Wilson v Haden (t/a Clyne Farm Centre) [2013] EWHC 229 (QB)

[2013] EWHC 229 (QB)Case No HQ11X00867
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/02/2013
Before
THE HONOURABLE MRS JUSTICE SWIFT DBE
Between
ROBERT BERNARD WILSONClaimantG P HADEN TRADING AS CLYNE FARM CENTREDefendant
Geoffrey Weddell (instructed by Hart Brown Solicitors) for ClaimantGlyn Edwards (instructed by Morgan Cole Solicitors) for DefendantHearing Hearing dates: 16 – 18 October 2012
Judgment

THE CLAIM

[1]The claimant, Robert Bernard Wilson, claims damages for personal injuries and consequent loss and damage resulting from an accident which occurred on 4 August 2009 whilst the claimant was visiting the defendant’s premises at the Clyne Farm Centre, near Swansea.[2]The defendant owns and operates a business offering a variety of adventure activities to individuals and groups visiting the Clyne Farm Centre. Those activities include a cross country assault course known as the Challenge Valley Course (which I shall refer to on occasion in this judgment as “the Course”). On 1 August 2009, the claimant, who is a scout leader, accompanied a party of scouts together with a number of other supervising adults on a week’s camp at the Clyne Farm Centre. The costs of the holiday were stated in the relevant invoice to include, inter alia, expert tuition, facilitation and specialist equipment for the Challenge Valley Course.[3]Whilst the claimant was negotiating an obstacle known as the Burma Bridge on the Challenge Valley Course, he fell several feet to the ground, as a result of which he sustained a fracture to his first lumbar vertebra which required surgical fixing. As a consequence of that injury, he suffered pain and restriction in his activities and his ability to pursue his work as a self-employed taxi driver was impaired.[4]Proceedings were commenced on 9 March 2011, alleging negligence on the part of the defendant, his servants or agents, together with breach of duty under the Occupiers’ Liability Act 1957 (the 1957 Act) and breach of contract. A Defence was filed, denying liability and alleging contributory negligence. Having heard evidence and submissions on liability and quantum between 16 and 18 October 2012, I reserved judgment which I now deliver.

THE CHALLENGE VALLEY COURSE

[5]The Challenge Valley Course is set out in a wooded area at the Clyne Farm Centre. It comprises a number of obstacles, of which the Burma Bridge is the second. The Challenge Valley Course has been in operation for 20 years. The defendant, who is a chartered structural engineer, devised the Course with the assistance of a former Army assault course instructor. His unchallenged evidence was that the Course had remained essentially unchanged since its inception. During that time, an estimated 300,000 people - half of them children - have used the Course. The Clyne Farm Centre caters for organised groups of all ages, as well as for individual members of the public. No accident similar to that of the claimant has occurred previously. The first obstacle[6]The first obstacle of the Challenge Valley Course was a six-foot high wall made of logs: see photograph 1 at TBB/295.

The Burma Bridge

[7]The second obstacle was the Burma Bridge, where the claimant’s accident occurred. The approach to the obstacle can be seen in photograph 3 at TBB/296 and photograph 1 at TBB/391. The first element of the Burma Bridge was an inclined log with footholds, leading up to a wooden platform in the fork of a tree about eight feet above the ground. A rope handhold was available for the use of participants when climbing up the log. The second element of the obstacle was a rope bridge slung between the first tree and a second tree some 11.4-12.7 metres (45-50 feet) away. The rope bridge is visible on photograph 3 and also on photograph 2 at TBB/295. Participants on the Challenge Valley Course would step off the rope bridge onto a wooden platform (the exit platform) in the second tree. From that exit platform, they would proceed to the third and last element of the Burma Bridge, which consisted of a fireman’s pole (in fact a vertical scaffold pole) which they would then slide down in order to return to ground level. The fireman’s pole is just visible behind the second (far) tree in photograph 3 and, more clearly, in photograph 5 at TBB/297. It is well illustrated in the photographs at TBD/719 and TBD/721. The claimant’s accident occurred whilst he was negotiating the fireman’s pole.[8]Also visible on the photograph depicting the approach to the Burma Bridge (photograph 3) is a ladder fixed to the second (far) tree. This ladder was available for the use of participants who did not wish, or were not able, to descend from the tree by means of the fireman’s pole. THE STEPS TAKEN BY THE DEFENDANT TO ENSURE THE SAFETY OF PARTICIPANTS ON THE CHALLENGE VALLEY COURSE Risk assessment[9]Under the provisions of Regulation 3 of the Management of Health and Safety at Work Regulations 1999, the defendant was required to make a suitable and sufficient assessment of the risks to the health and safety of persons using the Challenge Valley Course arising out of or in connection with the conduct by him of his undertaking. The purpose of such an assessment was to identify the measures he needed to take to comply with the requirements and prohibitions imposed upon him by the relevant statutory provisions. The defendant carried out a risk assessment for each of the obstacles on the Challenge Valley Course, as well as an assessment of the general risks such as those which might be caused by the weather or by any relevant medical condition from which a participant might suffer. Potential risk levels were graded from 1 (“unpleasant”) to 5 (“very severe”) and the likelihood of the risk happening was classified from 1 (“very little”) to 5 (“quite likely”). In practice, none of the obstacles on the Challenge Valley Course gave rise to a classification of more than 3, whether for potential risk level or the likelihood of the risk materialising.[10]The risk assessment for the Burma Bridge indicated that groups including children under 10 years or with certain special needs should not be allowed to attempt the obstacle. Otherwise, the assessment was: Risk Risk level 1-5 Likelihood 1-5 Control Measures Slipping on take off pole, bridge and exit 3 3 Ensure instructor demonstrates and that group are watching each phase of the demonstration. Instructor to be on exit platform and directing each participant individually across obstacle.

Instructor training

[11]The defendant employed a number of different instructors, both full-time and part-time, to provide instruction and supervision for persons participating on the Challenge Valley Course and in other activities taking place at the Clyne Farm Centre.[12]The defendant provided detailed written Training Notes (at TBC/498-507) for his instructors, setting out the procedure for supervising participants on the Challenge Valley Course. The Training Notes, which were compiled by an instructor employed when the Challenge Valley Course first opened, included the following points.[13]Under the heading ‘Running the Activity’, the Training Notes stated: “[Participants] will be shown the safe and easy way to negotiate the obstacles, stress to them that they are to follow your instructions to the letter and to only attempt the obstacle in the manner that they have been shown.” and: “Make sure your group can see and hear you when demonstrating obstacles – i.e. the Burma Bridge – get them to stand to the left of the bridge where they can see what you are doing…”.[14]Under “Burma Bridge Safety”, the following instructions appeared:
“Caution should be taken when using the fireman’s pole. Instructors can support the participant by holding the back of their trousers at waist level until they are on the pole.” and under “Burma Bridge : Instruction Points”: “When the participants reach the exit platform give them the choice of descent via the ladder, fireman’s pole … Descent via the fireman’s pole can prove difficult for some. … Get the participant to sit down on the edge of the platform, and then reach forward so that both hands are on the pole below the rope support. Next they need to lift themselves onto the pole wrapping their legs around the pole as they do so (you must be sure that they get a good grip with their legs as this takes some of the weight off their arms and stops them from swinging off). For nervous participants you can sit alongside them on the platform and support them using their waistband until they are on the pole.”
[15]It is clear from the Training Notes that, at one time, there was a third way of exiting the Burma Bridge (in addition to the fireman’s pole and the ladder), namely a rope. It seems that the rope was removed some time in 2006.[16]The evidence was that, in addition to the Training Notes, instructors would have in-house training sessions from time to time. The defendant’s evidence was that the sessions would be conducted by individuals experienced in the field of outdoor activities and familiar with the practices in use at the Clyne Farm Centre and other similar centres.

Inspections

[17]The Clyne Farm Centre is a member of the British Activities Holiday Association (BAHA) and is subject to the BAHA Code of Practice. The evidence was that, until 2008, the BAHA would conduct its own annual inspection visit at the Centre, which had resulted on each occasion in “satisfactory” (as opposed to “unsatisfactory”) gradings. From 2008, BAHA inspections were conducted every two years only, leaving the defendant to conduct his own inspection in the intervening years. The defendant had carried out an inspection on 13 July 2009, after which he recorded that conditions at the premises (including the Challenge Valley Course) were “satisfactory”. The defendant’s evidence was that instructors employed on the Challenge Valley Course would carry out daily visual inspections of the obstacles and would report any problems to him. The defendant also employed a maintenance team which would carry out any necessary remedial work.

