PI Brief Update

Wilson v GP Haden Trading as Clyne Farm Centre [2013] EWHC 1211 (Swift J, QBD) - Geoffrey Weddell, 1 Chancery Lane

30/06/13. On 1^st August 2009 the claimant, who is a scout leader, was leading a troop of scouts over a series of obstacles on an adventure course at the defendant’s premises. One of the obstacles was a so-called Burma bridge which involved crossing a rope bridge at a height of some 3 metres and then sliding down a fireman’s pole to ground level. The claimant failed to grip the pole properly and slid down it at high speed. He struck the ground with great force, causing injury to his spine.

He brought proceedings for damages for personal injuries against the operators of the site, alleging a failure to give appropriate instruction and supervision and a lack of impact attenuation. The claim was tried by Swift J who found for the claimant.

The case is interesting for two reasons. Firstly, and unusually, it was not in issue that the defendant owed the claimant a duty to provide him with appropriate instruction and supervision. Most claims against providers of adventure activities fail because the claimant is unable to establish the existence of that duty. For example, in Trustees of the Portsmouth Youth Activities Committee (a charity) v Poppleton [2009] PIQR 1, the Court of Appeal held that in general no duty was owed by the providers of adventure equipment to persons of full age who chose to make use of equipment that they knew carried some risk of injury. The claimant was a young man who had leapt from a climbing wall at the defendant’s premises in order to reach an overhanging projection. He missed his target and fell to the matting below, where he suffered injuries that rendered him tetraplegic. The Court of Appeal dismissed his claim on the footing that the operators of the climbing facility did not owe him any duty to supervise or instruct him.

In the case of Wilson however, the operators of the site had stated in their promotional material that expert tuition would be provided in the use of the equipment. In the light of that assertion, the defendant did not dispute that it owed the claimant a duty to provide him with the training and supervision that he could expect from a reasonably competent instructor. The issue for the court was whether the training provided met the relevant standard. The court held that it did not.

The second interesting feature of the case was the court’s approach to the defendant’s application for an issue-based costs order. The claim as pleaded had two strands; (1) that the supervision and training provided were not of the relevant standard, and (2) that the impact attenuation material at the base of the fireman’s pole was insufficient. This latter part of the case was the subject of live evidence at trial from experts. The court found that the impact attenuation material was inadequate and that its defective state amounted to a further breach of duty by the defendant. However the judge also found that the claimant had failed to prove that his injuries would have been avoided or lessened if adequate impact attenuation material had been provided. Accordingly the defendant succeeded on the issue of impact attenuation. When the question of costs was argued, the defendant made an application for an issue-based costs order to reflect its partial success.

Both parties had filed up to date estimates of costs for the trial. The judge agreed in principle with the defendant’s submissions that it was entitled to a costs order that would reflect the parties’ relative degrees of success. However rather than stipulate that the claimant was to pay the defendant’s costs relating to the issue of impact attenuation, leaving the figures to be arrived at after what would inevitably be a dispute between law costs draftsmen at a subsequent detailed assessment hearing, the judge used those parts of the costs estimates relating to the experts as a ready reckoner and arrived at a figure of 5% of the overall costs that could fairly be attributed to the issue of impact attenuation. Accordingly the court ordered that the claimant should have 95% of his costs. The attractiveness of that approach is obvious. It saved time and provided certainty. It might be that in time its use is adopted more generally.

Geoffrey Weddell
1 Chancery Lane

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