Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 207
	OPINION OF LORD WOOLMAN in the cause SARA HOBBIN Pursuer; against VERTICAL DESCENTS LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Blessing; Thompsons, Solicitors

Defender: Cowan, solicitor advocate; Simpson & Marwick WS, Solicitors:

16 December 2011

The Facts

[1] In July 2007 Miss Hobbin came to Scotland on holiday with her then partner, Geraint Grace. One of their aims was to climb Ben Nevis. They had provisionally set aside Thursday 26 July to carry out the climb. As they had nothing planned for the day before, the couple visited a local tourist information office to gain ideas. They came across an advertising leaflet for Vertical Descents Limited ('Vertical'). Vertical is an outdoor activity company based near Fort William. One of the activities it offers is "canyoning".

[2] Participants in canyoning descend canyons, streams, ravines and other water-courses by means of sliding, jumping and scrambling. Vertical's owner, Ben Starkie, has been involved with the activity since it was introduced into Scotland in about 2000. Vertical was the first company in Scotland to offer canyoning as its primary activity. In 2006 it had between about 1700 and 2000 canyoning clients. Mr Starkie has acted as a technical adviser to other outdoor activity companies offering the activity.

[3] Prior to 2007, Vertical had been inspected several times by Mr Bob Telferd. He was formerly the Deputy Head of Inspection for Adventure Activities Licensing Services. The inspection involved looking at (a) risk assessment; (b) instructor competency; (c) equipment; and (d) safety management systems. There had been no significant concerns with Vertical.

[4] Neither Miss Hobbin nor Mr Grace had canyoned before. Of the activities mentioned in the leaflet, however, that was the one that most interested them. They went online and visited Vertical's website. It stated that canyoning is a safe, fun and enjoyable activity for people of all ages and levels of fitness.

[5] The couple decided to make further enquiries. Miss Hobbin telephoned Vertical and asked a number of questions, one of which related to footwear. She did not wish her hiking boots to become wet prior to the proposed climb of Ben Nevis. She asked whether she could wear baseball shoes when taking part in canyoning. The company informed her that it could provide suitable footwear, if required.

[6] On the morning of 25 July, the couple went to Vertical's headquarters. It is located just outside Fort William. Miss Hobbin described the situation there as "slightly chaotic". Although the exact sequence of events is not clear, a number of things happened.

[7] Prospective participants were given a description of the activity and invited to ask questions. In response to a query from Miss Hobbin, an instructor confirmed that her baseball shoes would be suitable footwear. He explained that their soft sole would enable them to establish maximum contact with the surfaces on which they were placed.

[8] The couple decided to proceed and signed up for an introductory trip. They each signed a disclaimer form, which was in the following terms:

'Declaration

"Vertical Descents treats the Health and Safety of all participants as a priority. As with any sport/leisure activity there are hazards associated with Canyoning. It is important for the safety of everyone taking part that each participant is acquainted with those hazards and individually takes all relevant action to minimise those hazards as much as possible."

I understand that:

Canyoning is physically and mentally intense and may require extreme exertion.

The possibility of injury to myself exists.

Canyons have varying terrain, may be slippery and have many trip hazards. I will get wet and cold.

Canyoning can cause bruising and stiffness.

If I take my equipment off I will be putting myself in danger.

If I don't listen to the guides I will be putting myself and others in danger.

...

I confirm and agree that:

·       I am physically fit and mentally able to take the strain and exertion involved in Canyoning.

·       I have no medical condition that would prevent me from taking part in canyoning. (Please make your guide aware if you use an inhaler or any other medical aid).

·       I am fully aware of the risk to myself and others involved in Canyoning.

·       I will comply with the rules and use all equipment as instructed.

·       I will obey all instructions from the guides.

...

I have read and fully understood this agreement. I am aware that by signing this agreement I acknowledge and accept the inherent risk of injury that Canyoning entails and I waive any claim that may result from my participation in Canyoning activities.

I have listened to and understood the safety briefing.'