THE EVENTS LEADING UP TO THE ACCIDENT

[18]At the time of his accident, the claimant was 46 years old. At 5 feet 10 inches tall, he weighed 13½ stone. He did not take a great deal of exercise and did not regard himself as very fit. He was, however, physically quite strong.[19]The claimant has been involved with the Scout movement throughout his adult life. At the time of the accident, he occupied the position of Group Scout Leader, with responsibility for Beavers, Cub, Scout and Explorer groups covering an age range from 6 to 18 years. His duties included assisting in the organisation of the annual summer camps. That task involved choosing the location and the activities to be undertaken, arranging for the appropriate number of adults to accompany each party of scouts and dealing with the financial arrangements. In addition, he would sometimes attend camps as one of the supervising adults.[20]The claimant had attended camps at the Clyne Farm Centre on three previous occasions, in 1992, 1998 and 2001. During the intervening years, he had attended camps at a number of other locations. His evidence was that he had little recollection of his previous visits to the Clyne Farm Centre. He remembered that the scouts who had attended previous camps there had been on the Challenge Valley Course. He had a vague recollection of being on the Course with the scouts and of negotiating the Burma Bridge on at least one previous occasion. However, he was adamant that he had not descended from the obstacle by way of the fireman’s pole. Indeed, he said that, before his accident, he had never in his life slid down a fireman's pole. He thought that he must have previously descended from the Burma Bridge by way of the ladder, although he could not remember doing so.[21]Before booking the camp for August 2009, the claimant visited the Clyne Farm Centre again, to check that the facilities were appropriate. On that occasion, he did not go to the area of the Challenge Valley Course.[22]The party of scouts at the camp consisted of about 24 scouts. The claimant and Mr Martin Kavanagh, Scout Leader, were in charge of the party. Mr James Bellis, Assistant Scout Leader, also attended the camp, together with Mr Kavanagh’s wife, Mr Bellis’s wife and their adult daughter, and Mr Gary Sprunt, who had become interested in scouting through his friendship with Mr Kavanagh.[23]After their arrival on 1 August 2009, the party undertook a number of activities under the supervision of the claimant and Mr Kavanagh. On the day of the accident, the claimant, together with Mr Bellis and Mr Sprunt, accompanied 11 or 12 of the older scouts on the Challenge Valley Course, whilst Mr Kavanagh took the younger scouts on a canoeing trip. Both groups were supervised by instructors from the Clyne Farm Centre. The instructor for the group which was to go on the Challenge Valley Course was Ms Sally Haines. The group included Mr Kavanagh’s daughter, Camellia, who was aged 14 years, together with his stepdaughter, Lauren, and Thomas Bugler, both of whom were 13 years old.[24]At the time of the claimant’s accident, Ms Haines was 24 years old and had recently graduated from Swansea Metropolitan University where she had completed a Degree in Leisure Management and a Higher National Diploma in Adventure Sports Management. In addition, she had qualifications in a number of outdoor activities. She had worked at the Clyne Farm Centre for three months in 2007 as part of her degree course. After that time, she had continued to work part-time at the Centre at weekends until she had completed her University course. In May 2009, she obtained full-time employment elsewhere but continued to work for the defendant on an occasional basis. She was working in that capacity when the claimant had his accident on 4 August 2009.

The day of the accident

[25]The weather during the days before the accident had been wet and heavy rain had fallen during the night of 3/4 August 2009.

The preliminaries

[26]The group of older scouts, together with the claimant, Mr Bellis and Mr Sprunt, met Ms Haines for the first time just before starting on the Challenge Valley Course. She gave them an initial briefing. Her evidence, which was not disputed, was that, during that briefing, she had issued a general warning that the Course would be wet and slippery and she had also told the group that no one had to attempt any obstacle that he/she did not wish to undertake. The group then undertook some warm-up exercises under her direction.

The first obstacle

[27]The claimant and the scouts, together with Ms Haines, then proceeded to the first obstacle on the Challenge Valley Course, the log wall. It was not mandatory for an adult member of the group to accompany the scouts on the Challenge Valley Course but the claimant liked to join in with the scouts’ activities whenever possible so he elected to participate. Mr Bellis and Mr Sprunt did not participate; they both had cameras and intended to take photographs of the group negotiating the obstacles. Ms Haines gave a physical demonstration of how to climb over the wall, together with oral instructions. Subsequently the group, including the claimant (see photograph 1 at TBB/295), negotiated the wall without undue difficulty. The Burma Bridge The inclined log

The Burma Bridge

[28]The group then came to the Burma Bridge, where Ms Haines explained how to climb up the inclined log and gave a demonstration by climbing up the log and onto the wooden platform in the first tree. Whilst she was doing this, the claimant and the scouts were standing to the right of the inclined log, in approximately the same place as the photographer in photograph 3 at TBB/296.

The rope bridge

[29]Once at the top of the log, Ms Haines walked across the rope bridge, explaining as she did so the way the participants should place their feet and hands in order to negotiate it safely. The evidence of the claimant and his witnesses was that, whilst Ms Haines was doing this, the group remained standing in the same position as previously. Ms Haines’ evidence was that she would have asked the group to move about two metres nearer the rope bridge than their previous position so as to have a better view of her as she demonstrated how to negotiate the rope bridge. She said that she would have walked halfway across the bridge and then stopped in order to give further instructions to the group.[30]Among the instructions Ms Haines gave to the group was a direction that, having climbed up the inclined log onto the platform in the first tree, each participant should then wait for a signal from her before beginning to cross the rope bridge towards the second tree. She would be waiting for each participant when he/she reached the second tree. Ms Haines’ evidence was that, whilst she was on the rope bridge, she had repeated her earlier warning about the wet and slippery conditions. The claimant and most of his witnesses did not recall that. However, Mr Sprunt remembered hearing her do so.

The ladder option

[31]There was a dispute as to whether, at that stage, Ms Haines had drawn to the attention of the group the fact that there was an alternative means of descent from the second tree, namely the ladder. Ms Haines’ evidence was that she had done so. The claimant was certain that she had not. None of the other witnesses recalled Ms Haines giving that information.[32]The photographs (in particular photograph 3 at TBB/296) demonstrate that the ladder was plainly visible both from the area where the claimant and scouts were standing before they began to negotiate the Burma Bridge and from the wooden platform in the first tree, where participants had to wait before crossing the rope bridge.[33]Nevertheless the evidence of those witnesses who had negotiated the Burma Bridge – the claimant, Lauren and Camellia Kavanagh and Thomas Bugler – was that they had not seen the ladder; nor had they been aware of its existence until after the claimant’s accident.

Demonstration of the fireman's pole

[34]It is not in dispute that Ms Haines at no time demonstrated the use of the fireman's pole by sliding down it. In her witness statement for these proceedings, Ms Haines said that she never demonstrated the fireman's pole to participants because it was “obvious” how to descend it.[35]In her oral evidence, Ms Haines advanced a slightly different explanation for not demonstrating how to slide down the pole. She said that, during the in-house training she had received, she had been advised that it was unnecessary to demonstrate every element of every obstacle on the Challenge Valley Course. She had been told that to do so would take too long and would result in groups getting cold and bored. She said that in general instructors would give physical demonstrations showing participants how to negotiate only about 20 per cent of the obstacles on the Challenge Valley Course, although they would give clear and explicit oral instructions about the technique to be adopted for each obstacle. She followed that practice. She said that she had not previously experienced any problems as a result of her failure to demonstrate how to use the fireman's pole.

The scouts’ descent of the fireman's pole

[36]Ms Haines’ evidence was that, as each scout arrived on the exit platform, she instructed him/her to sit down on the platform, facing the fireman's pole. She warned each scout that, because it had been raining, the fireman's pole might be wet. The fireman's pole was situated some distance from the edge of the exit platform, requiring participants to reach forward in order to take hold of it. Ms Haines said that she told each scout to grip the fireman's pole tightly with both hands, lean into the pole and wrap his/her legs around it in order to control his/her speed of descent. She said that she had not instructed the scouts to grip with their legs because that was obvious. She said that she gave the claimant the same instructions as she had given to the scouts.[37]The three scouts who gave evidence did not agree with Ms Haines’ account of the instructions she gave to them. Lauren Kavanagh did not remember being warned that the fireman's pole might be wet. She recalled Ms Haines telling her to grab the fireman's pole tightly with both hands but did not remember being told to wrap her legs round the pole. However, she had slid down poles in playgrounds previously and was aware of the need to use her legs to control her speed of descent. She grabbed the pole, leaned out and wrapped her legs round it. She said that the fireman's pole was wet and slippery (more slippery than she had experienced previously when descending poles in playgrounds) and she slid down faster than she had intended. She managed to keep her legs and feet round the fireman's pole but, on landing, her feet slipped out in front of her and she landed quite hard on her bottom. She managed to get up, but she suffered some discomfort for a short time afterwards. She said that she had thought little of it at the time – just that she had come down too quickly.[38]Camellia Kavanagh remembered being told to hold the fireman's pole with both hands. She did not remember being warned that the pole might be wet or given any further instructions. In particular, she did not remember being instructed to lean into the fireman's pole, to wrap her legs round it or to hold on tightly. Like her sister, she had previously slid down poles and knew that she should wrap her legs round the pole. She said that the fireman's pole on the Burma Bridge was higher than the previous poles she had negotiated and she had found it “quite scary”. She had not been aware that there was an alternative means of descent by means of the ladder and thought that, if she had known that, she might have opted to take the alternative route. In the event, she found the fireman's pole wet and slippery and descended quite fast, landing hard on her feet, but without incident.[39]Thomas Bugler did not recall Ms Haines giving him any instructions at all about how to descend the fireman's pole. He did not recall sitting on the exit platform. He believed that he had remained standing and had leaned forward, grabbed the pole with both hands, wrapped his legs around it and slid down. He said that, because the pole was wet and slippery, he had struggled to control his speed but he had landed on his feet. He said that he had noticed that some of the other scouts had slid down fast because of the condition of the pole.[40]In his written statement about the accident made on 10 August 2009, Mr Sprunt said that two female scouts (one of whom he later identified as Lauren Kavanagh) had told him that they had not been given any instructions about how to descend the fireman's pole. One of the scouts (presumably Lauren Kavanagh) had told him that she had found it difficult to control her descent because the pole was wet. She had, he said in his report:
“… landed awkwardly on her feet, then onto her bottom, resulting in mild discomfort to her lower back that evening.”

