England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/01/2010

Mr Justice Field :

1. This is a claim by Mr Robert Uren for damages for personal injury arising out of an accident that occurred during a Health & Fun Day held on 28 July 2005 at RAF High Wycombe. The trial before me was in respect of liability only.
2. The Health & Fun Day was organised by the RAF High Wycombe Physical Education Flight ("PEd Flt") under the leadership of the Physical Education Officer, Flight Lieutenant Taylor. The event consisted of sixteen Health Stands and 4 fitness classes in the Sports Hall and six It's a Knock-Out style games in the open air. These games were played by teams representing the different "Flights" present on the station. The games were part of the Commanding Officer's Cup, a tournament between the Flights that is run throughout the year.
3. The last of the 6 games ("the pool game") was in the nature of a relay race. Members of the teams had to run up to an inflatable rectangular pool ("the pool"), get in over the side, grab a piece of plastic fruit floating in or under a shallow depth of water, carry it out of the pool and deposit it in a bucket, at which point the next team member was free to repeat the routine. The pool belonged to the first defendant ("CL"), a company that specialised in managing and providing equipment for "corporate entertainment" events of the type popularised in the television series It's a Knockout. It had been installed on a grassed playing field. Inflated, the sides of the pool were cylindrical and were approximately 1.04 metres high and 0.98 metres wide. The pool's internal dimensions were approximately 4.94 metres x 3 metres. The depth of the water was about 0.46 metres (18 inches). The run up was around 14-15 feet. Alongside part of the side of the pool over which the competitors were to make their entry and exit were four plastic-covered mats placed on the grass. The purpose of these mats was to provide a relatively clean surface for the competitors to land on when exiting the pool.
4. Mr Uren was a member of one of the two teams representing I.T. Ops Flight and took part in the second heat of the pool game. The other I.T. Ops Flight team took part in the first heat. Four teams of four members took part in each heat.
5. Mr Uren had joined the RAF three years previously and by now held the rank of Senior Aircraftman ("SAC"). It is common ground that he was taking part voluntarily, albeit that he was on duty. Mr Uren's team was competing in the second heat. Mr Uren knew the water in the pool was shallow because earlier in the afternoon he had been thrown into the pool by some colleagues in the course of some good natured horseplay.
6. Mr Uren had watched the first heat during which about half of the contestants had entered the pool by sliding over the side head first with their arms outstretched in front of them. The other contestants had vaulted or scrambled over the side landing in the pool feet first. Such were the dimensions of the side of the pool and the shortness of the run up that it was impossible to dive over the side of the pool without one's body making contact in a sliding fashion with the side.
7. When it came to his turn, Mr Uren ran up to the side of the pool and launched himself over it in a continuous movement head first with his arms outstretched ahead of him. Tragically, he hit his head on the bottom of the pool and broke his neck, fracturing his mid-cervical spine at C4, C5 and C6. Mr John Scowcroft, an RAF CIS Technician, was the first to reach him, at which point he was under the opposite side of the pool. Mr Uren is now tetraplagic and confined to a wheel chair.
8. Mr Uren testified that he remembers running up to the side of the pool with the intention of sliding in head first with his arms outstretched. He remembered seeing three people in the pool which caused him to adopt a diagonal approach to avoid landing on them. The next thing he remembered was waking up face down in the pool unable to move.
9. Mr Uren was an honest and straightforward witness. I have no hesitation in accepting his evidence.
10. Mr Uren's entry into the pool was observed by Mr John Scowcroft, an RAF CIS Technician, and by Sergeant Adam Thomas who was a member of PEd Flt. Mr Scowcroft testified that Mr Uren went over the side of the pool head first with his arms outstretched and with his body sliding over the side. Sergeant Thomas' evidence was that Mr Uren went into the pool head first in the same way as several of the other contestants but as his legs were sliding over the side something caused them to be lifted from the thigh forcing him down at a steep angle. I accept the evidence of both of these witnesses.
11. Mr Uren's entry into the pool was also witnessed by two members of PEd Flt, Corporal Gaze and Corporal Williams, neither of whom was called to give evidence but who made sworn statements in the course of the post-accident internal enquiry conducted by the RAF ("the Unit Inquiry"). It is common ground that both of theses statements are admissible hearsay. In his statement Corporal Gaze says: "Robert Uren jumped into the pool, as he did this his legs hit the inflatable side, and his legs were sent into the air. This caused him to enter the pool head first." And Corporal Williams says in his statement: "As I was watching the event I saw SAC Uren dive into the pool, he appeared to catch the top of his legs on the side of the pool which made his legs flip up and made the angle at which he dived into the pool really steep."
12. 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 outstretched in front 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.