[9] As well as Miss Hobbin and Mr Grace, a family of four also signed up for the trip. The parents appeared to be in their early forties. Their two daughters were aged about 10 and 13. The participants were provided with protective clothing to wear, which included a wetsuit, a buoyancy aid and a helmet. After putting on the clothing, the group was then driven by Land Rover to Allt Gleann A'chaolis, near Kinlochleven. It is the easiest of the three routes used by Vertical. The ascent normally takes 20 minutes and the descent about an hour to an hour and a half. It is deemed suitable for beginners.

[10] Allt Gleann A'chaolis is a narrow canyon or gorge. It has a fast flowing stream with a number of waterfalls and pools. It is shown in various photographs that were considered at the proof. In particular, attention was focused on a series of photographs included within a report instructed on behalf of Miss Hobbin and dated 10 May 2011. It was prepared by Robert Barton, who has many years experience in outdoor activities. He is the author of a book entitled "Safety Risk and Adventure in Outdoor Activities". He is a director of Adventure Activity Associates Limited, which provides advice to a number of organisations, including Learning and Teaching Scotland.

[11] The instructor who led the group that day was Graham Reid. He was accompanied by a trainee instructor, Paul Brazendale. Mr Reid had worked with Vertical since 2006. He was trained in canyoning by Mr Starkie, which involved shadowing him for a number of months. He received proficiency certificates for each of the three Vertical routes in 2006. Prior to the date of the accident, Mr Reid had led approximately 80 to 100 canyoning trips. He has extensive outdoor experience. As well as being a qualified raft guide and a swift water rescue technician, he also possesses a first-aid qualification from the British Association of Ski Patrollers.

[12] When the group began the ascent, Miss Hobbin experienced some difficulty. The ground leading to the top of the water-course was very boggy. Her shoes kept getting stuck in the marsh and she stumbled a few times. According to her, she reached the summit about three to five minutes after the other members of the group. By then she felt tired. Mr Grace said that "She wasn't the fittest of persons". Mr Reid noticed that Miss Hobbin did not move as easily or swiftly as other members of the group, but thought that she was still capable of undertaking the descent.

[13] At the top of the water course, Mr Reid gave a safety briefing. He told the participants to look down the water-course and to visualise what they would encounter. He explained that the conditions underfoot would be slippy and that they should take care. He told them to keep their centre of gravity low, to watch their footing and to avoid standing on big flat rocks. If necessary, he instructed them to shuffle on their bottoms. As well as the talk, he gave a visual demonstration showing how they should move down the canyon.

[14] Miss Hobbin continued to have problems during the course of the descent. She found it difficult to stay upright in the water and to keep her footing. According to her, two events happened quite early in the course of her descent. First, she fell and was saved from falling further by the presence of a bush at the side of the ravine. The instructors did not notice her fall. Secondly, there was a jump of about 15 feet into water. Miss Hobbin and one of the daughters elected not to carry out the jump. Instead they both walked down to a lower level.

[15] At some stage, Miss Hobbin lost her footing, fell and hit her head. She heard the sound of a large crack. She felt dazed and lay there for a short period. Following a short discussion, she was assisted down the hill by her partner and Mr Brazendale. Mr Grace then drove her to Belford Hospital in Fort William.

The Location of the Accident

[16] The defences state that the accident occurred at GPS map grid reference 145605. Using that information, in October 2010, Miss Hobbin and Mr Barton went on a site visit to Allt Gleann A'chaolis. When they arrived at the ravine, Miss Hobbin immediately recognised the large flat rock where the accident had happened. Mr Barton said that she was "emphatic" that the accident had occurred there. He prepared his report on that basis and identified the more detailed GPS grid reference as being 14466 60562.

[17] There is a general photograph of the accident site immediately above para 92 of Mr Barton's report. The actual rock itself is shown below para 93. Miss Hobbin said that the accident occurred shortly after she and the daughter from the family group had both walked down instead of taking the leap. According to her, the group re-assembled at the top of a natural water flume. She described it as being like a short water slide of the type to be found in a leisure park. It was about eight to ten feet long. One of the instructors demonstrated how to go down the flume. The other instructor stayed at the top to assist each member in negotiating the obstacle.

[18] Mr Grace, whose evidence was taken on commission, was unable to say specifically where the accident had happened.

