Cornish Glennroy Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 (QB)

Case No HQ10X01363Neutral Citation Number:[2012] EWHC 2360 QB
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/08/2012
Before
MR JUSTICE GLOBE
Between
CORNISH GLENNROY BLAIR-FORDClaimantCRS ADVENTURES LIMITEDDefendant
Simeon Maskrey QC and Nathan Tavares (instructed by Stewarts Law LLP) for ClaimantStephen Grime QC and Jonathan Bellamy (instructed by Ford and Warren) for DefendantHearing Hearing dates: 9 th, 10 th, 11 th, 12 th and 13 th July 2012
JUDGMENT
[1]On 19th April 2007, the claimant, Glenn Blair-Ford, suffered a catastrophic spinal injury in a tragic accident which occurred in the course of throwing a wellington boot (a “welly”) backwards through his legs at an outdoor pursuits centre operated by the defendant at the River Dart Country Park (“the country park”) in Devon. Mr Blair-Ford courageously attended every day of the trial. I was able to observe for myself the extent of his injury which sadly amounts to permanent tetraplegia. However, I have not been concerned with the issue of damages. The trial before me has been limited to the issue of liability.[2]It is his case that he was asked by the defendant’s staff to throw the welly adopting a method which, given the circumstances in which it was to be performed, was unsafe. His injury was a logical and foreseeable consequence of the actions of throwing it in that way. The defendant owed him a duty to exercise reasonable skill and care in the conduct of their activities and failed in that duty by failing to carry out any adequate assessment of the risks. If it had done so, the method of throw would have been modified.[3]It is the defendant’s case that this was a tragic but freak accident for which no blame attaches. The activities of the evening had been risk assessed in a reasonable way. The particular activity was subject to a dynamic risk assessment. By neither risk assessment process was any risk requiring any further action identified or identifiable. The accident was a chance event which occurred due to a particular combination of circumstances. Neither it, nor any similar accident causing serious injury, could have been foreseen.