13. Another witness who was present during the pool game was SAC Stewart Plant who was in attendance in his role as official photographer. Mr Plant did not witness Mr Uren's entry into the pool but he watched the game being played earlier. It was his evidence (which I accept) that, as he watched contestants enter the pool head first, he thought that there would be an accident and said as much to Mr Mark Sutton who was standing nearby.
14. Sir Geoffrey Nice QC for Mr Uren suggested that Mr Uren's legs may have been forced up by a "bounce effect" resulting from the impact on the side of the pool of another competitor getting into or out of the pool. I reject this suggestion. There is no doubt that the inflated sides of the pool had a certain amount of "give" in them but there was no evidence as to whether the impact of another competitor on the side could have produced any bounce under Mr Uren, let alone a bounce of sufficient effect to throw Mr Uren's legs up in the manner described.
15. Earlier in the afternoon of the Health & Fun Day it had rained and the grass run up was somewhat slippery but it is not suggested that this in any way caused Mr Uren to enter the pool in the way that he did or otherwise contributed to the accident.
16. Mr Uren claims that CL and his then employer, the Ministry of Defence ("the MOD"), were each in breach of a duty to take reasonable care to ensure that he was safe in taking part in the game. Mr Uren also alleges that CL and MOD were each in breach of Regulations 4(1), (2) and (3) of the Provision and Use of Work Equipment Regulations 1998 ("PUWER 1998"). In addition, Mr Uren pleads that the MOD were in breach of Regulations 3 and 10 of the Management of Health and Safety at Work Regulations 1999 as amended ("MHSWR").
17. The third defendant, who represents CL's public liability insurers, was added when shortly before the trial it was discovered that CL's name had been removed from the Companies Register. However, by the time the trial actually started CL's name had been restored to the Register and accordingly no claim was in the event made against the third defendant.
18. In his closing submissions, Sir Geoffrey Nice accepted that, even if the pleaded PUWER 1998 and MHSWR 1999 regulations applied, whether there had been a breach thereof was in substance the same question as whether there had been a breach of the common law duty of care pleaded against CL and the MOD. It is not in dispute that CL and the MOD each owed Mr Uren a common law duty to take reasonable care to ensure that he was safe in taking part in the game. Accordingly, the question to be decided in this trial is whether CL and/or the MOD were in breach of this duty.
19. It is also to be noted that it was common ground that in the context of this case section 1 of the Compensation Act 2006^[1] adds nothing to the common law. (I should add that this accords with my own view of the effect of the section).
20. Flight Lieutenant Taylor gave Corporal Thom the task of identifying a company which could provide a package of suitable competitive events at an acceptable price. Corporal Thom obtained details of a number of events companies from the internet and thereafter obtained from CL its brochure. CL had provided a package of It's a Knockout games for RAF High Wycombe's Health & Fun Day the previous year which it was felt had been a success. Corporal Thom spoke to CL's Events Manager, Katrina Oakley, who quoted a price for the same package that had been provided the previous year. Corporal Thom reported this information to Flight Lieutenant Taylor who instructed him to place an order for the proposed package of games and equipment at the quoted price. On 27 July 2005 Flight Lieutenant Taylor signed a contract issued by CL on 15 July 2005 for the provision of the six games and for "equipment only" for "Gladiator Duel" and "Barfly Stickup". Although it is plain that a game involving the pool had been provided in 2004, it is not clear that the very same relay game was played on that occasion. The view in PEd Flt was that the package of games had been a success in 2004 but no-one was certain what the pool game involved.
21. The pool was manufactured by Supa-Bounce Ltd but as an inflatable to be filled with inflated balls, not water. Mr Collins, a director of CL, testified that apart from the injury to Mr Uren, there had been no injuries to people using the pool. I accept this evidence but it must be borne in mind that the pool was only occasionally hired-out by CL because it required a large quantity of water which normally had to be supplied by the local fire brigade.
22. CL sent three individuals to RAF High Wycombe on 28 July 2005 to supervise the running of the games and the erection and positioning of the equipment: Mr Darren Berry, CL's then General Manager; and Daniel Brent and Robert Brill, who were students working part-time. Mr Berry had supervised the pool game once before; Messrs Brent and Brill had no previous experience of the game.
23. When Mr Brent became General Manager in 2003 he was asked by Mr Collins to review the risk assessments that had been prepared of CL's various games, including the pool game. When carrying out this task, Mr Brent did not produce new risk assessments but instead reviewed the wording of the risk assessments, making changes where he thought more clarity was required. The re-written risk assessments were in common form under headings which included: "Activity"; "Causal Factors to People"; "Causal Factors from Equipment" and "Management Factors for People". The assessment for the inflatable pool game had the following entries in the following boxes: "Swimming Pool" in the "Activity" box, "Risk of drowning and overcrowding can cause injuries" in the "Causal Factors to People box", "Rips and holes No electric blowers to be used" in the "Causal Factors from Equipment" box and in the "Management Factors for People" box:

