Read the full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/QB/2013/229.html
The claimant (Robert Wilson) received £167,514 damages from the High Court for a lumbar vertebra fracture sustained while sliding down a fireman’s pole from an obstacle course on 4th August 2009. He alleged that the defendant’s adventure activities centre had breached their duty towards him in negligence and under the Occupiers’ Liability Act 1957 through both the actions (or more accurately omissions) of the instructor and through failing to provide an adequate safety system to cushion his landing from the obstacle. Ultimately he only succeeded in the former, but the case is interesting for the causative reasoning.
The incident occurred during the final dismount of the “Burma Bridge” section of the ‘Challenge Valley Course’. This course had been in operation for the last 20 years without serious injury and had been used by an estimated 300,000 people. It was set in a wooded area of the Defendant’s centre and comprised 16 obstacles of varying difficulty. The “Burma Bridge” obstacle was in three sections, an inclined log with footholds leading to a wooden platform set in the trees. From here, participants made their way across a rope bridge to a platform set in a second tree from which they then dismounted by using either a vertical scaffold pole or a ladder.
On paper, there is no allegation that the obstacle, activity or centre was inherently unsafe, indeed the ‘Burma Bridge’ was rated by the defendant as having a risk of 3 (for both likelihood of risk occurring and severity) on the traditional five part scale, and while the defendant had identified a number of contra-indicated groups (children under 10yrs, participants with certain special needs etc), the claimant was a 46yr old part-time scout leader, who had already completed the first obstacle (a 6ft log wall) without undue difficulty. Although there is evidence that he didn’t see himself as particularly athletic and had made self-deprecating jokes about being a “fat taxi driver”, there is no suggestion that he was not capable of safely navigating the course with the other 11-12 scouts attending the centre as part of a camp.
Clyne Farm Centre was a member of the British Activities Holiday Association (BAHA) and subject to their BAHA Code of Practice. There is evidence that they had undergone internal and external safety inspections and sensible risk assessments and instructor training notes had been produced in advance of the accident. At the time of the incident, an “occasional” instructor (Miss Haines) was accompanying the group to demonstrate and explain each obstacle. No criticism was made of Miss Haines’ qualifications or experience.
The key question facing the Court was whether these Codes and documents were appropriate and/or followed at the time of the incident?
On the day in question, the weather was wet and there had been heavy rain the night before. This was important as the Court heard how this increased the slipperiness of the pole, resulting in a number of dismounts that went faster than the participants were expecting. The Court held that Miss Haines did give two warnings about the weather conditions (once at the start of the activity  and repeated again during a demonstration ). The Court however rejected her evidence that she had given a third warning just before the dismount down the pole, as this was contradicted by her oral evidence .
Indeed, Mrs Justice Swift DBE was highly critical of Miss Haines’ “fanciful” evidence , preferring instead that of the claimant and the witnesses [110-113]. This was an important conclusion as Miss Haines had tried to argue that the claimant was the author of his own misfortune by showing off and deliberately letting go of his hands while sliding down. The Court however forcefully rejected this account .
The allegations of a breach of duty by Miss Haines can be summarised into two specific areas:
- Failure to demonstrate, or properly instruct the correct technique to be adopted when descending the fireman’s pole.
- Failure to offer the option of using a ladder to descend
The other suggestion raised, that Miss Haines failed to ensure that the Claimant had a good grip on the pole or had been stabilised as he moved to the platform, was later dropped following evidence that any attempt to support the weight of the participant would have been unsafe for both parties .
It is perhaps more straightforward to tackle the latter area first. The Defendant risk assessment and training notes specifically stated that all participants should be given the option to descend via either the firemen’s pole or a ladder located alongside the platform . While the Court held that Miss Haines had failed to explicitly offer this choice of alternative methods, it was probable that the claimant would have continued to use the pole (despite his express oral evidence to the contrary being rejected as having the benefit of hindsight) .
By contrast, the failure to demonstrate or instruct the correct technique is potentially more complex. Importantly, the Court accepted that there was not an absolute need to perform a demonstration for every obstacle, rather the nature and substance of this briefing was a discretionary judgment by the instructor taking into account the risks and the group experience . The problem in this instance is that Miss Haines did not adapt or review her briefing to match the group.
Miss Haines concluded that the method of sliding down a firemen’s pole was so obvious that it did not need either a demonstration or further instructions beyond that participants should grip it tightly . To a certain extent, the competent performance of the younger children confirmed this . Unfortunately, the claimant was not a young child and had no experience or knowledge in how to slide down the pole . It is not challenged that the accident was caused because the claimant ultimately did not wrap his legs around the pole to slow his descent , the question is whether the instructor should have given clear and specific oral instructions, or performed a demonstration, or some combination thereof? Somewhat surprisingly, the defence team did not introduce any additional evidence on this point from any other instructors at either the Centre or in the wider industry as to what they felt was appropriate or what their practice was . This seems a curious omission.
Ultimately at , the Court seemed content to leave this choice of methodology to the instructor’s professional opinion, what is clear however is that given the importance of ensuring that there was an instructor accompanying the group and advising on the safe way to navigate the obstacles, this omission to provide ANY advice constituted a failure to exercise proper care, compounded by the lack of adaptation for older participants [140-144].