[19] Initially, Mr Reid and Mr Starkie found it difficult to identify the accident site from the sequence of photographs in Mr Barton's report. They explained that the topography of different parts of the canyon is very similar. However, once Mr Reid had oriented himself, he immediately said that the rock identified by Miss Hobbin was not the place where the accident occurred. When questioned further, he said "I know the site very well" and that is not the site. "you would not slide down water shown in the photograph above paragraph 92". He had revisited the site to refresh his memory prior to the proof.

[20] In their respective final submissions, the parties regarded the precise location of the rock as being of key importance. On behalf of Miss Hobbin, it was accepted that if she had not been standing on the rock shown in Mr Barton's photograph, then her claim would fail. Equally, it was accepted on behalf of Vertical that if she had been on that rock, then it was liable.

[21] I do not ascribe the same importance to this matter as the parties. In my view, it is preferable to take a wider view of the circumstances. In a location of this sort, I believe that it is unnecessary for a pursuer to commit to an exact rock.

[22] However, I preferred the evidence of Mr Reid on this point. I found him to be a credible and reliable witness. He had been to the canyon many times and was familiar with the terrain and layout. He was clear about where the event took place. On the day in question, on his return to Vertical's headquarters, he completed an incident report form. It stated that the accident happened at 11am and continued: "Fell over on flat rock. She fall (sic) backward and banged her head. She did not lose consciousness."

[23] On the same day, Mr Reid informed Mr Starkie about the accident and its location. He told him that it occurred at the bottom, rather than the top of a slide. Subsequently, Mr Reid took Mr Starkie to the place where he said Miss Hobbin had fallen. It is lower down the canyon than that shown in the photograph above para. 92 in Mr Barton's report.

[24] While I had no doubt about her credibility, there were a number of reasons that made me hesitate before accepting Miss Hobbin's evidence about the accident site. First, this was the only time that she had been to the area. Secondly, she was only at the accident site for a very short period of time. Thirdly, she was tired at the time. Fourthly, topography of the canyon was very similar at different parts.

[25] Unfortunately, the factual dispute about the accident site only emerged in the course of Mr Reid's evidence. It was not suggested during the cross-examination of Miss Hobbin or Mr Barton that it had taken place anywhere else. That may have been because according to Mr Reid, he had not spoken to his solicitors prior to the proof.

Fault I

[26] Miss Hobbin relies on two grounds of fault. First, she contends that the instructors should have noticed that she was not coping with the activity during the course of the ascent and arranged for her to be taken off the hill. Mr Reid responded by stating that he would encourage participants to continue with the activity, but always defer to their wishes if they wished to cease. His position was that he would not pressurise anyone to stay in the activity. If a participant clearly indicated that they did not want to continue, Mr Reid would have complied without hesitation.

[27] Most adventure activities involve a degree of risk. People seek a feeling of exhilaration through being exposed to risks not present in normal life. Accordingly, the law aims to strike the correct balance. It acknowledges that it should not deter normal leisure activities. As Jackson LJ stated in Scout Association v Barnes [2010] EWCA 1476 at para 34:

"It is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities ..."

[28] Smith LJ was to similar effect:

"... I agree with all that Jackson LJ said in his concluding paragraphs. Of course, the law of tort must not interfere with activities just because they carry some risk. Of course, the law of tort must not stamp out socially desirable activities. But whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach. That is what this judge did, and in my view, his conclusion should be respected."

[29] Miss Hobbin knew that canyoning involved a risk of slipping. That was apparent to her from: (a) the description of the activity in Vertical's leaflet and on its website; (b) the information given to her by the course instructors during the safety briefing; (c) by her own observation of the site when she reached the top of the ascent; (d) by the terms of the disclaimer form; and (e) by the fact that all the participants required to wear safety clothing, including a helmet.

[30] Miss Hobbin also knew something about her own ability to undertake canyoning. She accepted that her sense of balance has never been very good. Throughout her evidence, however, she repeated that she thought that the activity would be safe.

[31] In my view, Mr Barton was more realistic when he said that it was the duty of an adventure company "to keep risks within a tolerable level". The difficulty is to determine what constitutes the right measure of tolerance. In his report, Mr Barton states: "Canyoning is a rugged activity and bumps and scrapes are likely. Potentially life threatening hazards to be managed by providers include falls from height, rockfall, drowning and, in cold conditions, hypothermia." (para. 23)

[32] There is a further point. In his testimony, Mr Barton stated that the risk of slipping while canyoning is the same whether participants are standing in the riverbed, or on a rock. As he put it "It's not the slip that's the problem, it's the landing". I therefore found it surprising that he suggested in cross examination that persons on canyoning "taster days" don't want to be doing "anything more risky than being on the High Street'.