A fully trained operator to oversee the inflatable.

The operator prior to the game commencing gives all contestants instructions and the rules.

Up to 4 contestants at any one time on the inflatable.

All persons are requested to remove glasses prior to the game.

Admittance will be denied to anyone obviously under the influence of alcohol or drugs.

ALL CONTESTANTS HAVE THE RIGHT TO PULL OUT

24. CL's risk assessments of the It's a Knockout games were neither sought by nor provided to RAF High Wycombe.
25. There was no evidence that the individual who produced the original risk assessment for the game appreciated that contestants might enter the pool head first. I am also not satisfied that when Mr Berry reviewed the assessment that he had in mind contestants might enter the pool head first. For these reasons I am bound to find that the risk assessments of the game relied on by CL were defective.
26. Mr Berry was in charge of the CL team attending the event. Before the pool game took place he told the contestants how the game was played. For this purpose he used Mr Brill or Mr Brent to walk from the start line to the pool and back again. Mr Berry said in his witness statement that he told the contestants not to dive into the pool. In his oral evidence he said "I'm pretty sure that I would have asked people not to dive." This evidence is of a piece with the accident report form signed by Mr Berry in which he stated: "During a knock out game, a young man decided to dive into a paddling pool. All participants had been asked to only climb into the pool as it is very shallow." I decline to accept this part of Mr Berry's evidence. It was not supported by any of the other witnesses who heard Mr Berry's briefing, including Mr Brill, and it is common ground that Mr Berry did not see Mr Uren's entry into the pool during the course of the game. In my judgement, it is clear on all the evidence that, whilst Mr Berry told the contestants to be careful, use their common sense and avoid other people when entering the pool, he did not tell them only to climb into the pool or that they should not dive into it.
27. As the pool game was being played, Mr Berry provided an amplified running commentary. It was suggested that there were times when a contestant entered the pool head first that Mr Berry said words to the effect "that was a good dive," and thereby encouraged the contestants to take untoward risks. I reject this suggestion. Although I conclude that Mr Berry said words such as "nice one" on several occasions when contestants entered the pool by sliding over the side head first, I find that Mr Berry did not use the word "dive" in his commentary; nor did he encourage the contestants to engage in anything risky or dangerous.
28. Whilst the pool game was in progress, Messrs Brent and Brill were stationed near the start line making sure that the plastic fruit was taken to the team line before the next team member ran up to the pool. Up until Mr Uren's accident, neither saw any pool game contestant doing anything that he considered to be dangerous.
29. An MOD document ("DCI GEN 134") dated 7 May 2004 entitled "Safety at Public Events on MOD Property and Elsewhere" states that Commanding Officers/Head of Establishments should, inter alia: (i) assess the risks to health and safety to employees arising from their work and the event activities and the interface between the two; and (ii) ensure that event participants and visitors are informed about significant risks and the precautions necessary. The document prescribes that before the event itself risk assessments carried out at the planning stage should be reviewed and that there be an event planning committee.
30. Leaflet 3 of the MOD Health and Safety Hand Book ) ("JSP 375") deals with Safety Arrangements for Organisations Using MOD Premises. Paragraph 19 of this document states that suitable and sufficient assessments are to be carried out on all risks associated with a particular facility or activity and significant findings recorded. Paragraph 5 of Annex A provides that a risk assessment must identify the hazards, decide who is at risk, evaluate risks and identify the control measures, record findings and review the assessment.
31. The individual primarily responsible for Health and Safety at RAF High Wycombe was a civilian employee, Mr Richard Cassford. Very surprisingly, Mr Cassford carried out no risk assessment of the Health and Fun Day whether overall or as to its separate component parts. No justification for this failure was provided to me.
32. In the event it was Flight Lieutenant Taylor who took on the job of preparing risk assessments. He was aware of DCI GEN 134 and JSP 375 but did not know of their detailed contents. The first risk assessment he prepared was for the Health & Fun Day and was dated 18 July 2005. In this document he stated that the hazards involved were "slipping, falling, twist, sprains, collisions, abrasions" and under the heading "Existing Safety Measures/Controls" wrote "Ensure safe use of equipment under the direction of Corporate Leisure. Ensure people do not drink if taking part. Medical cover from Med Centre." Flight Lieutenant Taylor's risk rating (likelihood x severity) was 2 x 2 = 4. He recorded that there were no remaining risks in the light of existing control measures and no additional controls were required.