The claimant’s preparations for descending the fireman's pole

[41]The claimant was one of the last members of the group to negotiate the Burma Bridge. Having stepped from the rope bridge onto the exit platform in the second tree, he sat down on the platform facing the fireman's pole: see photograph 5 at TBB/297 and photograph 7 at TBB/298. From that position, the ladder would not have been visible to him.[42]The claimant’s evidence was that he had not watched any of the scouts descending the fireman's pole. When he arrived on the exit platform, Ms Haines told him to grip the fireman's pole, hug it tight and slide down. He was adamant that she did not tell him to put his legs round the fireman's pole and to hold tight with his legs, as well as with his arms.[43]The claimant said that, when he got onto the exit platform and saw the fireman's pole, he was nervous at the prospect of sliding down it. He had commented to Ms Haines that he was “a fat taxi driver weighing 13½ stone”. In oral evidence, he said that he had asked Ms Haines, “Are you sure?” by which I infer he meant “Are you sure I can manage it?”. Ms Haines said that he would be “fine” and that he should just give the fireman's pole a “big hug”. He said that, at that time, he was unaware of the presence of the ladder and the fact that he could use it as an alternative means of descent. Ms Haines did not offer him the option of doing so. He said that, if the option had been offered to him he would have taken it. The claimant also said that, if he had seen a demonstration of how to descend the fireman's pole, he did not think that he would have attempted it.[44]None of the claimant’s witnesses heard what passed between the claimant and Ms Haines whilst the claimant was on the exit platform. Thomas Bugler recalled the claimant having made a comment about being a “fat taxi driver” but he thought that it had been made at an earlier stage, before the group started to negotiate the Burma Bridge.[45]Ms Haines’ evidence was that the claimant appeared confident and quite capable of descending the fireman's pole. She did not remember him making any comment about being a “fat taxi driver” or expressing any concern about sliding down the fireman's pole. She said that, if he had, she would have instructed him to descend by means of the ladder.

THE ACCIDENT

[46]In his first witness statement, the claimant described his accident in this way:
“… I placed one hand on the pole and moved off the platform to hug the pole, which was indeed very wet and cold and slippery. The next thing I knew was that I had hit the ground on my bottom.”
[47]In oral evidence, the claimant described how he had first placed his left hand on the pole. He thought that he had to push himself off the platform with his right hand. He tried to grip the pole with his right hand but was uncertain whether, at the time he left the platform, he had had both hands on the pole. The next thing he knew was that he “hit the deck” and experienced great pain.[48]At the time of the accident, Mr Bellis was standing near to the “V” shaped tree to the left of the inclined log in photograph 3 at TBB/296. He was taking photographs of the participants negotiating the first two elements of the Burma Bridge. He had his umbrella up to protect himself against the rain that was falling. From his position, he was able to see the fireman's pole.[49]Mr Bellis made a statement about the accident for the Scouts Association just over a week after the accident, on 12 August 2009. In it, he described how the claimant had descended the fireman's pole “at quite a speed” with “his bottom taking most of the impact on landing”. In oral evidence, Mr Bellis said that the claimant had come down the fireman's pole in a sitting position with his hands holding the pole. His descent was quicker than that of the scouts and he had landed on his bottom. He said that the claimant had not removed his hands from the pole as he slid down. Mr Bellis had watched the scouts descend the pole. He said that some may have come down quicker than others and stumbled on landing but he did not remember any of them falling, or appearing to be hurt.[50]In her witness statement Lauren Kavanagh, described the accident:
“[The claimant] held onto the pole with his hands and tried to hook his legs around the pole and then he went down. His feet flew out and he hit the ground on his bottom.”
In oral evidence, Lauren Kavanagh said that the claimant had grabbed the fireman's pole with both hands before leaving the platform and had leaned forward into the pole. He appeared to be trying to hook his legs round the pole, but could not do so in time. His legs went out at an angle and he fell in a sitting position.[51]Camellia Kavanagh’s evidence was that, as the claimant descended the fireman's pole, he was holding it with his hands but his legs were out in front of him as he came down, rather than being wrapped tightly round the pole.[52]In his witness statement, Thomas Bugler described the claimant’s legs being “at 90 degrees to his body”, as he descended very fast and landed on his bottom. In oral evidence, Thomas Bugler said the claimant’s legs were on either side of the pole. He was not able to say whether the claimant had been trying to put his feet round the pole, but he had not been able to control his descent.[53]On the day of the accident, Ms Haines completed an internal accident form in which she described the claimant’s accident:
“Hit the ground too hard going down the pole landing on feet then on backside.”
She described the weather conditions at the time as “wet” and “warm”.[54]Also on the day of the accident, the defendant submitted an accident report to the Health and Safety Executive. The information contained in that accident report came from Ms Haines. The circumstances of the accident were described thus:
“[The claimant] … was instructed (in the same way as all the others) how to sit on the platform, grip the pole with his legs and hold on with his arms and hands – the gripping with hands and legs controls the speed of descent (the distance from feet to ground is about 1.5m). He appeared to travel faster than others and he landed on his feet then on his coxsys (sic) area.”
[55]Three days after the accident, on 7 August 2009, the defendant and Ms Haines compiled a joint note about the circumstances of the accident. That note was later supplemented by additional notes made following further discussions between them which took place in February 2010. A typewritten version of the joint note (including the additional notes) was subsequently prepared, with the additional notes typed in italics: see TBC/452-454. The relevant part of the note (which appeared in the original note made on 7 August 2009) reads:
“All the group… were…given the instructions by [Ms Haines] to descend the pole. She told them all that because it was raining that (sic) the pole may be wet and to hold on tight with both hands and legs. The procedure instructed was to grip with hands really tight, lean into the pole and wrap the legs around to control the speed of descent. [The claimant] was the last but one of the group to cross. [Ms Haines] gave him the same instructions as the others. After he had pulled himself onto the pole he appeared to let go with his hands and his legs were out in front of him. There was no control on the speed of descent. He landed on his feet first and then on his backside. … All the group who were waiting at the bottom of the pole laughed and [the claimant] laughed as well. The other participants watching said that [the claimant] did not hold on when descending.”
[56]In her witness statement for these proceedings, Ms Haines said that:
“Despite having initially grabbed hold of the pole, the claimant let go of it on his way down for no obvious reason. His legs were sticking out at right angles, parallel with the ground, as he descended and I saw him land on his backside.” and “I remember one of the female scouts shouting out “Bob, let go of the pole”.”
Ms Haines went on to say:
“The accident happened because the claimant let go of the pole for no good reason. I believe he was showing off to the group of scouts in his charge.”
[57]At the trial, Ms Haines was asked about the fact that the accident report form submitted on the day of the accident had not mentioned that the claimant had let go of the pole. Ms Haines said that what was contained in the accident report form was a short account only. She was adamant that she remembered vividly the claimant removing his hands from the pole. In oral evidence, she said that he took hold of the pole with both hands, leaned into it and wrapped his legs around it. He went down slightly, then his hands “came away” and his feet “went out”. She said that he landed on his feet, then “really hard on his backside”.[58]None of the other witnesses to the accident saw the claimant let go of the pole or heard anyone encourage him to do so.[59]The defendant’s evidence was that the accident report form had been completed after a short discussion between Ms Haines and himself. At a later date, they had discussed the matter again and Ms Haines had then told him that the claimant had let go of the pole.

AFTER THE ACCIDENT

[60]Ms Haines’ recollection was that the claimant had been the last to negotiate the obstacle and that she had descended the pole immediately after him. In fact, it seems clear from the evidence that there were two or three other scouts still to come, and that Ms Haines must have stayed on the exit platform until they had descended the pole. In the meantime, the claimant had rolled away from the pole, allowing the remaining scouts to slide down without incident.[61]Ms Haines said that, when she slid down the fireman's pole, the pole was dry and not slippery and she had had no problem controlling her descent. She did not consider that the pole would have been wet when the claimant slid down it. She acknowledged that the pole may have been “damp” when the first of the scouts had negotiated it but she said that, after that, it would have been “dried off” by the hands and clothes of the scouts descending it.[62]The claimant was in great pain and was unable to get up. It rapidly became clear that he had suffered a significant injury. An air ambulance was summoned and transferred him to hospital. Meanwhile, the group of scouts had continued to the remaining obstacles on the Challenge Valley Course under Ms Haines’ supervision. THE ISSUE OF IMPACT ATTENTUATION The experts

THE ISSUE OF IMPACT ATTENTUATION

[63]Both parties were given permission to rely on a Report from an expert in safety and accident analysis in the fields of sport and leisure. The experts’ Reports were to deal with the issue of impact attenuation. Mr Andrew Petherick was instructed on behalf of the claimant, whilst the defendant instructed Mr William Mackay. The two experts conducted a joint inspection of the accident site on 16 March 2012, after which they each prepared a Report. Subsequently, they met to discuss the issues in the case, after which they provided a Joint Statement. Both experts gave oral evidence.

Impact attenuation

[64]Impact attenuating materials are designed to reduce the risk of injury arising as a result of impact. For example, materials such as woodchip and bark are commonly used in playgrounds in order to guard against the risk that a child falling off a piece of play equipment will suffer injury. Measurement of the impact attenuating properties of specific types and depths of surfacing materials can be carried out to ascertain the materials’ shock absorbing qualities. Measurement of impact attenuation is generally done under laboratory conditions. It can in certain circumstances be performed on site using portable equipment but the evidence was that such equipment is not in general use in the UK.[65]Various British and European Standards (BS EN) provide guidance on the type and depth of materials which have been found to provide adequate levels of impact attenuation for surfaces in areas used for play and other activities. In areas where there is a risk that an individual might fall from play or other types of equipment, the depth of surfacing material required beneath the equipment in order to provide adequate impact attenuation will vary according to the potential height of fall.

