ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE FIELD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE PITCHFORD
| Mr Robert Lee Uren
|- and -
|Corporate Leisure (UK) Ltd
|Ministry of Defence
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Richard Lynagh QC & Shaun Ferris (instructed by John A Neil Solicitors) for the 1st Respondent
Derek Sweeting QC & Keith Morton (instructed by The Treasury Solicitors Office) for the 2nd Respondent
Hearing dates: 2/3 December 2010
Crown Copyright ©
Lady Justice Smith:
"In my judgement, Mr Uren's legs were lifted up as a result of the flatness of his trajectory as he went over the side head first with his arms stretched out in from of him. He was trying to enter the pool by sliding in over the side as quickly as possible. In my judgement, he was not attempting a manoeuvre which he must or ought to have appreciated was dangerous."
I myself have some difficulty in understanding why or how the flatness of the trajectory should have caused Mr Uren's legs to be lifted up. It would seem to me that the most likely explanation is that, due to the position in which he landed on the side and the angle of his body at that moment, the bounce caused his legs to go upwards and tipped him forward so that he entered too steeply. However, I do not think that it matters for present purposes what was the precise mechanism of the accident. What matters is that, while doing the same thing as others had done before and which had not been forbidden, Mr Uren's entry went disastrously wrong for no very clear reason.
The allegations of breach of duty
The risk assessments
"My findings as to the risk assessments prepared for and on behalf of the first and second defendants do not mean that Mr Uren succeeds on the issue of liability. The question for decision is not whether adequate risk assessments had been undertaken, but whether the defendants took reasonable measures to ensure that the game was safe."
Was the game as played reasonably safe?
"During a knock out game, a young man decided to dive into a paddling pool, all participants had been asked to only climb into pool as pool is very shallow. We had already played 1 game this was the second."
It was the claimant's submission that it must be inferred from this report that CL was of the view that a head-first entry was obviously dangerous. Therefore, if CL had carried out a proper risk assessment, head-first entry would in fact have been forbidden. It is pertinent to note, that in the initial stages when the claim had been intimated, CL's stance was that the accident had happened because the claimant had acted in a way which was different from any other competitor by going over the side head first. It was only after disclosure of the photograph taken by SAC Plant showing a competitor in the first heat making a head-first entry that that allegation was dropped and CL began to contend that the game as played was safe. I should mention that Mr Berry was also shown on that photograph and was watching and commentating on the event.
The appeal to this court
Risk assessment- issues in the appeal
The safety or danger of this game as played
"49. In his report Professor Ball states that it is actual, rather than perceived, risk that has to be managed. Precise figures are not available, but it appears that there are roughly 800-1000 new cases of spinal injury each year in the UK. The main causes are road accidents (about 80%), falls and disease. In the region of 12% may be related to sports activities such as rugby, horse riding and winter sports. The top sports-related cause of spinal related injury is often cited as "diving" and most agencies suggest that "diving" is responsible for 3.5% of all cases. Therefore the population averaged risk of spinal injury, based on a UK population of 60 million, is in the region of 17 in a million per year, or one chance in 60,000. This, in Professor Ball's opinion, is a fairly modest risk compared with say the risk of death from injury (about 1 in 4000 overall). None of these statistics was challenged on behalf of Mr Uren.
50. Professor Ball's estimate of the average individual risk of serious spinal injury from swimming activities for participating young males (the highest risk group) is 1 in 130,000 per year or 8 in a million. He estimates the risk of paralysis to young males from each session of swimming and diving to be roughly 1 in a million per swimming/diving session. This compares with 1 in 320,000 rock climbs and 1 in 750,000 canoe outings. Again, these statistics were not challenged on behalf of Mr Uren.
51. In Professor Ball's opinion, even for the swimming/diving fraternity, the risk of serious injury when measured on an annual basis, or a per outing basis, is very small. There were, however, no statistics for the pool game played by Mr Uren."
"Professor Ball explained that when he assesses the risk of an activity he extrapolates from his technical knowledge, experience of life and comparable activities. In his view, an assessment of the risk ex ante of the type of accident that happened to Mr Uren would have forecast it to be very low indeed and he personally would have given it the lowest score on the likelihood scale. Diving into the pool without touching the side would be very difficult to accomplish and obviously dangerous. However, to run up and slide over would be reasonable. It was not necessary to discourage sliding over the side head first with arms outstretched because the friction with the inflatable side would slow entry into the water and the distance of descent would be about 1 metre which, with arms outstretched, would allow the strain to be taken by the arms before impact with the grassy ground below. Grass was a good deal more absorbent than a hard surface such as a floor. For these reasons, the risk of injury, especially serious injury, was very low."
Cross appeal- MoD's risk assessment
Lord Justice Aikens:
Lord Justice Pitchford: