Miss Emma Maylin v Dacorum Sports Trust trading as XC Sportspace [2017] EWHC 378 (QB)

The Claimant failed in her claim that the Defendant, which occupied and operated a rock climbing centre, was liable for her fall from its bouldering wall that caused her to sustain back injury.

Factual background

Miss Emma Maylin, the Claimant (“C”), who was aged 29 years at trial, claimed damages in respect of a back injury sustained in an accident on 11 January 2014, when she fell from a bouldering wall whilst undertaking rock climbing activities at a centre which was occupied and operated by Dacorum Sports Trust trading as XC Sportspace, the Defendant (“D”).

At D’s rock climbing centre (“the Centre”), there were climbing walls, which were high walls with various hand and foot holds where climbers would wear harnesses and use ropes. There was also a bouldering wall, which was a lower wall with hand and foot holds, with a deep mat at its base and where ropes were not used.

Those using the Centre’s facilities could either attend various sessions, courses and lessons which included supervision and training or visit the Centre under general admission, which did not include any supervision or training. At the time of the accident, members of the public were not allowed to enter under general admission unless either they had completed and passed a ‘rope’ test or were accompanied by someone who had (known as ‘buddying’).

On the date of the accident, C and a Mr Neil Proctor attended the Centre. C had never tried indoor rock climbing before, but Mr Proctor had completed a beginner’s climbing course at the Centre the previous year and had been signed off as ‘rope competent’. He was therefore a competent climber permitted by D to supervise C.

On arrival, C and Mr Proctor went to reception, where C paid for general admission for both of them. She was required to, and did, complete what was referred to as a disclaimer form. This included a Participation Statement which stated that:

“The British Mountain Council recognises that climbing and mountaineering are activities with a danger or personal injury or death. Participants in these activities should be aware of and accept these risks and be responsible for their own actions”.

C then provided yes or no answers to various questions, including those which asked her whether she understood that failure to exercise due care could result in her injury (to which she answered ‘yes’), and whether she agreed to abide by the Centre’s rules (to which she also answered ‘yes). The reverse of the form then contained rules and Terms and Conditions, including one which, in relation to bouldering, stated: “Always climb within your capabilities and descend by down climbing”.

C hired a harness after being told she would need one. It was made clear to her that Mr Proctor would be responsible for ensuring her harness was fitted properly. However, at no stage was any safety briefing given by any member of D’s staff to C.

After rope climbing for a short time on a climbing wall, C and Mr Proctor went to the bouldering wall, where C first watched Mr Proctor ascend and descend two or three times before making her own attempt. She used a route which Mr Proctor had told her was the easiest route to climb. On her third attempt at this route, once she had almost reached the top, her right foot slipped off the block and she fell, sustaining a serious injury to her back.

After the accident, D subsequently required novice boulderers to undertake an induction prior to bouldering.

The matter was listed for liability to be determined as a preliminary issue.

The claim was pleaded under the Occupiers Liability Act 1957, as well as in common law negligence. However, it was conceded at the outset of the trial that the accident occurred in the context of C undertaking an activity which had inherent danger and was not because of the dangerous state of the premises. The claim under the 1957 Act was therefore not pursued.

The court heard evidence from C and from Miss Erin Dabbs, who was employed by D at the time of the accident as its operations manager at the Centre.

C accepted that:

  • She had read the Participation Statement.
  • She was therefore aware that climbing was a dangerous activity, and that she should not attempt to undertake anything which she felt was beyond her skill level.
  • She had completed the front of the form, and had at least ‘skim read’ part of the Terms and Conditions, although she highlighted that she was doing so while paying for the session.
  • No one indicated that anyone employed by D would supervise or train her. She was aware of the presence of staff members in the climbing area, and she assumed that they would provide some supervision, but she admitted that she did not rely on anything done or said by any of D’s staff in so assuming.
  • Although she said she did not see any relevant signage, she was not looking for any, and relied on Mr Proctor to answer any questions she had.
  • There was an obvious risk of falling off the bouldering wall onto the mat. However, she believed that if she fell, it would break her fall.

C would not accept that the mat could not provide an absolute guarantee of safety, and maintained that if she had been made aware that it would not necessarily have prevented injury, then she would not have climbed as high as she did.

Miss Dabbs accepted that:

  • Novices should receive a safety induction or be supervised by a competent person, but maintained that the disclaimer’s information in addition to the relevant signage was sufficient to draw C’s attention to the relevant risks.
  • The fact Mr Proctor had passed a rope test was not relevant to bouldering, but insisted that the buddy system they used was considered best industry practice, and pointed out that the course which Mr Proctor had undertaken had included a bouldering section.

Miss Dabbs highlighted the following signage in place at the Centre at the time of the accident:

  • One on a wall to the right as the bouldering area was entered from the main hall, which included a warning to “avoid uncontrolled falls, they are likely to result in injuries…”, and a warning that “the soft mats do not make it any safer, broken or sprained limbs are common”.
  • A warning on the wall to the left as the bouldering area was entered that soft mats do not remove the risk of injury.

The issues

C submitted in essence that, in breach of its common law duty, D failed to draw C’s attention to the risks involved in the activity she intended to undertake and failed to provide basic, but not necessarily obvious, safety information to her to enable C to keep herself safe, and that these failures caused her injuries.

C relied on an Association of British Climbing Walls code of practice which stated that novice boulderers must receive a safety induction or be supervised by a competent person. It went on to recommend a safety induction for novice boulderers wishing to boulder unsupervised.

The judge stated that the key issue was whether D was under the duty to provide a safety induction or briefing, or to supervise C and warn her of the risk of injury despite the provision of matting. In line with Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ 646, this involved a consideration of whether the risks were inherent and obvious.

Judgment

The judge made findings that:

  • The risk of falling from the bouldering wall was plainly obvious and conceded to be so by C.
  • It was equally plain that no amount of matting could absolutely avoid the risk of even serious injury from an awkward fall, and the possibility of such an awkward fall was an obvious and inherent risk of climbing up a bouldering wall.
  • There being inherent and obvious risks in the activity, the law, as made clear in Poppleton, did not require D to train, supervise or warn, and as further made clear in Poppleton, it made no difference that D charged C to use the bouldering wall.
  • The claim therefore failed on that ground.
  • Even if wrong about that, the claim would have also failed because D took sufficient steps to draw C’s attention to the risks inherent in climbing, and in particular, the risk that the matting would not prevent injury in all cases.
  • This was because the Participation Statement, which C accepted she had read, made it plain that climbing was an activity with a danger of personal injury or death, and because there were notices warning users of the bouldering wall that matting did not make it any safer, and indeed at least one notice spelt out that broken and sprained limbs were common. These notices were there to be seen, regardless of whether C read them.
  • The mere fact that D could have done more, such as by having a receptionist state the risks verbally, or by providing a copy of the notice warning of the risks, and that the mat did not make it any safer, was irrelevant to whether the steps taken were sufficient.

Comment

This judgment will be welcomed by operators of leisure facilities. It highlights that the appropriate standard for assessing the liability of such operators is whether the risks of the activity that is the subject of any litigation are inherent and obvious. Where they are, it may be difficult for a claimant to establish liability.

The case additionally demonstrates the type of steps which an operator of a leisure facility can take which may show to the court that sufficient action was taken to draw the user’s attention to the risks of the activity. Providing written information when the user registers upon arrival, and having visible signage at appropriate places on the premises, will often be sufficient even if the operator does not verbally warn the user of them or undertake a safety briefing. However, inevitably each case will turn on its own facts, and providing greater warning than that provided in this case may still be appropriate.