Occupiers' liability: "The real risk lies in riskless living"

In an increasingly litigious, compensation-focussed society, stories of people trying to apportion legal blame for the most trivial of accidents have become all too familiar. The idea that if someone suffers a loss or injury, a third party must necessarily shoulder the legal blame and be ordered to pay compensation has, in certain cynical quarters, taken root. Perish the thought that the loss or injury you suffered was actually nobody’s fault.

Against this backdrop of what many regard as a compensation culture, it is refreshing to come across cases where the Court rules that accidents do happen and that sometimes these accidents are simply a fact of life and nobody is necessarily to blame.  

This was the case in Harrison v Intuitive Business Consultants Limited & Others [2021].  The Claimant in this case brought a claim against the organisers of a challenging obstacle race. During the race she fell from an elevated monkey ring obstacle and suffered serious injuries to her leg and shoulder. In her view, the organisers were to blame.

The claim was brought under the Occupiers' Liability Act 1957.  That Act, in simple terms, requires an occupier of premises to ensure that visitors can safely visit and use the premises. You have a duty of care to those people visiting your property.

The Claimant in Harrison argued that there had been a failure by the Defendant to learn from accidents that had taken place at earlier events and the Defendant had failed to implement various safety and control measures to minimise the risks.

The Defendant argued that it had discharged its duty of care to the Claimant by providing an obstacle course “which was designed, constructed and maintained so that it was reasonably safe for participants to engage in the activity.”

The Claimant’s claim was dismissed. 

The Judge adopted what many would regard as a refreshingly pragmatic approach.  He concluded that:-

“The reality is that the majority of participants fell off the monkey rings at some stage during the course of the obstacle; and they fell whether they started from a seating or standing position. The vast majority, of course, suffered no injury but, in the end, it is a matter of chance as to how well or badly an individual may land on the ground.”

The Judge went on to rule that:-

“The Claimant elected to participate in the Bear Grylls race and, whilst, of course, she did not expect to suffer any injury when doing so, nevertheless, it was a risk of which she was well aware when she registered for the event and signed the indemnity.  Her confidence in her ability to complete this obstacle was not misplaced; it was simply a matter of grave misfortune that she was the victim of a serious accident.”

Clearly, this was a tragic and distressing incident for the Claimant and no commentary in relation to the case itself should detract from that.  However, the one extremely welcome aspect of this case was the decision of the Court to recognise that sporting and leisure activities have inherent dangers and that the removal of all the risk and danger is impossible.  It is arguably that risk that makes those activities attractive to participants in the first place.  Would an entirely risk-free event hold the same appeal? When does managing risk become suffocating mollycoddling?

Whilst one cannot disregard the duty to take reasonable care that is imposed by the Occupiers' Liability Act 1957, one perhaps might also be mindful of Robin Sharma’s quote that “When we stop taking risks, we stop living life.”

If you have any questions in relation to issues raised in this article, please contact Andrew Turner, Director in the Property Litigation Team, at aet@hughes-paddison.co.uk or on 01242 586 841.