Standards for impact attenuation in playgrounds

[66]At the time the Challenge Valley Course was constructed, the relevant Standards for play equipment were contained in BS 5696, entitled “Play equipment intended for permanent installation outdoors”, which came into force in 1976. In 1997, the provisions of BS 5696 that related to impact attenuation were replaced by BS EN 1177, “Impact absorbing playground surfacing”. I was not referred to the text of BS 5696 or BS EN 1177. However, in their Joint Statement, the experts agreed that the guidance contained in both documents was to the effect that a minimum depth of 300mm of loose particulate surfacing material (i.e. bark and/or woodchip) was required for impact attenuation in a playground.[67]In 1998, BS EN 1176:1998, which specified new Standards for the surfacing of playgrounds, was published. The experts agreed that the guidance on the minimum depths of loose particulate impact attenuating surfacing material contained in BS EN 1176:1998 was similar to that which had previously appeared in BS 5696 and BS EN 1177.[68]In 2008, BS EN 1176:1998 was replaced by BS EN 1176:2008 entitled, “Playground equipment and surfacing”. Part 1 of BS EN 1176: 2008 covered general safety requirements and test methods. Section 4.2.8.5 of Part 1 refers to “Protection against injuries from the surface of the impact area”. Paragraph 4.2.8.5.1 includes the following:
“If loose particulate material is used it shall be installed to a layer thickness of 100mm more than that determined by testing … to achieve the required critical fall height. NOTE: This is to allow for displacement through use.”
The “critical fall height” is the height from which it is assessed that a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury. NOTE: This is to allow for displacement through use.”[69]Paragraph 4.2.8.5.2 refers to, inter alia, equipment with a free height of fall greater than 600mm. It requires that, beneath all playground equipment with a free fall height of more than 600mm, there should be impact attenuation surfacing over the entire impact area. It refers to a Table (Table 4) which sets out the minimum depths of commonly used impact attenuation materials with corresponding critical fall heights. Paragraph 4.2.8.5.2 provides that:
“Examples for commonly used impact attenuating materials are given in Table 4 with the related critical fall heights, tested in accordance with EN 1177 and measured partly on site and partly in the laboratory with different test conditions. For material specifications and thicknesses not covered by Table 4, EN 1177 shall be used as the method of test for the determination of the critical fall height.”
Note 4 to paragraph 4.2.8.5.2 states that impact attenuating materials should be adequately maintained and warns that failure to maintain such surfaces will result in the impact attenuation being significantly reduced.[70]The relevant parts of Table 4 are set out below: Materiala Description Minimum Depthb Critical fall height mm mm mm Turf/topsoil ≤ 1 000 Bark 20-80 grain size 200 ≤ 2 000 300 ≤ 3 000 Woodchip 5 to 30 grain size 200 ≤ 2 000 300 ≤ 3 000 aMaterial properly prepared for use in children’s playgrounds bFor loose particulate material, add 100 mm to the minimum depth to compensate for displacement (see 4.2.8.5.1) Table 4 shows for example that, where there is appropriately sized and adequately maintained bark or woodchip surfacing material to a depth of 300mm, that is considered adequate to reduce the risk of serious head injury to a child falling from 3 metres. An additional 100mm should be provided to allow for displacement.[71]Paragraph 4.2.8 of BS EN 1176:2008 deals with “Protection against injuries during movement and falling”. Paragraph 4.2.8.1 states that the free height of fall shall not exceed 3 metres and is to be determined in accordance with Table 2, which provides as follows: 72. Table 2 – Free height of fall for different types of use Type of use Vertical distance Standing from foot support to surface below Sitting from seat to surface below Hanging (When full body support is provided by the hands only and the whole body can be lifted up to the hand support) from hand support height to surface below Climbing* (When body support is a combination of feet/legs and hands, e.g. climbing ropes or sliding poles maximum foot support: 3 m to the surface below maximum hand support: 4 m to surface below (Free height of fall measured from a maximum hand support minus 1 m to the surface below) *Such equipment constructed for use as ‘Climbing’ shall not allow access to positions with a free height of fall of more than 3m. The “free height of fall” is the distance between any accessible part of equipment intended for play and the surface underneath. Paragraph 4.2.8.5.2 of BS EN 1176:2008 provides that the critical fall height of the surfacing shall be equal to, or greater than, the free height of fall.[72]In their Joint Statement, the experts agreed that, in order to meet the requirements of BS EN 1176:2008 and its predecessors, BS EN 5696, BS EN 1177 and BS EN 1176:1998, an impact attention area comprised of woodchip and bark should have a depth of 300mm at the least and ideally an additional depth (in order to allow some displacement of material through use) of 100mm, making a depth of 400mm in all. They agreed that the impact absorbent layer should be lined with terram (a layer of polythene) and should contain no hard objects such as tree roots. They agreed that regular raking and digging of the impact attenuation area would be necessary in order to maintain the woodchip and bark free of compaction. However, there was a dispute between the experts as to whether or not the Standards relating to playgrounds and/or play equipment were applicable to the Challenge Valley Course.

Standards for ropes courses

[73]In 2007, BS EN 15567, entitled “Sports and recreational facilities – Rope Courses”, introduced new Standards for facilities which came within the definition of “ropes courses”. It is agreed by the parties that parts of the Challenge Valley Course, including the Burma Bridge, fall within that definition.[74]The Introduction to BS EN 15567 states:
“Ropes courses vary considerably and may be used for education, recreational, training or therapeutic purposes. Ropes course activities involve risks that should be managed by the operators. This is achieved through careful supervision, training, instruction, information etc. Ropes course activities should only be taken by those who are physically and mentally able to comply with the safety requirements specified by the operator. The various safety devices (for protection against falling from a height and collisions) consist of equipment designed to limit the consequences of falls or collisions. There are inherent risks associated with ropes courses. These risks should, however, be appropriately managed and minimised by the ropes course operator and his staff; it should be understood that they can not be eliminated altogether. On the basis of a risk assessment, operators should take reasonably practicable measures to ensure the safety of participants. This means that the degree of risks in a particular job/work place/facility need to be balanced against the time, trouble, cost, benefits and physical difficulty of taking measures to avoid or reduce risk. ”
[75]Part 1 of BS EN 15567 relates to the construction of and safety requirements for ropes courses. Paragraph 4.3.4.3 of Part 1 of BS EN 15567 refers specifically to fireman's poles. It states:
“In the case of a pole with a maximum fall height of less than three metres, the radius of the landing area shall be at least equal to 2/3 the height plus 50 cm. In the case of a pole with a maximum fall height of more than three metres, a braking device shall be installed to reduce or limit the rate of descent.”
The “maximum fall height” is the same as the “free height of fall”.[76]BS EN 15567 contains no specific provisions dealing with impact attenuation. Paragraph 4.3.5 is entitled “Safety system”. Paragraph 4.3.5.2 provides:
“When participants’ feet are more than 1.0m from the ground, a safety system shall be in place.”
Paragraph 4.3.5.1 states that “safety systems” can include “impact absorbent floors appropriate to the potential fall height”.[77]Part 2 of BS EN 15567 sets out the operation requirements for ropes courses. Paragraph 10 contains the requirements for the inspection of rope courses. They include a routine visual check (to include inspection of ground surface finishes) by a competent individual before each opening, an operation inspection every 1-3 months and a periodical inspection at least once a year by an approved inspection body with experience and knowledge on ropes courses and trees and woods. Inspections of the accident site Immediately after the accident

Inspections of the accident site

[78]Photographs 3-8 at TBB/296-298, were taken by Mr Bellis on 5 August 2009, the day after the claimant’s accident. Photograph 8 (also at TBD/723) shows the ground around the fireman's pole. There is an area of brown material surrounded by rough grass, with what appears to be a circular shaped indentation immediately around the pole. Mr Bellis described the area as “all mucky” with a compressed area around the pole that had been created by the feet of people descending the pole. Mr Kavanagh, who inspected the area on the day of the accident, stated in his witness statement that there was “little if any cushioning material” around the pole. He said that he could see some woodchip but it was “very thin on the ground”. His evidence was that he could see the rim of the base of the pole which appeared to him to be circular and made of concrete. Mr Kavanagh confirmed that the state of the landing area on the day of the accident was as shown on photograph 8 at TBB/298.[79]Photograph 9 at TBB/299 and TBD/723 was taken two days later, on 7 August 2009. Mr Bellis’s evidence was that it had appeared to him that, by 7 August 2009, a layer of woodchip about 2-3 inches (51-76mm) deep had been spread over the landing area. Mr Kavanagh also saw the area on 7 August 2009 and confirmed that, by that time, there was a thin layer of woodchips covering the area.[80]In his report for the Scouts Association made on 10 August 2009, Mr Sprunt stated:
“Friday 7 August whilst assisting [Mr Bellis] take photographs of the second challenge apparatus we noted that a thin layer of wood chip bark had been placed at the foot of the metal pole. I am doubtful whether this would provide adequate impact absorbing performance to prevent injury in the event of an uncontrolled or incorrectly executed descent.”
[81]The defendant’s evidence was that, about 15 years previously, there had been an incident when an individual descending the fireman's pole had landed awkwardly, injuring his/her ankle. After that incident, a level landing area had been provided around the pole, with a woodchip surface between 200 and 300mm deep. He said that the surface of the landing area was raked regularly to keep it level. The area was bounded by timber shutters set vertically into the ground. One of those shutters can be seen in photograph 8 at TBB/298.[82]The defendant did not believe that any additional woodchips had been put down on the landing area between the day of the accident and 7 August 2009. That would have required action by the maintenance team under his direction. He considered that the difference in the appearance of the landing area as between photographs 8 and 9 was probably due to one of the instructors having kicked up the surface of the area, causing woodchips from another part of the landing area to be redistributed around the base of the pole.

In June 2010

[83]The defendant dug up part of the area around the fireman's pole in June 2010. The circumstances were that Mr Alan Preston, of Alan J Preston Associates, was initially instructed to act as an expert on the defendant’s behalf. Mr Preston informed the defendant that it was being alleged that the fireman's pole had a concrete base, the rim of which had been visible on the day of the accident. He asked the defendant to scrape away the woodchips from the surface of the landing area and to photograph what lay beneath.[84]The defendant did this and took two photographs which he sent to Mr Preston in September 2010. Those photographs (which are not of good quality) are at TBB/401. They show an area of excavation around the fireman's pole. No concrete is visible in the excavated area.

