For those seeking a more challenging form of exercise, events such as survival races, obstacle courses and mud runs are increasing in popularity. While these events are guaranteed to involve adventure and adrenaline, they also involve an inherent risk of accidents.
The recent decision of the English High Court in Harrison v Intuitive Business Consultants [2021] EWHC 2396 (QB) is a useful reminder of the importance for organisers of carrying out a full risk assessment. The case primarily concerned the duty on occupiers under the Occupiers' Liability Act 1957 to take such care as is reasonable in all the circumstances to ensure that visitors will be reasonably safe while using the premises. Although the 1957 Act only applies in England and Wales, Scots law adopts a similar approach, with the Occupiers' Liability (Scotland) Act 1960 imposing a duty on occupiers to take such care as is reasonable in all the circumstances to prevent injury or damage from reasonably foreseeable dangers.
The facts
The Claimant was participating in the 'Bear Grylls Survival Race', involving a mixture of obstacles and survival challenges. The Claimant was tackling 'The Jungle' – an elevated monkey ring obstacle – when she fell to the ground and suffered serious injuries to her leg and shoulder. She brought an action for damages against the organisers of the event and the subcontractors who were responsible for designing the course, carrying out risk assessments and managing the event.
The Defendants had carried out a risk assessment in relation to The Jungle prior to the event. This identified that there was a risk of a hard landing if a participant fell which could be mitigated if the staff told the participants to reach out for the rings from a seated, rather than standing, position. The Claimant alleged that the Defendants failed to implement their own risk assessment as they had not given the participants this instruction. She alleged that she would have adopted a seated position if she had been told to do so, and in that event, her serious injuries would have been avoided.
The decision
The Court held that the Defendants had taken reasonable care for the Claimant's safety, placing considerable weight on the fact that they had carried out risk assessments prior to the event. It was held that it was sufficient that the event staff had given the required instruction generally to a group of participants, including the Claimant, and they could not be expected to speak to each participant individually. In any event, the Court held that, even if the instruction had not been given, the Defendants would not have been negligent. It stated that accidents were an inherent risk in these events, and no amount of planning by the Defendants could eliminate the possibility of accidents happening from time to time. The Claimant had chosen to participate in the race and had been aware of the risk of injury when she registered for the event and signed a waiver form. The form stated that there was a serious injury and/or death from the activities involved in the race and that participants assume full responsibility for their participation, although the Court did recognise liability could not have been excluded if the injury had been caused by negligence on the part of the occupier. The Court did stress, however, that if the Defendants had failed to undertake an adequate risk assessment, this would have amounted to a breach of their duty of care.
Conclusion
The decision of the Court recognises that sporting events have an inherent risk of injury and it is impossible for organisers to eliminate that completely. Nevertheless, it is yet another reminder to occupiers of the importance of carrying out risk assessments in order to identify those risks and carry out the place measures identified to mitigate them. If this had not been done in this case, then the outcome would have been very different for the occupiers. While this is an English decision, we have seen the All Scotland Sheriff Personal Injury Court adopt a similar approach in the recent case of Elizabeth Morag McCann v Dumfries and Galloway Council [2021] SC EDIN 36 which we have reported on here.
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