The other limb of the claimant’s case is that the defendant had failed to provide appropriate shock absorbent material (for example loose particulates like woodchip, or bark) to reduce the risk and/or severity of any injury caused by impact with the ground. This was important as the Court accepted that the Claimant descended the pole at quite a speed with “his bottom taking most of the impact on landing” .
The Court heard evidence on this issue from two expert witnesses, Mr Andrew Petherick (claimant), Mr William Mackay (defendant) who conducted a joint inspection of the accident site on 16th March 2012. Although this 2012 examination of the site was potentially compromised by earlier excavations (not notified at the time to the claimant) which had been requested by the defendant’s initial expert (Mr Alan Preston) to refute whether the base of the pole was made of concrete , the Court did accept that the defendant merely complied with the requests from his expert and there was no intention to deceive . Good practice would however suggest that experts in this area are made aware of their responsibilities to the court process.
The Court also discussed at length the specifications provided by various British and European Standards (BS EN) on the type and depth of materials for play:
- BS 5696 ‘Play equipment intended for permanent installation outdoors’ (1976)
- BS EN 1177 ‘Impact absorbing playground surfacing’ (1997)
- BS EN 1176 ‘Playground equipment and surfacing (2008)
- BS EN 15567 ‘Sports and recreational facilities – Rope Courses’ (2007)
While there was some dispute as to whether these standards applied to this case, and if so, to what extent, ultimately though, this proved to be somewhat of a red herring. Although technically the BS EN standards did not have retrospective effect, the BAHA Code of Practice stated that “the operator must be able to demonstrate that the course meets current standards” [Appendix 7]. As such, the BS EN standards should be used as guidance as to what is appropriate . Interestingly, there is no question that the defendant was not aware of the requirements of the standard, as he had been on the working party to initially devise it! 
So, what were the specifications? The interpretation of the relevant standards centred around two key phrases :
Critical fall height – “The height from which is assessed a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury”
Maximum free height of fall – “The distance between any accessible part of equipment intended for play and the surface underneath”
From these two distances, it was possible to calculate the necessary minimum particulate depth for the landing area. The latter free height of fall determination was also important, because if the height had been greater than 3m, the defendant would have been in breach of BS EN15567 which required a braking device to be used. Three alternative formulations of calculating this height were discussed :
- from the seated position on the platform – 3.1m
- from the top position of the hands in a hanging position (which would have been greater than 3m). This was Mr Petherick’s preferred choice as it represented a worst case scenario 
- from a climbing position – Mr Mackay’s preferred choice, which according to Table 2, para 184.108.40.206 of BS EN 1176:2008, this distance is calculated from a maximum hand support (3.5m) minus 1m (which would result in a fall height of 2.5m)
The Court held that this latter figure was correct, thereby negating the need for a braking device. Ironically, while Dame Swift was critical of Mr Mackay’s understanding of the fall height calculation , it would seem that she has similarly erred in her calculations in  that the depth of particulate should be 250mm, as this omits the additional 100mm required by the table to allow for particulate displacement. Surely the correct depth value should be 350mm?
When this calculation is combined with Mr Petherick and Mr Mackay’s joint statement , this error is not critical, as the statement clearly identifies five areas of agreement that the impact attenuation area should be:
- 300mm deep with an additional 100mm to allow for displacement of the particulates
- The minimum dimensions of the landing area beneath the pole were laid down by BS EN 15567 and should have been approx. 1.38m (depending on the final agreed fall height)
- Lined with polythene (terram) to prevent impregnation of the landing area by soil or water
- Should contain no hard objects such as tree roots
- Should be regularly raked / dug up to avoid compaction
The reality for Clyne Farm is unfortunately a catalogue of errors, with none of the above requirements being met:
- Particulate depth was only 150mm
- The distance from the pole to the nearest edge of the tree was only 0.77m 
- There was no terram lining 
- Substantial tree roots were visible below 150mm in the landing area 
- The contemporaneous photograph of the landing area appeared to show heavy compaction in the vicinity of the bottom of the pole 
It is a fairly easy jump from this conclusion to establishing a breach of duty to provide a safe landing area. Surprisingly though, the case then came to a sudden stop. When proving causation, the Court rightly held that it was necessary to prove whether the “failure to provide adequate impact attenuation caused or materially contributed to his injury?” 
The problem for the Court is that it was not enough to state that there was a breach, rather the claimant also had to establish a causal link showing that proper impact attenuation surfaces would have protected against or reduced the severity of his injury. The failure to introduce any expert medical or technical evidence to support this, left the court with no choice but to dismiss this part of the claim !
To a certain extent this is an unsatisfactory situation. It is also somewhat difficult to reconcile with the other part of the claim for instructor breach of duty, because if the woodchips had been compliant with the relevant standards, then this could have been used as a defence against the injury. As it is, we are left with the situation that the breach of duty to instruct ‘caused’ the injury (the falling uncontrollably) while the lack of suitable impact attenuation surfaces (the heavy landing) were held to also be a breach but not necessarily causative. I’m confused, isn’t it the landing that hurts not the falling?