In September 2011

[85]On 23 September 2011, the defendant carried out further work at the landing area, this time in the company of Mr Tim Martin, of Alan Preston Associates. Again, he did this at the request of Mr Preston in order to investigate the allegation that there was a circular concrete base at the foot of the concrete pole.[86]The defendant’s evidence was that the September 2011 excavation of the landing area revealed that the layer of woodchip around the fireman's pole extended to a depth of about 250mm. Beneath that layer were earth and some roots. No concrete base was discovered during the excavation. After the excavation, the woodchips were replaced in the hole that had been dug.[87]It is most unfortunate that neither the defendant nor the expert then instructed on his behalf sought the approval of the solicitor representing him before carrying out excavations at the accident site. Had the defendant’s solicitor been informed, he/she would have no doubt advised that the claimant should be given an opportunity to be represented when the excavations were carried out. As it is, the claimant’s expert was given no opportunity to observe what was done. In addition, the fact that the landing area had been excavated on two previous occasions made the findings at the joint inspection more difficult to assess. I accept that the defendant merely complied with the requests made by his expert and was not deliberately seeking to obtain an unfair advantage by his actions. Nevertheless, the defendant and Mr Preston (and possibly Mr Martin also) should have realised that it was not appropriate to take such a step without first seeking the approval of the defendant’s solicitor.

At the joint inspection in March 2012

[88]The experts carried out their joint inspection of the accident site on 16 March 2012. The siting and method of fixing of the fireman's pole remained the same as at the time of the accident.[89]The fireman's pole consisted of a scaffolding pole 5 cm (almost 2 inches) in diameter and 3.75 metres at its highest point. The exit platform was 3.10 metres above the ground. The experts agreed that, at the time of their inspection, when the pole was dry, it afforded good grip retention qualities. They further agreed that, “when wet and to a certain extent covered with mud there is (sic) likely to be increased problems relating to control of descent.”[90]The experts agreed that the diagram of the landing area in Mr Petherick’s Report (TBD/720) was accurate. They noted the minimum dimensions of the landing area for a fireman’s pole required by BS EN 15567. The experts agreed that those requirements had not been met. If the maximum fall height from the fireman's pole was (for example) 2 metres, the radius of the landing area should have been at least 1.38 metres. The distance from the pole to the nearest edge of the tree where the exit platform was situated was only just over half that at 0.77 metres.[91]The experts agreed that the surface of the landing area consisted of a mixture of wood bark, coarse woodchip, silt and soil. They excavated three small trial pits at various points in the landing area, which revealed that the mixture ended at a depth of approximately 150mm. Below that level, only soil was found. Within the mixture, at a level of between 100 and 150mm and visible in each of the three trial pits, were substantial roots from the tree in which the exit platform was sited.[92]The experts noted that the landing area was situated at the base of steeply sloping ground with a stream flowing on the lower side. As a result the higher land drained down into – and through – the landing area to the stream. The experts agreed that impact attenuation areas comprised of such materials as bark or woodchip should not be sited in a position where the adjacent surfaces were likely to drain into the landing area. They noted that there was no terram lining to prevent impregnation of the landing area by soil or water.[93]During the inspection, Mr Mackay slid down the fireman's pole several times. The fireman's pole was dry and DVD footage of his descents showed that he was able to slide down in a controlled manner and land without difficulty.[94]The experts agreed that the photograph of the landing area taken on the day of the claimant’s accident (photograph 8 on TBB/298) appeared to show heavy compaction around the immediate vicinity of the bottom of the pole, in the area where persons descending the pole were likely to land. THE EXPERT EVIDENCE The application of the Standards governing playgrounds and play equipment

THE EXPERT EVIDENCE

[95]Mr Petherick considered that the Challenge Valley Course falls within the type of play equipment covered by BS 5696; BS EN 1177; BS EN 1176:1998 and BS EN 1176:2008.[96]Mr Mackay disagreed, contending that the “play equipment” to which those Standards apply is equipment designed for the use of young and unsupervised children and is wholly different in character from equipment such as the Challenge Valley Course which is intended for use only under instruction and supervision. Neither of the experts produced a definition of the terms “playground” or “play equipment”; they merely asserted that their own view was correct.

The application of the Standards governing rope course

[97]I have already indicated that the parties were agreed that the Burma Bridge falls within the definition of a “ropes course” for the purposes of BS EN 15567. However, the defendant’s case was that the requirements of BS EN 15567 did not apply to the Challenge Valley Course because the Course was constructed many years before BS EN 15567 came into force. In their Joint Statement, the experts agreed that, whilst the relevant Standards are not retrospective in operation:
“… good practice requires redevelopment in accordance with a new standard to be implemented wherever reasonable (sic) practicable at the earliest opportunity.”
Mr Mackay’s evidence was that, in agreeing to that statement, he had intended to indicate that the defendant was not obliged to comply with BS EN 15567 unless and until he undertook any “redevelopment” in the sense of new construction.[98]Mr Petherick took a different view. He pointed out that the BAHA Code of Practice provides (at Section 4) that, where applicable, equipment must meet the appropriate British Standard or other relevant nationally accepted Safety Standards. Appendix 7 of the Code of Practice, which covers “Off ground activities” states that, with regard to inter alia construction, the operator must be able to demonstrate that the course meets current standards. Mr Petherick’s opinion was that, pursuant to the BAHA Code of Practice, the defendant should have taken steps, during the period of two years or so for which BS EN 15567 had been in force, to ensure that the Challenge Valley Course complied with that Standard.

Measurement of the free height of fall

[99]The way in which the free height of fall (also known as the maximum height of fall) is measured is relevant to the requirements of the Standards relating to both playgrounds and play equipment and ropes courses.[100]Table 2 of BS EN 1176:2008 sets out how the free height of fall should be measured in the case of a person who is sitting on a piece of equipment, hanging on a piece of equipment or climbing on a piece of equipment. Applying the principles set out in Table 2 to the circumstances of this case, the free height of fall for a person sitting on the exit platform would have been the distance from the platform to the ground below, i.e. 3.1 metres. If a person transferring from the exit platform to the fireman's pole were to be regarded as “hanging” from the pole, his/her free height of fall would be the distance from his/her hands to the ground, i.e. more than the free height of fall as measured from the exit platform. If the act of sliding down the fireman's pole were regarded as “climbing” within the meaning of Table 2, the free height of fall for a person sliding down the fireman's pole would have been the distance from the person’s maximum hand support to the surface below minus one metre, i.e. rather less than the free height of fall as measured from the exit platform.[101]The experts’ views as to how the free height of fall should be measured in this case differed. Mr Petherick’s view was that the appropriate measure was from a participant’s hanging position on the fireman's pole. He suggested that the free height of fall should be measured from the point where a participant would grasp the pole with his/her hands before leaving the exit platform. That would have catered for the ‘worst case scenario’, namely the possibility that a participant might slide down the pole in a sitting position from the height of the platform whilst hanging from the pole by his hands without his/her feet and legs wrapped around the pole. In that event, he said, the participants’ hands were likely to be at a level significantly above the exit platform, possibly as high as the very top of the fireman's pole, which was 3.75 metres above the ground. Alternatively, he said that the free height of fall should be measured from a participant’s sitting position on the exit platform. In either case, the free height of fall would be more than 3 metres.[102]This would have two consequences. First, by paragraph 4.3.4.3 of BS EN 15567, the defendant would have been required to provide a braking device (e.g. an inertia reel) for participants using the fireman's pole and he did not. The defendant would therefore be in breach of that requirement. Second, BS EN 1176:2008 specifies that, for a free height of fall of three metres, a depth of 300mm of woodchip or bark provides appropriate protection against serious head injury to a child. Since, even on the defendant’s own evidence, it is unlikely that the depth of woodchip on the landing area at the time of the claimant’s accident was more than 250mm, the defendant would have been in breach of that requirement also.[103]Mr Petherick did not accept that it was appropriate to calculate the free height of fall on the basis that participants on the Burma Bridge would be “climbing” down the fireman’s pole. He considered that the use of the term “climbing” implied a greater degree of friction between a participant’s body and the pole than would be the case here, where participants were expected to slide down the pole.[104]Mr Petherick acknowledged that, if I found that the free height of fall was less than three metres, there would have been no requirement for the provision of a braking device. However, he did not consider that the requirement for adequate impact attenuation would be significantly affected. He pointed out that, according to Table 4 of BS EN 1176:2008 a total depth of woodchip/bark of 300mm (200mm + 100mm) is identified as appropriate for a critical fall height of only two metres. Even assuming that the conditions on the day of the accident were the same as those reported to have been present at the time of the defendant’s excavation in April 2011 (i.e. a depth of 250mm of woodchip), the requirement of BS EN 1176:2008 would not have been met.[105]In his Report, Mr Mackay expressed the view that, although the exit platform for the Burma Bridge was just over three metres above the ground, the fact that a participant would sit on it with his feet dangling below that height meant that the free height of fall was less than three metres. Similarly, while he acknowledged that a participant’s hands would be at a height of more than three metres above the ground at the time he/she launched him/herself onto the pole, he contended that the position of the participant’s legs would mean that the free height of fall was significant less. Having regard to the contents of Table 2 of BS EN 1176:2008, it is clear that Mr Mackay’s understanding of the way in which the free height of fall is measured was wrong. Given the nature of his claimed expertise, this was a surprising error.[106]In his oral evidence, Mr Mackay suggested that the most appropriate way in which to measure the free height of fall in the circumstances of this case was by reference to a person climbing down the fireman's pole. He took the view that the presence of the pole made it unrealistic to measure the free height of fall by reference to the height of the exit platform. As to the point from which the free height of fall should be measured, Mr Mackay did not agree that a participant preparing to slide down the fireman's pole would grasp it at or near the very top. He suggested that the natural position would be for a participant to take hold of the pole at about the height of his/her nose as he/she sat on the exit platform. Mr Mackay therefore considered that the free height of fall from the fireman's pole was less than three metres. The effect of that was that there was no requirement for a braking device.[107]Since Mr Mackay did not accept that the defendant was required to comply with any of the BS EN Standards to which I was referred, he did not consider that there was any question of a breach of those requirements. When asked about the absence of any impact attenuating material below a depth of 150mm at the time of the joint inspection, Mr Mackay said that, although that had been the case at the joint inspection, there was no way of knowing what conditions had been like on the day of the claimant’s accident. Between that date and the joint inspection, the landing area had been disturbed by the two previous excavations, as well as the day to day work needed to keep it in a good condition. He said that in any event, without carrying out specific tests, it would be impossible accurately to assess the impact attenuating properties of the surfacing material and whether, at the time of the joint inspection, the impact attenuation was adequate.[108]Mr Mackay said that his focus at the joint inspection had been to form a subjective view of the impact attenuation in the area around the fireman's pole. On the basis of his descents down the pole, he considered that – on the day of the joint inspection – the surface of the landing area provided an adequate landing for persons sliding down the pole. He said that the generally ‘spongy’ nature of the ground in the landing area, coupled with the mixture of wood bark, coarse woodchips, silt and soil (a mixture which he termed ‘mulch’) that formed the top layer of the area, combined to produce adequate shock absorbent qualities. He acknowledged that he could describe only the conditions as he found them on the day of his inspection and that they might have been different on the day of the claimant’s accident.[109]Mr Petherick took a different view. His subjective assessment at the joint assessment had been that the landing area had no ‘give’. That had corresponded with the results of inspecting the trial pits. He pointed out that, at 150mm, the depth of the layer of impact attenuating material found by the experts at the joint inspection was inadequate even for a critical fall height of only two metres. Mr Petherick said that, since the joint inspection took place at the beginning of the day, he would have expected there to be an additional 100mm of impact attenuating material to take account of the displacement of material that would inevitably occur whilst the pole was in use. The presence of soil and silt within the impact attenuating material would have had the effect of causing compaction and preventing free draining, whilst the presence of hard objects such as tree roots within the material would have greatly reduced its efficiency. By contrast, Mr Mackay did not believe that the presence of tree roots within the layer of what he called “mulch” would have significantly affected the impact attenuation qualities of the landing surface. DISCUSSION AND CONCLUSIONS Findings of fact in relation to the circumstances of the accident The witnesses