[33] In any event, I am satisfied that there was nothing before the fall to indicate to Mr Reid that Miss Hobbin was either unable or unwilling to continue the descent.

Fault II

[34] The second ground of fault on which Miss Hobbin founds is simple and straightforward. She states that Mr Reid pointed to the rock upon which she was standing immediately before her fall. It was a large flat rock, semi-submerged in the water with a very slippery surface. Mr Reid denies that he instructed Miss Hobbin to stand on the rock in question. He described it as stupid to stand on that rock. As he put it, it would have been ridiculous for anyone to stand there.

[35] The decision on this point turns on credibility and reliability. I have already indicated my views about Mr Reid's evidence. He struck me as a careful and responsible individual. I accepted his account that he would never direct someone to stand and remain on the rock identified by Miss Hobbin. It appeared to me that when he was shown the photographs in Mr Barton's report, an expression of relief crossed his face. I inferred that arose from his belief that Miss Hobbin had got it wrong. But as I indicated above, my decision is not confined to that precise rock. I hold that Mr Reid did not instruct Miss Hobbin to stand on any large, flat semi-submerged rock that day.

[36] Although she was trying her best to give an accurate account of events that day, Miss Hobbin often replied by stating that she had no recollection of particular matters. For example, she could not remember anything about the content of the safety briefing. She did not mention that she was wearing a helmet for the activity. In those circumstances, I did not find her account reliable.

[37] It follows that I hold that Miss Hobbin fails on the merits of her claim.

Loss

[38] If I had been making an award, I would have approached solatium as follows. The immediate impact on Miss Hobbin was that she felt a bit confused and developed a severe headache. Mr David Sandeman, Consultant Neurosurgeon, prepared a report on her behalf dated 4 June 2010 and gave evidence at the proof. He had no criticism to make of the treatment she received at Belford Hospital. In his view, the decision to keep her under observation as an inpatient for two nights and not carry out a scan was appropriate. That was the correct approach to adopt where a patient had come in with an apparent knock to the head but no other signs or symptoms.

[39] The longer term consequences for Miss Hobbin were that after her return home to Wales, her confusion and headache persisted. She became agitated and said "I don't think I was the easiest person to live with". Mr Sandeman stated that her account of suffering for three to six months with persistent headaches, difficulties with concentration, lack of motivation, and change of personality with irritability were all "typical of concussion and recovery from concussion." In his view "the indexed accident is classified as a minor head injury". He ascribed her current symptoms to her long standing depression, a condition from which she had suffered since childhood.

[40] The most serious long-term consequence for Miss Hobbin is that she has lost the sense of smell in her right nostril. That was something discovered by Mr Sandeman during his examination. Miss Hobbin did not volunteer to him that her sense of smell had diminished. It had emerged from direct questioning by him. He then examined the matter carefully and found that she had a unilateral loss of the sense of smell.

[41] As, however, her left nostril functions normally, her sense of smell and taste remain intact. The JSB Guidelines indicate that the sum for complete loss of the sense of smell is between £16,400 to £21,600. It was suggested by the pursuer that I should award £18,000 by way of solatium and by the defender £7,000.

[42] In my view, solatium in this case is properly valued at £10,000. The principal factors in arriving at that figure are that (i) the pursuer did not require any treatment and did not attend her general practitioner; (ii) she was able to return to work after three weeks; and (iii) the diminution in her sense of smell did not wholly compromise her ability to smell or taste. I was not prepared to attribute the break-up of the pursuer's relationship some six months later to the accident. In my view that would be speculative.

[43] Past wage loss was agreed at £2,000, exclusive of interest. I would have awarded the sum of £500 by way of the services claim for the care provided by Mr Grace during the three weeks immediately after the accident. He said that he "looked after her as much as I could", but added "I used to do everything around the house anyway, being an ex soldier." I would have also awarded £100 by way of incidental expenses to cover the cost of buying medicines.