33. On 9 August 2005, Flight Lieutenant Taylor made a sworn statement for the purposes of the Unit Inquiry. This records that in answer to the question: "Was a Risk Assessment carried out?" he stated: "I completed my own risk assessment which I now produce as "Exhibit A." Exhibit A is the risk assessment dated 18 July 2005 referred to in paragraph 27 above.
34. Flight Lieutenant Taylor testified that he carried out a signed subsequent risk assessment on 21 July 2003 for the It's a Knockout element of the Health & Fun Day. A copy of this assessment was before the court. This document identified the hazards as "TRIP HAZARDS, COLLISION INJURIES, SPRAINS, SOFT TISSUE INJURIES. BURN INJURIES FROM INFLATABLES, WATER HAZARD – SLIP INJURIES, FALL INJURIES, COLISON (sic) INJURIES, DROWNING, BALL IMPACT INJURIES." In the box headed "Existing Safety Measures/Controls" was written "FULL SAFETY BRIEF FROM COPORATE (sic) LEISURE. AREA CHECKED FOR SAFETY, PRIOR TO START OF ACTIVITY. CORRECT CLOTHING AND FOOTWEAR TO BE WORN. WATER LEVEL TO BE KEPT TO MINIMUM IN INFLATABLE POOL. MONITORING OF ALCOHOL DRINKING OF PARTICIPANTS. MEDICAL COVER THRUGHOUT (sic), ACCESS TO FIRST AID AND TELEPHONE. ALL STAFF TO CARRY MOBILES." The "Risk(s) Remaining" were stated to be "SLIPS FALLS, COLLIONS (sic), WATER RISK (DROWNING)" and were rated 1 x 3 = 3. In the box headed "Line Manager/Commander Assessment Approval" appear the words "COPORATE (sic) LEISURE WILL BE RUNNING ALL OF THE EVENTS AND ARE REPONIBLE (sic) FOR ALL SAFETY BRIEFS AND ENSUING (sic) THAT ALL ACTIVITIES ARE SAFE."
35. It was suggested to Flight Lieutenant Taylor that he had prepared the second assessment only after the accident. Flight Lieutenant Taylor denied this. When asked what his explanation was for not having identified the second assessment during the internal inquiry, he said he could offer no explanation.
36. Flight Lieutenant Taylor is an officer with an unblemished reputation. In my judgement he was a witness of truth. I accept his evidence that he prepared the second assessment on the date it bears. I can only speculate why the first assessment was marked "Exhibit A" and not the second. It was Flight Lieutenant Taylor's view that the second assessment may not have been provided to the Unit Inquiry because the event had been organised and supervised by CL.
37. Both assessments were completed without Flight Lieutenant Taylor knowing in any real detail how the pool game was played or the dimensions of the pool. He understood that it had featured in the previous year's Health & Fun Day and he saw a photograph of what might have been this event, but he did not know how the game was played and took no steps to find this out. His attitude was that if there were particular risks arising from the pool game, CL would advise him of them.
38. The obligation to prepare an adequate risk assessment was part of the non-delegable duty of reasonable care owed by the MOD to Mr Uren. Flight Lieutenant Taylor was not entitled to leave it to CL to assess the risks of the game. Further, no risk assessment of the pool game could be adequate unless the person undertaking it was aware of how the game was played and the ways the entrants, after being told to exercise care, might enter the pool. It follows that the two risk assessments prepared by Flight Lieutenant Taylor, particularly the second, were fatally flawed.
39. 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.
40. Sir Geoffrey Nice for Mr Uren submitted that the game was unsafe because head first entry was not prohibited from the outset. If contestants were not prohibited from entering the pool head first, some would inevitably adopt this means of entry to try to win the game and it was reasonably foreseeable that serious injury could result. Further, and in the alternative, once the game had got underway and it could be seen that some contestants were indeed entering the pool head first, including Mr Beeken, who landed awkwardly, both PEd Flt and CL should have stopped the game or at least have imposed a ban on head first entry. SAC Stewart Plant had concluded that an accident was likely. That too should have been the reaction of Sergeant Thomas and Corporals Gaze and William.
41. Sir Geoffrey Nice relied on the evidence of the expert witness called on behalf of Mr Uren, Mr Andrew J Petherick. Mr Petherick has over 35 years' experience in the organisation and management of many events, including It's a Knockout events. He has also regularly acted in the capacity of an Event Health and Safety Coordinator at such events. From 1988 to 1998 he managed and developed leisure facilities and events through the Rae Sports and Leisure Group. Since 1998 he has acted as a consultant in the course of which he has regularly received commissions to review safety procedures for It's a Knockout type activities. He holds a diploma in Health and Safety awarded four to five years ago after a two week course. He is currently studying for a degree in Health and Safety under the auspices of de Montfort University.