Facts

[4]At the material time, Mr Blair-Ford was a six foot, 15 stones, 40 year old who was Head of the Design & Technology Faculty at Wilmington Enterprise College (“the college”) in Dartford, Kent. He had a history of playing rugby and throwing the discus when at school. Right up to the time of the accident, he was a keen cyclist who would ride 10 miles to and from school two or three times a week, would do a five mile run once a week, would swim regularly three times a week and was using light weights at home. He was fit and well.[5]In April 2007, he was one of five staff and about 40 pupils from the college on a residential adventure activity course operated by the defendant at the country park. The college organiser was a teacher, Mrs Judith Causer, who had taken about 16 pupils to the country park the previous year. The other staff members were teachers, Ian Priest and John Stanley, and a teaching assistant, Ms Dawn Peeling. The pupils were from year groups 7-10, with ages between about 11 and 14. Each teacher took charge of a group of about eight pupils. One aim was to get to know each other better in a way that would benefit both teacher and pupils back at the college.[6]Since its incorporation in 2004, the defendant company has been run by Roger and Clare Sell. At the time of incorporation, they were both only 23 years old. Despite their youth, both had backgrounds in outdoor pursuits with national governing body qualifications and practical experience in relation to outdoor adventure activities. Between 2001 and 2004, they had been employed as outdoors activity instructors by the organisation which used to run the country park, the Dart Training Group. When that organisation ceased operating in 2004, Mr & Mrs Sell decided to run their own operation. Their company provides adventure activities which include orienteering, canoeing, kayaking, raft building, caving, climbing, high rope, and mountain biking. The company holds a licence pursuant to the Adventure Activity Centres (Young Persons’ Safety) Act 1995 and the Adventure Activities Licensing Regulations 2004. The core business has been to provide one week residential courses for schools. The group from the college was one such group.[7]The company employed a number of instructors, including Stephen Armitage and Tiffany Aylett, now Armitage since their marriage. At the time of the accident, they were respectively 21 and 29 years of age. They too have outdoor pursuit backgrounds. Mr Armitage left school at 17 and became a lifeguard at a holiday park before starting training as a civil engineer. He was by then already a keen kayaker and indoor climber and eventually decided to abandon his studies in favour of a more active career. Mrs Armitage has a Masters Degree in ecology and environmental management. She spent five years working abroad for an international conservation agency before returning to this country to pursue an outdoor life. Each obtained national governing body qualifications in leadership. Additionally, Mr Armitage became a qualified first aider in outdoor environment and was trained in swimming pool safety including spinal complications associated with the risks of diving into shallow water. During the winter of 2006-2007, they attended a full-time four month intensive skills course in outdoor activities. In February 2007, they were employed by Mr and Mrs Sell as outdoors activity instructors at the country park. Upon employment, they undertook a full-time two week induction training course, run by Mr Sell and another senior instructor, Jennifer Horsburgh. It included training in relation to risk assessments for various activities.[8]Mr and Mrs Armitage were two of the main instructors who were involved throughout the college trip. During the week, Mr Blair-Ford remained with his pupils and participated in most events, including climbing a tall pole, pot-holing, rock climbing and walking along a wire. All activities passed without incident. Each was supervised by at least one instructor. The quality of the instructors was commented upon by the college staff. In an email after the accident, Mrs Causer referred to the “excellent support and leadership given throughout the visit”. In her statement, Ms Peeling said that “the instructors …. were brilliant”. In his statement, Mr Blair-Ford expressed “confidence in the instructors”.[9]The 19th April was the last day of the course. The staff arranged an evening fun event, the Mini-Olympics, to take place on the lawn in front of the house. The activities were of the type which might be organised at a school or village fete. They included a sack race, a “three-legged” race, a “tug of war” and “welly-wanging”. Mr Blair-Ford’s accident occurred during the welly-wanging event, which was the second event to take place.[10]Six eye witnesses gave oral evidence and the statement of a seventh has been admitted as further evidence. All bar Mr Blair-Ford wrote a short account within 24 hours of the accident. All bar the seventh provided more detailed statements two or more years later. They all agree that Mr and Mrs Armitage were the two instructors who were in charge and they had no discussion with the college staff about the details of the activities prior to the staff arriving at the lawn at the time the activities were ongoing.[11]Mr Blair-Ford’s recollection was that as he made his way down to the lawn, he did not know what to expect and had not yet decided to join in. When he arrived, he joined some teachers who were already there. The pupils were lined up in groups on the grass. There was no activity ongoing and he did not know what, if any, activity had already taken place. Mrs Armitage called him over to take part in the “Welly-Wanging” event. She was saying “come and do your bit”. The children were encouraging him saying “come on, come on”. As he went forward, his initial thoughts were that he would be throwing a Wellington boot conventionally with the idea being to throw it as far as he could. He had never previously thrown a welly and had never seen anyone else throw one. The only issue in his mind at that stage was whether he should throw it over-arm like a cricket fielder or round arm like a hammer thrower. When he reached Mrs Armitage, she told him that he had to throw the boot “backwards”. He thought she meant throw it backwards over his head. However, she then said “through your legs”. He then thought about a bending over method. He appreciated that it was some type of handicapping for the teachers to make it a bit fairer because he was bigger and stronger than the pupils but was unsure whether he was told that was the reason or he assumed it to be the case. He wasn’t given any instruction as to how to throw it and no one suggested that he should have a practice throw. All he knew was that there was some kind of line behind which he was to throw. Mrs Armitage was standing alongside him. The children were positioned so they wouldn't be hit.[12]He prepared to take the throw. He took hold of the boot and folded the leg over the boot. He stood upright with his arms out in front of him. He held the boot in both hands level with his head. He swung down once and then a second time. As he swung down, he bent over. On the third swing, he let go. He didn’t think there was any reason to hold back. He put a lot of force into it. He was trying to throw it the furthest that he could given the physical state he was in at that time. He must have swung down low because the impression he gained after the throw was that the boot went high up into the air rather than a long distance away from him. As soon as he let go, he felt his whole body rotating forward. It was as if the ground came up to meet him. Before he could respond, his head hit the ground. He rolled over on to his back and he could not move. He had been unable to break his fall with his hands because it had all happened too quickly and his hands had been between his knees. He had not expected it to happen. He had not thought it was a dangerous activity. He had trusted the instructors. He had not thought there was any reason to have held back. He had regarded it as a competition and he had wanted to throw it as far as he could to try and help the children in his group to win. In the short time between being told what to do and actually doing it, it had not occurred to him that he might over-balance. If the risk of over-balancing had been pointed out to him, he would have put his hand out to break the fall, adopted a stance to avoid falling, or taken more care because of an expectation that he might topple over.[13]Ms Peeling’s recollection was of going down to the lawn to observe but not to participate. When she arrived, there were no activities going on and she thought that the activities had not yet started. She sat on some steps with some other pupils who had also decided not to participate. The other pupils were all lined up. An instructor said that they were going “to throw the Welly” and the objective was to throw it as far as you could. She said she could not remember if she had heard any instructions being given to the pupils as to how to throw the welly and didn’t see any children throw the welly before Mr Blair-Ford. That was different to her detailed statement, wherein she had said that the male instructor demonstrated to the pupils how they should throw it under-arm and that, just before Mr Blair-Ford had gone forward to take part, she had seen two or three pupils throw the welly using the same under-arm technique that the instructor had demonstrated. She said that, when Mr Blair-Ford went forward, the male instructor said that the teachers would need to be handicapped to give the children a better chance. Mr Blair-Ford was told to throw the welly backwards through his legs. The instructor demonstrated how that was to be done but did not take hold of a welly. He just put his hands straight in front of him, bent slightly and demonstrated putting his arms backwards through his legs. Mr Blair-Ford then picked up a welly, took up his position, did one or two practice swings and threw the welly backwards through his legs exactly as he was shown. When he released the welly, his head was about two feet from the ground. He just fell forwards onto his head. She did not think his feet came off the ground. She heard a crack and he slumped over onto his side. She said that she had not seen Mr Priest practice throwing the welly backwards through his legs or throwing it before Mr Blair-Ford took his turn.