DISCUSSION AND CONCLUSIONS

[110]The claimant impressed me as a thoroughly genuine and honest individual who was doing his best to give an accurate account of events as he remembered them. That is not to say that I accepted his evidence in its entirety. I am satisfied that, in respect of one or two matters, his memory was at fault and that, in relation to one issue at least, he was viewing events with the benefit of hindsight. Nevertheless, overall I regarded him as a reliable and truthful witness.[111]Mr Sprunt was also a particularly impressive witness. Although not officially involved in the Scout movement and not a close friend of the claimant, he provided a written statement for the Scouts Association about the incident he had observed a short time after it occurred. That statement contained a full account of events. Both the contents of the statement and his oral evidence were clear and measured and, I find, reliable.[112]I also considered Mr Kavanagh and Mr Bellis to be honest witnesses who were doing their best to assist the court. Mr Bellis was clearly mistaken in suggesting (in his witness statement) that the ladder had been out of his own view and (in the captions to his photographs, probably written by him) that it had not been visible to the claimant before the accident. Mr Kavanagh was mistaken in his belief that he had seen the rim of a concrete base of the fireman’s pole. However, I did not consider that either man was attempting consciously to misrepresent what he had seen and I regarded other parts of their evidence as credible and reliable.[113]The three young people who gave evidence were each impressive in their own way although their recollections of the events on the day of the claimant’s accident were, perhaps not surprisingly, of varying quality. Lauren Kavanagh’s recollection was good and I found her evidence about her own experience of descending the fireman's pole particularly compelling. Camellia Kavanagh obviously found the experience of giving evidence somewhat overwhelming and there were gaps in her recollection of events. Thomas Bugler remembered little of what he had been told by Ms Haines. He was, I am satisfied, wrong in believing that he had mounted the fireman's pole from a standing position. However, I am confident that both he and Camellia Kavanagh had a reasonably good recollection of the circumstances of the accident itself.[114]I did not find Ms Haines an impressive witness. In particular, I reject her suggestion that the claimant’s accident occurred because he released his handhold on the pole. Having seen the claimant give evidence, I regard Ms Haines’ assertion that he let go of the pole deliberately with the intention of showing off to the group of scouts for whom he was responsible as entirely fanciful. I note that she did not make that allegation to the defendant when she first spoke to him about the circumstances of the accident. If she had really believed that the claimant was the author of his own misfortune, I would have expected her to tell her employer that immediately. In the event, the allegation appeared for the first time in the joint note prepared by the two of them following a discussion on 7 August 2009. I find that, by that time, Ms Haines was aware that the claimant had a significant injury and was anxious to absolve herself from blame for the accident. She therefore gave an account of how the claimant had brought the accident upon himself. It is not to her credit that she persisted in her allegation at trial. The fact that Ms Haines made this unwarranted allegation raised question marks about the general reliability of her evidence.[115]The defendant was not present at the time of the accident and gave evidence about general matters only. He appeared a straightforward individual although I am satisfied that his recollection of the detail of the excavation he carried out in September 2011 was not accurate for reasons I shall refer to later in this judgment.

The accident

[116]I am satisfied from the evidence that, at the time of the accident, it was still drizzling with rain and that the ground and surfaces of the obstacles on the Challenge Valley Course would have been wet and slippery. I find that the continuing rain (which caused Mr Sprunt to hold an umbrella over the claimant as he lay injured on the ground) and the fact that there would have been water dripping from the tree and on the participants’ hands, make it inevitable that the fireman’s pole would have been wet and therefore more slippery than usual. The fact that it was slippery was confirmed by the evidence of the three scouts who slid down it, especially Lauren Kavanagh. I do not accept Ms Haines’ evidence that the fireman's pole was dry when she slid down it after the accident. I doubt whether she would have noticed its state since she is likely to have been preoccupied at the time with the claimant’s condition and with issues such as whether the group should continue with the remainder of the Challenge Valley Course. I have no doubt that she remembers that she negotiated the pole without difficulty but I regard it as very unlikely that she can remember any more than that.[117]I accept Ms Haines’ evidence that she warned the group twice about the generally wet and slippery conditions on the Challenge Valley Course. Although the other witnesses did not remember the second warning, given whilst Ms Haines was demonstrating how to negotiate the rope bridge, Mr Sprunt recalled hearing it and I consider it likely that both he and Ms Haines were right about that. I do not accept that Ms Haines gave another, more specific, warning to each participant as he/she was preparing to descend the fireman's pole to the effect that the pole might be wet. If she had given such a warning it would have been contrary to her belief, stated in evidence, that, whilst the fireman’s pole might have been “damp” when the first few scouts descended from the Burma Bridge, it would have dried up within a short time. None of the witnesses remembered that she had given an additional warning at that stage.[118]I accept the claimant’s evidence that he had little recollection of his previous visits to the Clyne Farm Centre, the most recent of which was eight years before his accident. No doubt he has visited many similar centres with groups of scouts and it is not surprising that he has no detailed recollection of each of them. I accept also that he had not previously used the fireman's pole on the Burma Bridge obstacle. Given the dates of his previous visits to the Clyne Farm Centre, it is quite possible that, when he had previously been on the Challenge Valley Course, he had chosen to descend from the Burma Bridge by means of the rope which would have been there at the time. I accept also the claimant’s evidence that he had never previously slid down a fireman’s pole.[119]Despite the evidence of the claimant and the scouts who gave evidence that they were unaware of the existence of the ladder before the accident occurred, there can be no doubt that the ladder was there to be seen. That is evident from the photographs. Mr Sprunt had certainly noticed it from his position. Mr Bellis at one time believed that he had not been aware of the ladder’s existence until after the claimant’s accident. He must have been wrong about that since it would have been clearly visible from where he was standing to take photographs and, indeed, it can be seen on those photographs.[120]I consider that the explanation for this apparent anomaly is that none of the participants took any notice of the ladder because it would have seemed to them to be irrelevant to their activities. The scouts were excited at the prospect of negotiating all three elements of the Burma Bridge, including the fireman's pole. They had not come on the Challenge Valley Course with the intention of climbing down a ladder in preference to a more unusual and exciting mode of descent. I consider it probable that, like the other members of the party, Mr Bellis was concentrating on the elements of the Burma Bridge being negotiating by members of the scout group and had not consciously noticed the presence of a ladder.[121]As for the claimant, I accept his evidence that, as he waited to negotiate the first two elements of the Burma Bridge, he was not focussing on the problem of how he was going to descend from the second tree. He was fully occupied with supervising the scouts under his charge as they waited for their turns, with watching them as they negotiated the first two elements of the obstacle and with preparing himself to do the same when his turn came.[122]I find that, once the claimant had reached the platform in the first tree, he was intent on watching the scouts immediately in front of him crossing the rope bridge. Whilst crossing the bridge himself, his attention would have been focussed on maintaining his footing (see photo 2 at TBB/295). As he got near to the second tree, he would have been concentrating on Ms Haines (who was sitting on a bough of the tree with her feet on the exit platform in the approximate position shown on photograph 3 at TBB/392) and on stepping safely onto the exit platform. I do not find it surprising that, despite his proximity to the ladder, he did not notice it at that stage.[123]Whilst it is possible that Ms Haines told the claimant and the scouts about the alternative means of descent before they began to negotiate the Burma Bridge, I regard it as very unlikely. First of all, if she had done so, I consider it probable that the claimant would have remembered. Second, although Mr Sprunt was not participating in the activity, he was standing nearby and he did not recall Ms Haines mentioning the ladder, although he was aware of its presence. In addition, I find it difficult to see why Ms Haines would have mentioned the ladder at that stage. When asked that question in cross-examination, she was unable to provide an answer.[124]It is, I consider, significant that the Training Notes issued by the defendant to his instructors required them to offer the choice of descent at the time when the participant reached the exit platform in the second tree. That was a logical point at which to make the offer. By then, the participant would be able to see the fireman's pole and would be in a position to assess the difficulty of descending it. Meanwhile, the instructor would have had the opportunity to assess how the participant had coped with the first two elements of the obstacle and to take a decision as to whether he/she would be able to manage the third element. For those reasons, I am satisfied that Ms Haines is mistaken in saying that she offered the alternative means of descent before the group started to negotiate the rope bridge. I accept the evidence of the claimant and his witnesses that they were never at any stage told that it was open to them to descend from the second tree by means of the ladder.[125]I find that, when each participant arrived on the exit platform, Ms Haines gave minimal instructions about how to slide down the fireman's pole. In her witness statement, she explained that she had not demonstrated the descent of the fireman's pole because it was “obvious” how to descend it. If that was her view, I can see no reason why she should have given a full explanation of how to negotiate the pole. I accept the evidence of the claimant and the other witnesses who told me that Ms Haines’ instructions were confined to telling them to grab the pole tightly with both hands and/or to “hug” it. I find that she did not specifically tell them to wrap their legs around the pole, nor explain to them the importance of doing so, i.e. that it would enable them to control their speed of descent.[126]As Ms Haines had foreseen, all the scouts in the group knew that they must wrap their legs round the pole and did so. I find that, even so, some of them slid down faster than they had expected or wanted to do. I am satisfied that they did so because of the wet conditions which made the pole more slippery than usual. In particular, I accept Lauren Kavanagh’s account of how she slid down faster than she had intended, slipped on landing and fell on her bottom. I have no doubt that she was telling the truth about the incident, a view which is supported by the fact that Mr Sprunt recorded the complaint she had made in his statement of 10 August 2009 and her father also confirmed that she had mentioned the incident to him. I note that Mr Bellis appears to have been unaware of the incident but, if Lauren Kavanagh made no complaint immediately after her fall (and it is not suggested that she did), he may well not have remembered the fact that she had slipped and fallen on landing.[127]The act of moving from the exit platform to the pole would have been potentially the most difficult part of negotiating the fireman's pole. I find that the claimant’s accident probably happened because he failed to appreciate the importance of wrapping his legs firmly round the fireman's pole immediately on launching himself from the platform onto the pole. I find that, at that point, he was concentrating solely on grasping the pole with his hands and hugging it because that is what he had been told to do. Once he had launched himself onto the pole, he slid down with considerable speed, probably as a result of the fact that the pole was more slippery than it would usually have been. I consider it unlikely that, as he slid down the pole, he was making any conscious effort to get his legs round the pole. Whether or not he was doing so, however, it was by then too late and his legs went out in front of him more or less immediately, causing him to slide down and land in a sitting position. I do not accept Ms Haines’ evidence that he landed on his feet in the first instance, which is in conflict with the evidence of every other person who saw the accident.[128]I accept the claimant’s evidence that he felt somewhat nervous when he saw the fireman's pole. That is not surprising given that, as I have found, he had not previously negotiated such an obstacle. However, I consider that he is probably mistaken in believing that he made the remark about being a “fat taxi driver” whilst he was on the exit platform. I accept that the remark was made but it seems to me more likely that, as Thomas Bugler suggested, it was made at an earlier stage in the Challenge Valley Course, probably when the group was preparing to negotiate the first obstacle. The remark was no doubt made humorously but reflected the fact that the claimant did not regard himself as particularly fit or athletic.[129]I regard it as unlikely, however, that, whilst on the exit platform, the claimant said or did anything that would have led Ms Haines to believe that he was particularly concerned about the prospect of sliding down the fireman's pole. Whilst I accept that the claimant now believes that, if he had been aware of the optional means of descent via the ladder, he would have taken it, I consider that his belief is based on hindsight. It is very natural that, having sustained his injury, he should have come to think that, had he been given the choice, he would have acted differently. I regard it as more likely that, knowing that most of the scouts had slid down the pole apparently without difficulty, he would have decided to follow them despite any misgivings he might have had. Breach of duty by Ms Haines The claimant’s case