42. Mr Petherick was of the view that the guidance issued by the Health and Safety Executive, Sport England and the Amateur Swimming Association concerned with diving in swimming pools applied to the pool game. Under this guidance, diving into a swimming pool from the pool side should only be permitted if the depth of the water is at least 1.5 metres and there is a minimum forward clearance of 7.6 metres. Mr Petherick was also of the view that the pool was unsuitable to be used for the pool game because it had not been made as a swimming pool but to hold inflated balls. It was also his opinion that the measurements of the pool made it totally unsuitable for any form of head-first entry. In addition, Mr Petherick was critical of CL's and Flight Lieutenant Taylor's risk assessments of the pool game. In particular, the potential for participants to use a head first entry should have been identified as a major risk. In his opinion, Mr Uren's accident was foreseeable. Head first entry should not have been permitted.
43. In cross-examination, Mr Petherick agreed that it was impossible to make sports activities risk-free and that there was an acceptable level of risk. Factors relevant to whether the risk is acceptable include the age of the participants, their fitness, the fun to be had, the degree of challenge and the likelihood of serious injury. Mr Petherick also accepted that on the day in question the pool was not being used as a swimming pool and that this was obvious to the participants in the game.
44. Sir Geoffrey Nice also relied on the expert report of Dr Simon Jones which was obtained by the MOD. In the event, Dr Jones was not called by the MOD but as he was entitled to do, Sir Geoffrey relied on his report.
45. Dr Jones is a Chartered Mechanical Engineer who since 2006 has been an Associate with Burgoynes, a firm of Consulting Scientists and Engineers. He gained his qualifications relatively recently, graduating with a BEng (First Class Honours) in 2001 and gaining his PhD in 2005. As an Associate with Burgoynes, Dr Jones investigates incidents of mechanical failures and personal injuries.
46. In paragraph 4.6 of his report, Dr Jones states that on the information available, Mr Uren's accident would have been avoided "had Mr Uren not dived head first into the pool". In paragraph 4.7 he says that it is well-known that it is dangerous to dive into the shallow end of a swimming pool and due to the difficulty in differentiating between slow head first entries and fast head first dives during the course of the game, it would probably have been advisable to ban all head-first entries at the outset of the game. In his conclusions, Dr Jones states that CL should have ensured that the competitors were verbally warned not to enter the pool head first and in particular were not to dive. If competitors were diving head first into the pool during the game this should have been immediately discouraged or penalised by those in charge.
47. Mr Lynagh QC for CL and Mr Sweeting QC for the MOD both submitted that the pool game was reasonably safe. There are risks in many sporting activities. Here the contestants were warned to exercise care when entering the pool. They all knew that the water in the pool was shallow and ought to have realised that to dive into the pool without touching the side or to attempt such a means of entry would be dangerous. The pool was sited on a grassed playing field which was a much softer surface than the floor of a gymnasium and the dimensions of the pool's sides and its internal area were such that to enter it head first with arms outstretched did not pose such a risk of serious injury as to render the defendants in breach of their duty to exercise reasonable care to ensure that Mr Uren was safe in taking part in the game. The game was fun; it provided an enjoyable challenge to fit young service men. All sporting activities involved an element of risk: rugby and football were two obvious examples. A ban on head first entry would have taken much of the enjoyable challenge out of the game.
48. The expert witness called by CL was Professor David Ball. Since 1967 Professor Ball has been Professor of Risk Management at Middlesex University where he now works two days a week, working the rest of the time as a consultant on Health & Safety issues. Professor Ball is also Director of Middlesex University's Centre for Decision Analysis and Risk Management. Previously he was Director of the Centre for Environment & Risk Management at the University of East Anglia from 1992 until 1997. He is a Fellow of the Institution of Occupational Safety and Health and has had practical training as a risk assessor on approved IOSH courses. He is a qualified scientist (BSc 1965 and DPhil 1969) and has worked on a wide range of public safety questions since 1974. In particular, since 1986, he has carried out detailed studies on the safety of sport and leisure activities. He has acted as a consultant for many government departments and safety regulators, including the Health & Safety Executive, the Department of Health, DEFRA, the European Safety Association and the WHO. In 1995/96 he served on an HM Treasury Committee reviewing the setting of safety standards in the UK^[2]. During 2009, at the HSE's request he was a member of their Technical Working Group on societal risk.