[14]Mrs Causer’s recollection was that she left the house with Mr Priest and Mr Stanley but didn’t go directly to the activities. She took some photographs. A number have been produced. One shows Mr Stanley with two pupils just outside the house. Two others show Mr Priest sitting with one of the groups of pupils with a welly at the front of the group. By the time she reached the lawn where the activities were taking place, the pupils had just finished the first activity although she could not recollect what that activity had been. The pupils were in their groups. She agreed there would have been time for Mr Priest to have participated in a sack race whilst she had been up by the house taking photographs. She was encouraged to join a group and did so. Mrs Armitage said that the next activity was going to be a welly-wanging competition and explained that the aim was to try and throw it as far as possible. She saw Mrs Armitage instructing the pupils to throw it over-arm and forwards. Some of the pupils then took their throws. Mr Blair-Ford then got up to take a throw. The pupils started saying it was unfair for him to throw it in the same way as them. One of the instructors said that, to make it harder, the teachers, would have to throw the welly backwards through their legs. There was no debate about it or any demonstration. It was an instruction. Within a minute or two of Mr Blair-Ford getting up to throw, he made his throw. She did not see Mr Priest practising a throw or actually taking his throw before Mr Blair-Ford threw. She watched what Mr Blair-Ford did. He followed what he had been told. He opened his legs. He held the welly with two hands. She was unsure if it was a cut down version, if the top was wrapped round the boot and if there were any practice swings. However, what she said she saw was that he swung the welly from quite a high point down between his legs backwards and fell forwards landing on his neck between his feet.[15]Mr Stanley’s recollection was that he remained with Ms Peeling and was not participating in the activities. He wasn’t really watching what was going on. He thought he saw some children throw. He had a fuzzy recollection of Mr Priest having a welly in his hand and may have seen him throw it but he was unable to say when and how he did it. However, he remembered Mr Blair-Ford’s throw. Somebody had said it was his turn and he was watching him whilst chatting. Mr Blair-Ford took two or three swings through his legs, then threw and the next thing he was on the floor. At first Mr Stanley wasn’t concerned about him falling but then realised it was serious.[16]Mrs Armitage’s recollection was that the pupils were briefed before the events as to what they had to do. The first event was the sack race. During the race, the teachers started to come down to the lawn. She thought Mr Priest tagged on to the end of the sack race, possibly joining one of the relay teams. The second event was the welly-wanging event. The rules were explained to the children. They were told where to throw and that they should wait for their turn and not throw near to people. The children were encouraging the teachers to take part and the teachers were enthusiastic about it. She decided with Mr Armitage that there should be only one teacher in each group of children so as to make the teams as fair as possible. It was also suggested to the teachers that that they should be handicapped. The teachers agreed. Different handicapping options were discussed and her recollection is that all three teachers who were going to take part, including Mr Blair-Ford, were involved in those discussions with herself and Mr Armitage. She was unsure who suggested that the teachers should throw the boot backwards between their legs, but it was one of the teachers. She was unconcerned about that because she had previously seen adults throw wellies in that way when she was a child. Mr Priest had a practice go. When she saw him practise it, she remembered thinking that it appeared to be a safe method. Another handicapping option might have been to throw it with the non-dominant hand but she didn’t think that was as good a method because there was a possibility of it slipping out too soon and hitting someone. All of the teachers seemed happy to throw it backwards through their legs. It was therefore agreed that that should be the method of handicapping for them. No further guidance was given on how to throw it because it all seemed straightforward. As duty and lead instructor, Mrs Armitage said it was her final decision as to what handicapping option should be chosen. It was then that the two instructors took up their positions. One was by the throwing line. The other was by the landing position of the wellies. One of the groups went first, including Mr Priest. Then Mr Blair-Ford went forward and threw the welly. Her description of his throw was that he had his legs apart, he took a great big swing and gave the welly such a hoof that it went high in the air but not very far. As he did so, he fell strangely. She said she had not been expecting Mr Blair-Ford to throw it that hard because the whole activity was only a fun event.[17]In cross examination, Mrs Armitage agreed that there were some contradictions between her evidence and her statements. In relation to discussions, she had said in her first statement that the teachers were asked to throw the welly through their legs whereas in her later statement she had said one of the teachers had made that suggestion. In relation to Mr Priest, she had not referred to him taking a practice throw in her first statement, although that was mentioned in her second statement. Neither statement contained any reference to Mr Priest taking his competition throw before Mr Blair-Ford took his throw. In relation to Mr Blair-Ford, in her second statement she had referred to him as being very competitive and taking the competitions very seriously which suggested he was likely to throw the welly very hard. Neither statement referred to her considering the safety of throwing the welly backwards through the legs. Nonetheless, Mrs Armitage stressed that she did consider the issue of whether it would be safe for the teachers to throw the welly in that manner. Having done so, she had come to the conclusion that she didn’t think there would be any risk of injury to anyone. She denied the proposition that the only risks she was thinking about were whether anyone would be hit by the thrown welly. She confirmed that she had seen Mr Priest practice the throw and it had all looked safe to her.[18]Mr Armitage’s recollection was that sometime during the sack race, teachers appeared and Mr Priest joined in. After the sack race, the welly-wanging event was introduced. Consideration was given to the teachers joining in. His recollection was very similar to that of Mrs Armitage. He said there was a group discussion between the instructors and the teachers about what handicapping there should be. He remembered Mr Blair-Ford being present but could not remember him saying anything in the course of the discussion. There was mention of throwing with the non-dominant hand and throwing it backwards through the legs. Ian Priest practised throwing it through his legs. He did that whilst everyone was still chatting about the possibilities. Mr Armitage watched the practice. It didn’t look like a bad idea to him and it seemed preferable to using the non-dominant hand. It was agreed that that would be the method to be used by the teachers. He remembered some of the children throwing and then Mr Priest being the first teacher to take a throw. He held the welly in both hands, lent forward and threw it backwards between his legs. He was unsure if there were any swings before he let go. It didn’t go as far as the children in his group, so the marker was not moved. It was then that Mr Blair-Ford came forward. He had a smile on his face as if he was having fun. He grabbed hold of the welly and wrapped the leg round the boot. He leaned forward, took two practice swings and checked where he was throwing it. On the third swing, and with a lot of force, he let go, after which he fell forward onto his head. When he did that, his hands were between his legs. His feet didn't leave the ground. Mr Armitage said he hadn’t expected him to throw it as hard as he could because he wasn’t expecting the teachers to try and beat the children. It wasn’t that type of activity. He agreed in cross examination that his statement on the evening of the accident did not include his evidence about discussing the method of handicapping with the teachers, about Mr Priest practising the method, or about Mr Priest throwing first. He explained that it was a short statement and he had just not included it in his statement at that stage.[19]Mr Priest’s statement simply stated that he was present at the time of the accident and said “we were competing in a competition where welly-wanging was an activity..........Glen threw a welly between his legs. His back was facing the throwing area. He released the welly with great force and the momentum lifted his feet off the ground. He then landed on his forehead and made a loud thud”. He then summarised his efforts to help him. As already stated, it is a very short account, lacking any further details and it has not been able to be tested by oral evidence. Given similar deficiencies in like statements from the witnesses who have given evidence, whose accounts have included changes and amplifications, I am cautious about attaching too much weight to its contents.

