr Norris, QC, for the defendants, is that it was wrong for the judge to find that the entirely adequate and appropriate safety matting could be characterised as a hidden or latent danger. It was obvious that a climber who fell awkwardly might be injured, and there was no duty to explain the obvious to a consenting adult who does not ask for advice or supervision and when none is offered. To impose any kind of supervisory or advisory duty is inconsistent with authority and an unwarranted increment. The defendants are not to be taken to have assumed responsibility in this respect. Mr Poppleton accepted in cross-examination that his attempt to jump to the rope bar was obviously dangerous and that it was his deliberate choice to take that risk. He did not think it was that risky because he thought he would have a soft landing. It was only because of the way in which he fell that he was tragically injured.
13. Mr Norris submits that there is, or should be, a policy of letting adults take care of themselves and the judge's judgment in this case embraces over- regulation and is contrary to the law's increasing emphasis on personal responsibility. Guidelines do not create a duty. There was no relevant hidden or inherent danger. This finding could, if it were correct, be applied to all kinds of activities which are not entirely free from the possibility of accidents.
14. Mr Poppleton, by respondent's notice, says that the judge was wrong to find him 75% to blame when the judge found that he mistakenly believed, because of the appellants breach of duty, that it was safe to fall because of the matting. He contends that the judge's decision on breach of duty was correct. He further seeks to uphold the judge's order on the basis that the judge should have found the scope of the appellant's duty was greater then he did. He should have found a duty to operate an appropriate registration and induction process which would assess the participants' competence. He should have found a duty to offer training and supervision, and to supervise and monitor the climbing room.
15. Mr Sharp QC, for Mr Poppleton, submits, with reference to general dicta of Hobhouse LJ in Perrett v Collins [1998] 2 Lloyds LR 255, that there were no reasons why the imposition of a duty of care on the appellants would not be fair, just and reasonable. The appellants were under a statutory duty to carry out a risk assessment, whose only point would be that identified short comings were rectified. The nature of the operation was such that customers would expect that appropriate safety measures would be taken. Mr Sharp contends that it was not absurd to characterise the safety mat as a hidden or latent danger. On the contrary, relevant HSE literature and advice and expert evidence properly identified it as such. Mr Sharp's written submission suggest that Mr Poppleton's evidence was that he jumped in the belief that the mat made his manoeuvre safe. As I have said, Mr Poppleton's evidence in fact was that he did not think it was that risky (see 1/142B and 1/155B). Mr Sharp submits that the appellant's duty to warn should embrace also a duty to carry out induction and assessment and to provide training and supervision. There is, he submits, a significant difference between a land owner who may be under no duty to prevent people climbing his mountain and a commercial operator who creates a purpose built place to enable and encourage hazardous activity. The user thereby becomes a consumer. There was a catalogue of non-compliance with accepted practice evidenced by the opinions of the experts. In short, the appellants should have asked about and discovered Mr Poppleton's lack of climbing experience; should have offered him an induction course or seen to it that he was under the eye of an experienced climber; and should have supervised the climbing activity, if only by CCTV.
16. In my view, the heart of the matter on the respondents' cross-appeal is whether the appellants were under a duty to train or supervise adults whom they admitted to use the climbing wall; and on the appeal whether the judge was correct to hold that the appellants had a duty to warn Mr Poppleton that there was a risk of injury notwithstanding the presence of entirely suitable matting. I put the first of these compendiously as a duty to train or supervise since that, in my view, comprises the kernel of the various aspects of the wider duty of care for which Mr Sharp contends.
17. Tomlinson v Congleton Borough Council [2004] 1 AC 46 is a decision mainly about the application of the Occupiers Liability Act 1984. But the speech of Lord Hoffmann in particular has dicta relevant to policy considerations underlying the scope of duties which may be owed in cases such as this. Agreeing in paragraph 26 with the judgment of Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties [2003] QB 1008 that Mr Tomlinson suffered his injury because he chose to indulge in activity which had inherent dangers, not because the premises were in a dangerous state, Lord Hoffman said at paragraph 27 that Mr Tomlinson was a person of full capacity voluntarily and without any pressure or inducement engaged in an activity which had an inherent risk. Lord Hoffman repeated, in paragraph 44 under the heading "free will", that Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. He then said in paragraph 45 that it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely chose to undertake. If people want to climb mountains, go hang gliding or swim or dive into ponds or lakes, that is their affair. The land owner may take a paternalistic view and prefer people not to undertake risky activities on his land. But the law does not require him to impose conditions. Lord Hoffmann then said at paragraph 46 that a duty to protect against obvious risk or self inflicted harm exists only in cases in which there is no genuine or informed choice. I add that a duty may also exist where the defendant has in some relevant way assumed responsibility for the claimant's safety, as in Fowles v Bedfordshire County Council CA 17.5.95- see especially Millett LJ at pages 20 to 24. The same may be said of Perrett v Collins and Watson v British Board of Control [2001] PIQR 16, in each of which the relevant defendant was exercising a degree of regulatory control. By contrast, in Evans v Kosmar Village Holidays [2007] EWCA Civ 1003, it was held, following the approach in Tomlinson, that the defendants' duty of care did not extend to a duty to guard the claimant against the risk of diving into the pool and injuring himself. That was an obvious risk of which he was well aware.
18. It is, therefore, in my view, necessary to consider whether the risk in the present case was inherent and obvious. The risk of falling from the wall was plainly obvious. The judge held in effect that the risk that the matting might not in every case protect a climber who fell from serious injury was not obvious. But I do not consider that this finding is sustainable, not least in the light of Mr Poppleton's own evidence. Evidence apart, it is to my mind quite obvious that no amount of matting will avoid absolutely the risk of possibly severe injury from an awkward fall and that the possibility of an awkward fall is an obvious and inherent risk of this kind of climbing. Mr Poppleton's evidence was that he did not think it was that risky, indicating that he knew that there was a risk.
19. I reach this conclusion, giving all due weight to the advice in the HSE video and the views of the experts. But I do not consider that, in this instance, this advice and these views dictate the result. As Lord Hoffmann said at paragraph 47 in Tomlinson:

"It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law."

20. There being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not in my view require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so. If the law required training or supervision in this case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carry with them a degree of obvious inherent risk – as for instance bathing in the sea. It makes no difference to this analysis that the appellants charged Mr Poppleton to use the climbing wall, nor that the rules which they displayed could have been more prominent. I would therefore dismiss the cross appeal.
21. I would for equivalent reasons allow the appeal. There is something of a tension between the unchallenged finding that the matting was entirely adequate and the critical finding that it constituted a hidden danger. But the essential point is that that finding is not sustainable. The risk of possibly severe injury from an awkward fall was obvious and did not sustain a duty in the appellants to warn Mr Poppleton of it. Upon this finding, the cross-appeal on contributory negligence does not arise for decision.

Richards LJ: I agree.

Sir Paul Kennedy: I also agree.