Fair warning – Pursuer who ignored safety instructions has action dismissed
The Sheriff Personal Injury court has affirmed the importance of assessment and mitigation of risk in finding that the defender in this personal…
Kieran v ACE Adventure Ltd  SC EDIN 47
The Sheriff Personal Injury court has affirmed the importance of assessment and mitigation of risk in finding that the defender in this personal injury claim was not in breach of the duty of care owed to a pursuer who had sustained injury during one of the defender’s outdoor pursuits.
The pursuer was a member of a stag party attending a white water rafting experience organised by the defender. En-route to the activity the party were required to negotiate a pathway through steep grassy terrain in order to reach a “put in” point from which they could commence rafting.
The pursuer had slid down one grassy bank in a sitting position and was subsequently warned by the trip leader, an employee of the defender, not to traverse the banks in this manner. The trip leader instructed the pursuer to keep to the footpath and proceed carefully. The pursuer disregarded this instruction and sought to proceed directly down a second bank.
The pursuer lost his footing after a few short steps on the second bank and flipped “head over heels” forward down the bank sustaining a fracture dislocation of his left hip. The pursuer was airlifted to hospital and required surgery to stabilise the damaged hip joint.
The Sheriff Personal Injury Court decision
In considering the pursuer’s claim that the injury was caused as a result of the defender’s negligence, breaching the common law duty of care owed to the pursuer by the defender, the court agreed with the pursuer’s assertion that the Management of Health and Safety at Work Regulations 1999 informed the common law duty of care owed despite this not being an employer’s liability claim. The court did however, note that a breach of one of the regulations would not necessarily constitute a breach of the duty of care as not all regulatory breaches would be due to negligence.
The court was clear that the defender in this matter owed the pursuer a duty of care. In examining whether this duty had been breached by negligence on the part of the defender, the court considered that the defender had carried out a risk assessment, that the court deemed to be appropriate, for the purposes of the 1999 regulations. The court also acknowledged that the defender had employed staff who had endeavored to create a safe environment for the pursuer and his group. The pursuer had been given clear instruction on the safest way to traverse the area and he had failed to take heed of this. The accident subsequently occurred as a result of the pursuer’s non-compliance with the instruction of the trip leader.
The court held that there had been no breach of the duty of care owed by the defender to the pursuer. The defender was granted a decree of absolvitor. In terms of quantum the court calculated that had the pursuer been successful they would have been entitled to an award in excess of £33,000.
The court’s decision in this case highlights the continued importance of proper risk assessments, preparation and training to ensure compliance with any potential duty of care owed by insured parties to their customers and the public where appropriate. The defenders were able to demonstrate to the court that they had taken appropriate measures both prior to the incident, in conducting a proper risk assessment, and at the time of the incident itself when employees of the defender were able to provide proper safety instructions to the visiting party. Had the trip leader not instructed the pursuer to stick to the safety of the path in the moments directly preceding the incident, the pursuer may have had a stronger case to put to the court.