Risk Assessments

[20]I turn next to the evidence about risk assessments.

Evidence of Mr and Mrs Sell

[21]Mrs Sell agreed that the policy statements and commitment contained in the defendant’s consent forms stated that the defendant gave certain assurances as to risk managing all parts of the programme. Extracts included the following statements:
“Our commitment to you is that risk is managed and minimised using the following best practice: • A rigorous assessment of the risks and safe working practise procedure is applied to all parts of the programme. • CRS Adventures staff are trained and monitored to ensure that they operate according to our safe working practices. • Hazards and risks will be identified and communicated to participants before each activity”
[22]Mr Sell confirmed that a risk assessment needed to be carried out in relation to welly-wanging and one had been carried out. Various documents were part of the process.[23]The first was headed “In Grounds Mini Olympics - Risk Assessment”. It covered static factor hazards such as getting lost, cutting hands, the terrain, medical conditions and lighting.[24]The second was headed “Activity Specific Operating Procedure – Mini Olympics”. That document was kept in the staff handbook. It covered general guidance for instructors as to preparation to be carried out prior to the Mini Olympics and what should be done during the activities. Reference was made to the “Instructor Notes” as to what games to play.[25]The third was headed “Instructors’ Notes”. It was also kept in the staff handbook. It listed all of the games to be played. In relation to welly-wanging, it said the following:
“Competitors are required to hurl a Wellington boot as far as possible within boundary lines from a standing start. After the competitor has thrown the welly, a marker is placed at the point of landing. Then the next person in line throws and so on. Safety: make sure the competitors are a safe distance in front of the remaining player”
Safety: make sure the competitors are a safe distance in front of the remaining player”[26]Mr Sell agreed that there was nothing written down in any document about any risk assessment about handicapping the teachers. However, he said he had risk assessed it in his head. He agreed that risk assessments were all about balancing the risk of injury with the difficulties of avoiding it.[27]Both Mr and Mrs Sell made the point that there was only so much that could be written down in the risk assessments. The instructors were trained to carry out on-site risk assessments as part of a dynamic process. Things frequently changed because of the weather, natural hazards, individual needs of participants or anything else that might arise on the spur of the moment. Instructors were therefore trained to use their experience, initiative and common sense in assessing risk on the job and as it arose.[28]In relation to training, Mr Sell explained that, during the induction process, there would have been discussions and briefings about safety generally. The Mini-Olympics would have been covered under what is called “Evening Events Training”. The records show that, in relation to Mrs Armitage, Mr Sell signed off an “evening events training document” on 27th February 2007 and an “evening events entertainments assessment” on 22nd March 2007. He didn’t sign off equivalent documents for Mr Armitage prior to the accident. The only document he signed off for Mr Armitage was an “evening events training document” on 2nd May 2007, which was after the accident. However, Mr Sell said that he believed Mr Armitage had been trained and assessed before the accident. At the time of hearing the evidence, my preliminary view was that Mr Sell had failed to sign the relevant document at the time and had merely signed it later. In support of that view was the fact that there were seven attendees on the induction programme who were mostly trained together. However, having considered the files of documents in more detail, I have concluded that it is more likely that Mr Armitage didn't receive the training until after the accident. However, I accept his evidence that he had observed other Mini Olympics events prior to the accident and the evidence that it was Mrs Armitage who was the Duty Instructor on the night.[29]Mr Sell agreed that, in theory, there might be a risk of overbalancing if someone threw a welly backwards though their legs; that if that happened and a fall could not be prevented by, for example, putting one’s hands out, then there was a risk of injury from falling onto one’s head. However, he said that, in practice, he had seen the welly being thrown backwards through the legs about 60 or 70 times. He couldn't recollect any occasion of someone falling during throwing. On no occasion, had he seen anyone get hurt. On taking over in 2004 he had examined the accident books going back over a number of years. They included all occasions when any type of first aid had had to be administered. The books showed that there had been no accident from this activity in the past and Mr Blair-Ford’s accident was the only accident from the activity since 2004. Mr Sell had therefore concluded that the risk was so minute, and the likelihood of injury was very low, that he hadn’t regarded it as a sufficiently high risk to draw to the attention of the instructors.[30]Mrs Sell agreed with her husband. She said that welly-wanging had been part of the Mini-Olympics throughout the time she had been at the country park. However, her practical experience of welly-wanging was more extensive than that and extended over many years. She had seen numerous instructors conduct a welly-wanging event. She had shadowed instructors who were conducting the event. She had been an instructor conducting the event. She had been a participant in such events. There had been many occasions when the welly had been thrown backwards through the legs. She estimated that she had thrown the welly backwards through her legs on about 50 or 60 occasions and had seen it done by others on a similar number of occasions. People had thrown it with one or two hands. Some had and some had not folded the leg over the boot and/or taken practice swings. On none of these occasions had she seen any difficulties or anyone fall or injure themselves. It was in this context that the risk assessments carried out by the defendant had been carried out. It was her view that throwing with the non dominant hand was more risky than throwing backwards through the legs although she hadn’t communicated that view to the instructors. She said it had not occurred to her that she should have told them. She said she had told the instructors to use their own discretion in relation to risk management matters in the field. It was up to their discretion to make decisions on the spot.