Breach of duty by Ms Haines

[130]The claimant’s case is that Ms Haines failed to demonstrate, or properly to instruct the claimant in, the correct technique to be adopted when descending the fireman’s pole, contrary to the provisions of the defendant’s risk assessment and/or instructor Training Notes. It is also alleged that Ms Haines failed to ensure that the claimant had a good grip on the pole before attempting to slide down and failed to hold and stabilise the claimant as he moved from the exit platform to the pole, that she failed to warn the claimant that the fireman’s pole was wet and that she failed to offer the claimant the option of using the ladder – rather than the fireman’s pole – to descend.[131]Mr Geoffrey Weddell, for the claimant, submitted that the risk assessment made clear that it was necessary, in order to avoid the risk of slipping on the fireman's pole, that the technique of descending it should be demonstrated. The requirement to demonstrate was, he said, reinforced by the Training Notes. Ms Haines asserted in cross-examination that she had received in-house training which suggested that it was unnecessary to comply with the risk assessment and Training Notes. However, neither of those documents had been amended to indicate that demonstration of the fireman's pole could be omitted. That being the case, a reasonably competent instructor would, as a minimum, have demonstrated the use of the pole. Mr Weddell argued that the fact that the pole was wet was an additional reason for demonstrating the use of the pole. If the pole was wet and slippery, it was even more important that participants should understand the importance of using their legs and body, as well as their hands and arms, to control their descent. Mr Weddell also relied on Ms Haines’ failure to give the claimant proper instructions about the use of his legs to control his descent whilst sliding down the pole and on her failure to offer the claimant an alternative means of descent.