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 (~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 (~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 by 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.
52. Professor Ball explained that when he assesses the risks 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 sides 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.
53. Professor Ball said that in deciding whether the pool game was reasonably safe one must consider the risk of serious injury and also the benefits of the activity. An appropriate trade-off has to be made. His conclusion was that Mr. Uren was extremely unlucky to suffer the injury he did. The probability of serious injury was remote. To ban head first entry would have been to reduce the game to a boring and pointless activity.
54. Professor Ball accepted that games for adults such as It's a Knockout type games were a specialist area but said that he had worked extensively on hazards posed to the public by similar activities such as swimming and children's play grounds. In his view, children's activities should not be risk free; instead the risks should be managed so that children learn to deal with risk.
55. I found Professor Ball to be a most impressive witness. He has immense experience in the field of risk assessment of play and sporting activities and his approach is solidly scientific with due regard to common experience and common sense. Mr Petherick, on the other hand, was a considerably less persuasive witness. In my opinion, he placed undue reliance on the swimming pool regulations for safe diving and the fact that the pool was not constructed to be used to contain water. I say this because manifestly the pool was not used as a swimming pool on the day in question and the height of the sides was such that it was impossible for the contestants to dive into the water without sliding over the side. In addition, the grass playing field on which the pool was sited was much more absorbent of energy than the hard bottom of a swimming pool. In the final analysis I cannot escape the conclusion that Mr Petherick has allowed hindsight to creep into his reasoning.
56. As for Dr Jones, I found his report to be of very little assistance. He is a relatively recently qualified engineer who has no, or very little, experience in risk assessment.
57. For the reason he gives, I agree with Professor Ball's conclusion that the risk of serious injury posed by the pool game was very small. The contestants were told to take care on entering the pool. It was obvious that they should not attempt to dive in without sliding over the side. In sliding over the side they would be moving essentially horizontally and the friction would slow the pace of entry. At that point the contestants would be about a metre above the ground and by entering with arms outstretched to the front, they could be expected to be able to control the impact with the bottom of the pool – a lining resting on a grassed playing field.
58. What spectators of the pool game thought of the risks of an accident is of very little relevance. I would in any event observe that whilst Mr Plant, a photographer, might have thought that an accident was likely, three trained RAF physical education instructors who observed contestants entering the pool head first – Corporals Gaze and Williams and Sergeant Thomas – saw no reason for intervening to stop the game.
59. Does the existence of a very small risk of serious injury mean that the defendants were in breach of the common law duty of care they each owed to Mr Uren? In my judgement it does not. Enjoyable competitive activities are an important and beneficial part of the life of the very many people who are fit enough to participate in them. This is especially true in the case of fit service personnel. As Mr Petherick readily accepted, such activities are almost never risk-free. This means that a balance has to be struck between the level of risk involved and the benefits the activity confers on the participants and thereby on society generally. The pool game was an enjoyable game, in part because of the physical challenges it posed to contestants. The risk of serious injury was small. In my judgement, neither CL nor the MOD, was obliged to neuter the game of much of its enjoyable challenge by prohibiting head first entry.
60. I have the greatest sympathy for Robert Uren whose life has been devastated by his injuries. He is a thoroughly decent young man who had a promising career ahead of him in the RAF. However, for the reasons I have given, his claim for damages against CL and the MOD fails.

Note 1   A court considering a claim in negligence or breach of statutory duty may, in determining whether the Defendant should have taken particular steps to meet a standard care (whether by taking precautions against a risk or otherwise) have regard to whether a requirement to take those steps might (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.     [Back]

Note 2   HM Treasury, “The setting of safety standards”, a report by an Interdepartmental Group and External Advisers, 1996     [Back]