Evidence of the instructors Mr and Mrs Armitage

[31]Both Mr and Mrs Armitage confirmed in their statements that they attended training sessions in February 2007 and there had been consideration of hazards and risks associated with the Mini Olympics as part of the induction process. They were less certain in evidence as to precisely what training had been given. They both agreed, though, that the Mini Olympics was an activity which had had to be risk assessed like any other activity which was being undertaken. In the minds of both of them, the real risk involved in welly wanging was a risk of people being hit with the boot when it was thrown.[32]After the induction, at some time between February and when the accident occurred in April, both went along to a Mini Olympics being supervised by another instructor to gain experience as to how to run it and had watched a welly-wanging event. Neither could remember if any adults had taken part or, if they had taken part, in what manner they had thrown the boot. The next occasion that either had anything to do with welly-wanging was the time of the accident. It was the first time they had been in charge of the event themselves. Mrs Armitage was the Duty Instructor with Mr Armitage as second Instructor.[33]No specific advice had been given to them by anyone about what should be done if the teachers wanted to join in. However, they were familiar with the risk assessments that had been carried out and the instructors’ notes as to how the Mini-Olympics should operate. Both agreed that the instructors had to carry out further risk assessments on site in relation to any changes to any of the events.[34]Mr Armitage agreed that throwing it through the legs backwards was such a change and required a further risk assessment. That was done. He saw the demonstration by Mr Priest. He carried out a risk assessment in his head. He couldn’t see any risk to the spectators or to the thrower and was happy that it proceeded. He did not think anything could go wrong. That was reinforced after he had seen Mr Priest take his competition throw. He couldn't say if Mr Priest had thrown as far as he could. All he could say was that it didn’t go as far as the children had thrown. It never occurred to him that by throwing it as far as one could throw it that there was a risk of falling over. If he had thought there was such a risk he wouldn't have allowed anyone to have thrown it in that manner. This would have been because there wouldn't have been time to have considered how to manage that risk. It would have been simpler to have chosen a different handicapping method.[35]Mrs Armitage’s evidence was very similar. In accordance with her description of what had happened, when she saw Mr Priest have a practice throw she thought the method appeared to be a safe method. She thought that throwing it with the non-dominant hand would have been less safe. All of the teachers seemed happy to throw it backwards through their legs. That was the method of handicapping that was agreed and no further guidance appeared to her to be necessary because it all seemed straightforward.

Other evidence

[36]The other evidence in the case covered three issues: licensing requirements for outdoor activity centres, the experience of others who have been involved in welly-wanging, and reconstruction evidence.

Licensing requirements

[37]Ian Read is the Senior Inspector for the Adventure Activities Licensing Service for the Devon area. He has visited the country park many times since 2004. Licenses are required to run activities such as rock climbing, canoeing and caving. Welly-wanging does not require a licence. However, he confirmed that the risk assessment documentation produced by the defendant accords with what would have been required if a licence had been required. He is aware of welly-wanging. He has never known or heard of anyone sustaining a serious injury when involved in that activity.

The experience of others who have been involved in welly-wanging

[38]Graham Norris is an experienced Junior School Head Teacher who has taken groups of school children to the country park since 1985. In recent years, he has been taking groups of 40-45 children twice a year. Throughout, one of the regular activities has been the Mini-Olympics. His policy was to advise his staff that it should be treated as a fun activity and not a do or die competition. Welly-wanging had often featured as one of activities and he had personally joined in with it, as had many of his teachers. There had usually been a loose form of handicapping which included throwing the welly with the non-dominant arm or backwards through the legs. He said that over the years he had personally thrown the welly backwards through his legs on numerous occasions without difficulty, injury or concern. When he had done it, he had thrown it with one hand on the welly and not two.[39]Jennifer Horsburgh was employed by the defendant between March 2006 and January 2008 as an activity instructor and trainer. She had witnessed a number of welly-wanging events. She had shadowed other instructors and seen different instructors manage the event in different ways. She had been the instructor at welly-wanging events herself. Prior to the accident in April 2007, she had seen people throwing the welly in lots of different ways, including backwards through their legs. She had never witnessed, nor heard of, anyone injuring themselves whilst doing so.[40]Sally Raynesis a County Council Events Manager and a partner in an events business which organises unusual events. She had known about welly-wanging since she was a child. It took place during the summer in a Devon village where she grew up. She has run the “World Welly-Wanging Championships” which are held annually in Yorkshire. She described the activity being done by all age groups from two up to adults. Participants were separated out into different age groups or sexes. She had not been concerned with any handicapping systems, nor throwing the welly backwards through the legs.

