Musical bumps?

The owners of a leisure resort were liable for injuries sustained by a guest taking part in an organised game akin to ‘musical chairs’ when she…

Osborne v Bourne Leisure Ltd [2019] WL 01244097

Executive Summary

The owners of a leisure resort were liable for injuries sustained by a guest taking part in an organised game akin to ‘musical chairs’ when she collided with another contestant.

Facts

As part of the onsite evening entertainment at their holiday resort, the defendant hosted a series of age-appropriate games for its guests run by employees of the defendant. The claimant took part in one of the games, based on musical chairs, overseen by resort host Mr. Stewart. As a result of a dispute between contestants, Mr. Stewart devised a tie-breaker round which was not approved, nor part of the game and which had not been risk assessed.

The claimant and another guest were despatched to opposite sides of the room. Mr. Stewart told them that he would count up to three and the first person to return to the central chair would be the winner. The contestants unfortunately collided when they reached the chair and the claimant sustained injury. The claimant brought a claim for damages, alleging that the defendant had been negligent. It was accepted by the defendant that they owed a duty of care to its visitors to take such care as was reasonable to ensure they were reasonably safe.

Judgment  

His Honour Judge Hughes QC found that aspects of Mr. Stewart’s evidence given at trial were contrary, in part, to earlier statements made and was not supported by the CCTV footage available. In particular, he found as matters of fact that whilst Mr. Stewart may have made some general health and safety announcements during the evening, including requests not to run, these were bland ‘form requests’ only - they were not repeatedly made during the games.

Further, Mr. Stewart made no attempt to stop the claimant’s opponent running in earlier rounds despite being aware he was doing so and contestants knew that no sanction was imposed if they did run. By using the tie-breaker words he did, Mr. Stewart clearly appreciated that the contestants would run as fast as they could.    

In His Honour Judge Hughes’ opinion, the duty owed by the defendant to the claimant was breached by running such an unapproved and “plainly dangerous” tie-break, with no rules other than to run as fast as possible, involving a “competitively aggressive” co-contestant, without enforcing a no running rule, and where the route was partially obstructed.

All those factors significantly increased the risk of injury to the claimant, her opponent or both. By deciding to run the tie-break, it was Mr. Stewart’s responsibility to take appropriate precautions to ensure that participants were reasonably safe. Unlike the duty of a referee, where such an overseer would not be deemed liable for lapses in the context of a fast-moving and vigorous contest, His Honour Judge Hughes distinguished the material game by stating that no one expected the game to turn in to a contact sport – it was instead a light-hearted fun entertainment game.

His Honour Judge Hughes also rejected the defendant’s allegation that the claimant had voluntarily accepted the risk of injury by agreeing to take part in the game. In the context of a quick-second tie breaker, the claimant could not be considered to have accepted the breaches of the duty of care by Mr. Stewart. Judgment was therefore entered for the claimant.

Commentary

There probably isn’t anyone unfamiliar with the game of ‘musical chairs’ and the risks involved in competitive adults taking part in such an event. Arguably anyone who elects to participate, rather than being a passive bystander, accepts a risk of being knocked to the ground or colliding with their competitors. In light of this, and a number of recent more senior judgments over recent times, where the defence of assumption of obvious risk has defeated claimants, the swift rejection of this defence in the case here does seem a little surprising.

Likewise, it is a little surprising that there is no mention of the concept of vicarious liability. Given the court’s acceptance that the defendant had appropriate risk assessments and other planning in place, and that the tie-breaker was the ‘spur of the moment’ decision of their employee, one might have expected the court to focus on liability arising from Mr. Stewart’s negligence on the night in question. That said, given Mr. Stewart seemingly failed to control the crowd, in particular he failed to prevent running contrary to the initial instructions, the ultimate decision is probably the right one. Those who run such games must accept that safety must not be sacrificed in the name of entertainment.

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