Reconstruction evidence

[41]Professor Carlton Cooke is a Professor of Sport and Exercise Science at Leeds Metropolitan University. He was instructed to look at the mechanical aspects of Mr Blair-Ford’s throw. He asked Peter Mackreth to help him in a demonstration. He chose Mr Mackreth because he was a similar height and size to Mr Blair-Ford. He did not tell him what he was hoping to achieve by the exercise. He stood him in front of a foam pit and requested him to throw a welly through his legs backwards as far as he could throw it. The result has been video recorded. It shows Mr Mackreth holding the boot high above his head, swinging it down to ground level, and throwing it backwards through his legs. The effort led to him falling into the pit face down with his whole body parallel with the ground and with his feet off the ground. The DVD has been adduced in evidence as a reconstruction. Following that exercise, Professor Cooke then asked Mr Mackreth to adopt different positions to enable a throw to be made without toppling over.[42]In a pre trial ruling, permission was refused for any part of this evidence to be introduced as expert evidence. I have therefore considered it solely as reconstruction evidence. However, there are obvious differences between what has been described as Mr Blair-Ford’s throw and what can be seen in the DVD. Mr Blair-Ford didn’t start to swing the boot from above his head. He wasn’t facing a foam pit. Mr Mackreth knew that the case involved a person who suffered injury during the throw and there was a reasonable likelihood that that would have happened in the course of a fall. He agreed that subconsciously he would have been aware of the fact that it was safe for him to have fallen into the foam pit. He didn’t agree that he threw the boot intending to fall into the pit but the fact that the foam pit existed is a factor that was absent in relation to Mr Blair-Ford’s throw. When he fell, he fell face and chest forward with his feet in the air which is completely different to what happened to Mr Blair-Ford.[43]The additional videos of Professor Cooke’s attempts to maximise distance whilst staying upright do not represent any benefit to me in relation to reconstruction evidence. In conclusion, I have gained little, if any, benefit from the DVD evidence.

Law

[44]There is much common ground as to the legal principles to be applied to the case.[45]First, it is agreed that, by virtue of the common law as rehearsed in Barnes v Scout Association [2010] EWCA Civ 1476, and S.1 of the Compensation Act, the law of tort must not stamp out socially desirable activities just because an activity carries some risk. Whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach.[46]Secondly, it is agreed that there was a duty to risk assess the Mini Olympics, the individual activities within it and the particular method of throwing the welly backwards through the legs. In this respect, the importance of risk assessments has been commented upon by Lady Justice Smith in Allison v London Underground Limited [2008] EWCA Civ 71 and in Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ 66 at paragraphs 41 and 42, In summary, she has drawn attention to the fact that in the past insufficient judicial attention has been given to risk assessments. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. Sometimes, the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside. Risk assessments remain an important feature of the health and safety landscape and can provide an opportunity for intelligent and well-informed appraisal of risk and can form a blueprint for action leading to improved safety standards. That said, she has stressed that they are not a panacea and are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way. They may be a less effective tool where a lot of variables come into play.[47]Thirdly, the standard of care is an objective test of reasonableness which should take into account the circumstances and characteristics of the person or persons at risk.[48]Fourthly, dicta of general application to the law of tort, including personal injury claims, has recently been set out in the non-personal injury negligence and nuisance tree root case of Berent –v- Family Mosaic Housing and London Borough of Islington [2012] EWCA Civ 961. At paragraphs 19-20, Lord Justice Tomlinson made reference to Lord Reid’s observations in 1967 in “The Wagon Mound (2)” before drawing some conclusions from previous case law. Relevant passages for present purposes are as follows:19. ……..Lord Reid………said this at pages 641-644 “……..it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude, A reasonable man would only neglect such a risk if he had some valid reason for doing so: e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there can be little doubt but that Bolton v. Stone would have been decided differently. In their Lordships’ judgment Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”20. There are at least two points to note about this important passage. First, Lord Reid uses the expression “a real risk”, which was the expression used by the judge in this case. Secondly, one cannot in this context separate the enquiry as to reasonable foreseeability of damage from the related enquiry what is it reasonable to do in the light of the reasonably foreseeable risk. It may be reasonable to take no steps to eliminate a risk which is unlikely to eventuate and which will be of small consequence if it does. The social utility of the activity which gives rise to the risk falls to be considered. Carelessly leaking oil into a harbour is an activity of no value from which it is obvious that anyone should desist if it gives rise to only a very small risk of a disastrous fire (ie “The Wagon Mound (2)”). Playing cricket on the other hand is a socially useful activity – players should not be expected to desist unless at the location at which the game takes place it poses a risk the nature and extent of which outweigh the undesirability and/or inconvenience and/or difficulty and/or expense of eliminating the risk by stopping play at that ground and/or finding another more suitable location (ie Bolton v Stone).[49]Further to the generality of paragraph 2, Mr Blair-Ford’s case is presented as follows.[50]In relation to the risk assessment, no formal risk assessment for handicapping the teachers in the welly-wanging event had been carried out. Their involvement and handicapping was left to the discretion of the instructors who were novices in personally conducting the Mini Olympics. Stephen Armitage’s personnel file suggests he had not even been inducted into the evening activities prior to the accident. The instructors didn’t know if Mr Blair-Ford had seen any practice or actual throw carried out by Ian Priest, even if such throws were made, which on the evidence is unclear. He was being asked to throw in a way he had not thrown before, had no practice throw, and the position he was in was unfamiliar to him. Both instructors merely said that when they saw Mr Blair-Ford come to take his throw they could see no risk to him. There was no analytical assessment of the risk. The only risk being considered was the risk of someone being hit. No instruction had been given to the teachers to tone it down. Mr Blair-Ford was muscular and competitive and was likely to try and do what the children wanted, which was to try his best. In the event, no one has said that his throw was outrageous or exceptional and there is evidence from some witnesses that it was what was expected. All such matters suggest that no dynamic risk assessment of the throw was carried out.[51]In relation to foreseeability, the case is that serious injury was foreseeable, although it is submitted that the risk of any injury would suffice. Whichever, the evidence of witnesses about other welly-wanging events solely or substantially relates to different types of throws and/or does not amount to such a volume of evidence to suggest that a risk of serious injury wasn’t foreseeable. To the contrary, any proper assessment would have revealed a risk of falling onto the head, face or neck, without being able to break the fall, and a consequential risk of severe injury. Although not an identical reconstruction, the evidence of Mr Mackreth, is relied on to demonstrate that a forward fall from such a throw is repeatable. Reliance is placed upon Lord Reid’s observations in The Wagon Mound (2), which were referred to in the Berent case, about the “infinitesimally” small chance of a cricket ball hitting a pedestrian in Bolton v Stone. It is contended that, when the principles are applied to the facts of this case, the chance of him falling onto his head, face or neck may have been small, but it wasn’t lacking such reality that it could be disregarded.[52]In relation to the Compensation Act, the difficulty of taking precautions was minimal. There were other ways of handicapping such as using the non-dominant arm to make the throw, moving to a different start line, throwing backwards over the head or shoulder or, if the throw was going to be made backwards through the legs, giving a warning to ensure moderate force to avoid over-balancing, keeping one arm free as a support in case of a fall and/or taking a gentle practice throw to get used to the dynamics.

The defendant’s case

[53]Further to the generality of paragraph 3, the defendant’s case is presented as follows.[54]In relation to the risk assessment, Mr and Mrs Sell are operating in a particularly sensitive safety environment area The personal backgrounds of Mr and Mrs Sell and the instructors demonstrate their professionalism and experience in participating in and managing outdoor pursuits. The exhibited documentation shows that Mr and Mrs Sell have had correct regard for industry practice and safety issues. Their activities have not caused concern to the regulators of outdoor activities. The isolated lapse in recording Mr Armitage’s training does not detract from this general observation. The records establish a good accident record. This accident was the only accident during 2007 which was of sufficient seriousness to require a report and this is the only recorded incident involving either children or adults in relation to welly wanging. There is nothing intrinsically wrong in undertaking a dynamic risk assessment and Mr and Mrs Armitage gave evidence that one had been undertaken. It is relevant that the risk assessment was for a teacher and not for a child and all the teachers seemed happy with the decision. No alcohol had been taken. There was nothing in the behaviour of the teachers to cause any concern. The mere fact that Mr Blair-Ford appeared to be competitive didn’t mean he wouldn't have taken the common-sense approach of standing in a balanced position and limiting the force so he did not over-balance. The activity was adequately dynamically risk assessed.[55]In relation to foreseeability, reliance is first of all placed on the Uren approach on the facts of that case, particularly at paragraph 47, which concentrated on the foreseeabilty of serious injury not any injury. It is a similar scenario here. Secondly, in relation to what was foreseeable, the method was a benign semi-athletic activity which was not likely to give rise to the risk of serious injury. The evidence from Mr and Mrs Sell, Mrs Armitage, Miss Horsburgh and Mr Norris was that the method had been used many times before without any concern or suggestion that anyone had fallen and sustained even minor injury. The only evidence of any other fall comes from the “reconstruction” evidence of Professor Cooke in artificial laboratory conditions where Mr Mackreth knew he did not have to avoid falling. No evidence has been forthcoming of any previous incident anywhere at any time. Mr Blair-Ford didn’t think the method was risky before making the throw. None of the two instructors and five teachers who were watching thought the method was risky. That includes two, Mrs Causer and Mr Priest, who were physical education teachers whose training would have given them the ability to spot unsafe physical activities. The injury arose from a combination of circumstances, all of which needed to have been forecasted before a risk of the injury would have been foreseeable, namely, the use of considerable force; bending very low so the head was almost between the knees; falling forwards when the hands were still between the knees; the head rather than the chest, chin or face striking the ground; and the posture being such that the neck was sufficiently bent to allow it to be taken into forcible hyper-flexion when the body came down on the head. Finally, after consideration by the health and safety authorities, no enforcement action was taken suggesting they didn’t perceive a future risk to participants. Adopting the observations of Lord Reid in The Wagon Mound (2) as referred to in the Berent case, there was no “real risk”. What happened was“a mere possibility which would never influence the mind of a reasonable man”. It wasn’t reasonably foreseeable.[56]In relation to the Compensation Act, Mr and Mrs Sell were providing a service with a high measure of social value at various levels which included outdoor activities but go beyond to building relationships, character and teamwork. It provides benefits for children and teachers. The impact on social value if the activity cannot be pursued needs to be borne in mind.

Conclusion

[57]The now rather unusual civil proceedings exercise of close questioning during both examination-in-chief and cross examination of those who have given oral evidence has provided me with an excellent opportunity to assess their recollection and credibility. I am satisfied that all have been truthful. I am equally satisfied that all have done their best to give an accurate account of what happened. Notwithstanding these genuine attempts, their recollections have differed in a number of respects.[58]No witness has had the benefit of a memory refreshing detailed statement made when the incident was fresh in his or her mind. It was an emotional event and remembering items of fine detail two or three years afterwards in order to provide a more detailed statement cannot have been an easy exercise. It will have been an even less easy task to give evidence about it over five years after the accident happened. It is no surprise to me that in such circumstances there have been some differences in recollection.[59]What I am satisfied about is the following.[60]First, I am entirely satisfied that Mr and Mrs Sell were running an efficient and professionally run operation for the benefit of the public, and for school-children in particular. It was, and still is, an enterprise which provides immense social value. It has been correctly licensed and monitored and its systems have been complemented by regulators. Save for this incident, its accident record is excellent. There have been no other recorded incidents in relation to welly-wanging.[61]Second, the Mini-Olympics, and the activities within it, was not regarded as an event comprising activities of such inherent danger that it came within any licensing requirements. Mr Reed, though, has confirmed that the risk assessment documentation produced by the defendant in relation to the Mini Olympics accords with what would have been required if a licence had been required.[62]Third, although there was a formal risk assessment of the Mini-Olympics as a whole, there was no formal risk assessment and no advance plan as to the method of handicapping for the teachers before the welly-wanging event was about to begin. That, though, is not decisive. As Lady Justice Smith indicated in the Uren case, formal written risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way, and they may be a less effective tool where a lot of variables come into play. Here, I am satisfied that there were a lot of variables and I do not find it to be a valid criticism that there was no formal risk assessment. A dynamic risk assessment was acceptable.[63]Fourth, I accept the evidence of Mr and Mrs Armitage that there was discussion with teachers about the method of handicapping. They have a clear recollection that that happened and I accept their evidence. In this respect, I am satisfied that Mr Blair-Ford’s evidence is either inaccurate or he didn't hear what was being said. However, I am satisfied that he was in the vicinity when the discussion was taking place and Mr and Mrs Armitage had no reason to suppose that he hadn’t heard what had been going on. I am equally satisfied that the ultimate request for the teachers to use that method if they were going to take part was a request made by the instructors and it was Mrs Armitage who was the one who articulated it.[64]Fifth, I accept the evidence of what Mr and Mrs Armitage say they saw (summarised in paragraphs 16-18 and 34-35) that Mr Priest first of all practised the method and then did throw the welly after the pupils in his group and before Mr Blair-Ford threw. In that others said otherwise, it is not inconsistent with Mr and Mrs Armitage’s evidence. It may be that others just didn’t see Mr Priest doing both things or, for some reason, have forgotten it. Independent support that Mr Priest was ready and prepared to participate comes from two of the photographs taken by Mrs Causer showing the group and Mr Priest in it with a welly in the foreground of the picture.[65]Sixth, I am satisfied that, during this process, a dynamic risk assessment was carried out by Mr and Mrs Armitage. I accept the evidence of both of them that they thought about the dangers, which were not limited to a consideration of whether anybody in the audience would be struck with a flying boot, and concluded that they envisaged no risk of any injury at all, still less any serious injury. As a result, no steps needed to be taken to modify the method or to provide any specific warnings to Mr Blair-Ford.[66]Seventh, I accept the accuracy of Mr Blair-Ford’s evidence of how he threw the welly. That means that, when he came to throw it, his head would have been low down by his legs. His hands went through his legs with a lot of force throwing the welly high into the air. By virtue of the angle of the throw in that position, he did not gain much distance, which was not what he intended. It was then that he toppled over and fell onto his head and neck rather than toppling forwards onto his face and chest. I agree with the defence proposition that the execution of his throw brought together a combination of circumstances which cumulatively could not have been foreseen, namely, considerable force, bending very low, positioning the head almost between the knees, falling forwards when the hands were still between the knees, and striking the ground with his head and neck at such an angle as to cause the catastrophic injury sustained by him. His was no ordinary throw. The fact that the welly went almost straight up in the air rather than being thrown a long distance is powerful evidence that he threw it and fell in an unusual way that was not and, in my judgment, could not have been foreseen.[67]Eighth, I am satisfied on the facts of the case, in like manner to the finding explained in paragraph 47 of Uren, that the risk which needed to be foreseen was the risk of serious injury and not just the risk of any injury. However, even if the test were to be otherwise, I am equally satisfied on the totality of the evidence which I have heard that the result would be the same if what had to be foreseen was the risk of any injury. Notwithstanding the submission on behalf of Mr Blair-Ford to the contrary, I am satisfied that there is good evidence of a number of people having witnessed an appreciable number of occasions of people throwing the welly backwards through the legs with two hands with no difficulty, no falling and no injury. The evidence of everyone who was present being unconcerned about the activity taking place and not immediately appreciating what had happened is further evidence in support of this proposition.[68]In conclusion, and for the above reasons, I am in agreement with the defence submissions. On the evidence I have heard, the risk of injury was not such that steps should have been taken to guard against it. In my judgment, the evidence of its likelihood was indeed “lacking such reality that it could be disregarded” and was at most “a mere possibility which would never influence the mind of a reasonable man”. There was no foreseeable real risk. Extremely sad though it be, this was a tragic and freak accident for which no blame can be established. In such circumstances, the social utility of the activity which gave rise to incident does not fall to be considered.[69]The claim must be dismissed with judgment to be entered for the defendant.

Cited in 1 later judgment