The defendant’s case

[132]For the defendant, Mr Glyn Edwards argued that the fact that Ms Haines did not demonstrate the use of the fireman's pole did not mean that she had acted in breach of her duty of care. It was plainly impracticable to demonstrate every feature of the Challenge Valley Course and it was not necessary for Ms Haines slavishly to comply with every instruction contained within the Training Notes. Rather, it was open to her to make a decision, based on her past experience of the ease with which participants had negotiated the fireman's pole, that it was not necessary to demonstrate that element of the Burma Bridge. Her experience had been that participants had no problem with the fireman's pole and thus she was entitled to conclude that no demonstration was necessary and that it had been sufficient for her to give oral instructions about the technique to be adopted. Conclusions[133]The defendant’s risk assessment identified the risk of participants slipping on one of the three elements of the Burma Bridge as a grade 3 risk. Of the 14 obstacles on the Challenge Valley Course, only seven had a risk assessed as high as grade 3. The risk assessment provided that the risk of slipping on the Burma Bridge was to be controlled by ensuring that the instructor demonstrated how to negotiate the obstacle, with the group watching each phase of the demonstration, and by the instructor supervising each participant individually across the obstacle. It is to be noted that the risk assessment provided for all seven of the obstacles with a grade 3 risk to be the subject of a demonstration, rather than oral instructions alone.[134]The general section of the Training Notes for instructors referred to the need to show participants the safe and easy way to negotiate obstacles in such a way that participants could see and hear the demonstration. The Burma Bridge was used as a specific example of this practice and instructors were advised that participants should stand to the left of the rope bridge whilst the instructor demonstrated how to negotiate the obstacle. The significance of standing on the left of the rope bridge was that it would afford participants a clear view of all three elements of the obstacle, including the fireman's pole. Thus the combined effect of the risk assessment and the Training Notes showed a clear intention that instructors should demonstrate the technique to be adopted on all three elements of the Burma Bridge. The Training Notes also highlighted the need for caution when using the fireman’s pole and the need for careful instructions on how to negotiate it.[135]I accept that it would not have been feasible for instructors to give a physical demonstration of each element of each obstacle on the Challenge Valley Course. To do so would have been a laborious and time consuming business and would have reduced participants’ enjoyment of the activity, particularly in cold or wet weather. However, the defendant’s documents did not contemplate that every obstacle (let alone every element of every obstacle) would be demonstrated. The risk assessment states that six out of the 14 obstacles should be demonstrated whereas, for the others, explanation and supervision were judged sufficient to manage the risk.[136]Ms Haines said that a practice had grown up, initiated or encouraged by the in-house training given to instructors, of omitting to demonstrate most of the obstacles or elements on the Challenge Valley Course. This practice was first mentioned in cross-examination and contrasted with Ms Haines’ assertion in her witness statement that it was her practice to demonstrate each of the obstacles on the Course. There has been no disclosure of documents showing the content of such training. Ms Haines did not assert that she had been specifically instructed that she need not demonstrate how to use the fireman's pole element of the Burma Bridge and there was no evidence about the practice of other instructors in relation to the fireman's pole. The effect of Ms Haines’ evidence appeared to be that instructors were permitted to use their discretion as to which obstacles needed demonstrating and which did not.[137]The defendant’s evidence on this was merely that the risk assessment and Training Notes were not intended to be followed minutely and that it was open to instructors to depart from them in some respects.[138]A departure from the risk assessment and/or the Training Notes would not of itself constitute a breach of duty. The documents are, however, significant in that they show a recognition of the risk of injury associated with using the fireman's pole and set out the measures which had been identified as being necessary to reduce or minimise that risk. Taking those matters and all the other circumstances into account, I must form my own view as to whether Ms Haines failed to exercise the standard of care required of a reasonably competent instructor in her position.[139]Ms Haines’ first explanation for her failure to demonstrate the fireman's pole was that the technique to be used was so “obvious” that it was unnecessary to give a demonstration. I am satisfied that that was her view. I am not persuaded that she had departed from the practice recommended in the risk assessment and the Training Notes because of training she had received. She had not suggested that this was so until she was cross-examined and it was not the explanation offered in her witness statement. It does not appear that either the risk assessment or the Training Notes were ever amended to reflect either a general discretion given to instructors to depart from the instructions contained in the documents or to relax the instructions given in relation to specific obstacles. I heard no evidence about the practice of other instructors, in particular any evidence that they also considered it appropriate to omit demonstrating how to slide down the fireman's pole.[140]I consider that, in judging that the technique to be used on the fireman's pole was so “obvious” that it need not be demonstrated, Ms Haines overlooked the fact that some participants – particularly older participants who had not commonly encountered fireman’s poles at an age when they were using playgrounds – might never have negotiated a fireman's pole before. Participants without experience of negotiating a fireman’s pole would need to be instructed how to move quickly and safely from the exit platform into the correct position on the fireman's pole and, in particular, about the vital role played by the feet and legs in controlling the speed of descent. As was recognised in the defendants’ documents, such instructions would most effectively have been given by accompanying them with a demonstration of the technique to be adopted.[141]A demonstration would also have enabled Ms Haines to ascertain whether the fireman's pole was wet and/or more slippery than usual, to alert participants if that was the case, to warn them of the possibility that they might descend faster than they expected and to emphasise the need for them to grip hard with their feet and legs, as well as their arms, hands and body in order to exercise maximum control of the speed at which they travelled down the pole. Ms Haines claimed to have recognised on the day of the accident that the pole might be more slippery than usual because she said that she warned participants of the fact. I have rejected her evidence that she gave such a warning to participants on the exit platform although I accept that she had given a more general warning whilst she was on the rope bridge.[142]Such a demonstration would have taken very little additional time. If the group had been standing in the position specified in the Training Notes (i.e. on the left hand side of the rope bridge), they could have remained in that same position throughout. Ms Haines could merely have continued with her demonstration of the fireman's pole after crossing the rope bridge. She could then have ascended the second tree by the ladder whilst the first member of the group was preparing to climb up the inclined log.[143]I consider that, by disregarding the contents of the defendant’s documents and reaching her own conclusion that the technique was so “obvious” that no demonstration was necessary, Ms Haines failed to exercise proper care for the safety of participants, in particular the safety of the claimant.[144]If Ms Haines had decided that a demonstration was unnecessary, it was vital that she should at least give clear and specific instructions to participants about how to negotiate the fireman's pole. I have found that she failed to do this. In particular, she failed to instruct the claimant and the scouts to wrap their legs around the pole and to explain to them that the importance of doing so was that it would enable them to control their speed of descent. I am satisfied that her failure to do this was in breach of duty.[145]The defendant’s Training Notes required instructors to ensure that participants attained a good grip on the pole with their legs before descending and suggested that, if a participant was nervous, the instructor should support him/her at waist height (e.g. by holding onto his/her waistband) until he/she was safely on the fireman's pole. Ms Haines’ evidence was that she would never have attempted to support a participant in this way. Her view – with which the experts in the case agreed – was that it would have been unsafe to do so. I share that view. Once a participant had launched himself/herself onto the fireman’s pole, he/she was committed and there was nothing an instructor could do apart from issue oral instructions. Any attempt to support the weight of a participant – particularly an adult participant like the claimant – would have been unsafe for both instructor and participant.[146]I have already found that the claimant’s accident probably happened because he failed to appreciate the importance of wrapping his legs firmly round the fireman's pole immediately on launching himself from the platform onto the pole and relied solely on grasping the pole first with one hand and then with both. I am satisfied that, had Ms Haines given him full instructions as to how to negotiate the fireman’s pole (whether or not those instructions were accompanied by a demonstration), it is probable that he would have been alerted to the importance of wrapping his legs round the fireman's pole immediately he launched himself from the platform onto the pole (rather than, as I found he did, concentrating solely on grasping the pole with his hands and hugging it) and that he would have succeeded in following the instructions and would have landed without sustaining injury. If, upon seeing a demonstration and being informed (as he should have been) that there was an optional alternative means of descent, the claimant would have been in a better position to decide whether he would be able safely to negotiate the fireman’s pole. If he had been seriously concerned about his ability to negotiate the fireman's pole, he might, as he said, have elected to descend by means of the ladder. However, I regard it as probable that he would have felt able to follow the instructions and to descend the fireman's pole safely and that he would have succeeded in doing so.[147]I accept the defendant’s evidence that, during the long period for which the Challenge Valley Course has been in operation, there have been many descents of the fireman's pole without incident or injury. Nevertheless, the potential for injury was clearly identified in the defendant’s documents, which provided for sensible and proportionate measures to guard against the risks which were recognised to exist. It may be that accidents had been avoided in the past because those measures had been taken. I have no information about the frequency prior to the accident with which instructors had failed to demonstrate how to negotiate the fireman's pole and/or failed also to give instructions about the use of the feet and legs to control the speed of descent. My findings relate to the circumstances that existed on the day of the claimant’s accident as I have found them to be. I consider that those circumstances gave rise to a breach of duty which on a balance of probabilities was causative of the claimant’s accident.

The need for a braking device

[148]Whether or not the defendant should have provided a braking device for participants negotiating the fireman’s pole depends on the free fall of height. The basis for measuring the free fall of height in circumstances such as this is not entirely clear, at least from the evidence available to me. On balance, however, I consider that the approach advocated by Mr Mackay is probably correct, namely that the free height of fall should be calculated on the basis that participants were “climbing” down the fireman's pole. On the basis that such a participant would have grasped the pole at a maximum height of, say, 3.5 metres, the free height of fall would have been 2.5 metres (3.5 metres minus one metre), i.e. below the height at which a braking device was necessary. In the circumstances, I find that there was no obligation on the defendant to provide a braking device. The need for adequate impact attenuation Breach of duty

The need for adequate impact attenuation

[149]I turn now to the adequacy of the landing area for the fireman's pole. In the absence of any documentary evidence to support the assertion by the claimant’s expert that the British and European Standards relating to playgrounds and play equipment apply to the Challenge Valley Course, I cannot be satisfied that those Standards were directly applicable to the Course. However, it seems to me that, even so, the Standards must provide guidance to those designing and operating facilities such as the Challenge Valley Course about the levels of impact attenuating material which are appropriate where participants are liable to fall from a significant height. My view about this is supported by the defendant’s own evidence that, when designing and constructing the Challenge Valley Course, he used the existing Standards for play structures as a basis for his work.[150]The Standard which governs ropes courses, BS EN 15567, came into force in 2007, many years after the construction of the Challenge Valley Course. It was not retrospective. However, that does not mean that operators of existing ropes courses could merely ignore the new Standard. The experts agreed that good practice required redevelopment in accordance with the new Standard to be implemented as soon as reasonably practicable. This defendant was obliged by his membership of the BAHA to comply with its Code of Practice which required that the Challenge Valley Course should meet “current” Standards. Moreover, he was well aware of the existence and provisions of BS EN 15567 since he had served on a working party which had been instrumental in devising the Standard. Thus, when BS EN 15567 came into force, the defendant should have considered whether the Challenge Valley Course complied with its provisions. That exercise should have led him to consider, for example, whether the landing area for the fireman's pole should be extended to meet the requirements of paragraph 4.3.4.3 of BS EN 15567. By the time of the experts’ inspection in March 2012, those requirements were still not being met.[151]BS EN 15567 does not contain any specifications for the use of impact attenuating materials, although reference is made to the need for a safety system (one example of which is an impact absorbent floor) where participants’ feet are at a level more than 1 metre above the ground. The need for impact attenuating material on the landing area round the fireman's pole should have been evident and indeed had been recognised by the defendant many years previously as a result of an ankle injury sustained by a participant who had landed awkwardly after sliding down the fireman's pole.[152]Once the defendant had appreciated that impact attenuation was necessary, he should have carried out some basic research into the depth and type of material that would be appropriate. Such research would or should have led him (had he carried the research out before 2008) to the data contained in BS EN 5696 or BS EN 1177, both of which would have advised that a minimum depth of 300mm of loose particulate surfacing material (i.e. bark and/or woodchip) was required for impact attenuation in a playground. After 2008, his research would have led him to Table 4 of BS EN 1176:2008. Given that the Challenge Valley Course was used by children, albeit under supervision, I consider that it should have been clear to the defendant that, in the absence of Standards catering specifically for ropes courses, the guidance contained in those Standards provided the best guidance for his purposes and that he should have complied with it. In his evidence, the defendant gave no indication that he had carried out any research. In his witness statement, he said merely that, after the previous injury, he had provided a level landing surface with a woodchip surface between 200mm and 300mm deep which was raked over regularly.[153]The depth of impact attenuating material required for the landing area depended on the free height of fall. I have found that the free height of fall for these purposes was 2.5 metres. On the basis of Table 4, it can be inferred that a minimum depth of 250mm of bark and/or woodchip provides adequate protection for a critical fall height of 2.5 metres.

The state of the landing area on the day of the claimant’s accident

[154]The defendant’s case is that the state of the landing area on the day of the claimant’s accident would have been similar to the conditions found by Mr Martin and himself when they excavated the landing area in September 2011, i.e. a layer of woodchip some 250mm deep. However, the evidence about the findings in September 2011 is unsatisfactory. It came from the defendant alone and, whilst I do not consider that he has deliberately misrepresented what he found, it must be recalled that the purpose of the excavation in September 2011 was once again to investigate the presence of a concrete base, rather than to examine the impact attenuating materials. My understanding is that the defendant’s evidence that the depth of woodchip was about 250mm resulted from an estimate made by him some time after the excavation, rather than an actual measurement taken at the time. I consider that his estimate may well have been erroneous, particularly since the defendant suggested that the tree roots (which were found at the joint inspection to be contained within 100mm-150mm of the surface of the landing area) lay below the 250mm layer of woodchip. If the defendant’s estimate was correct, the conditions as at September 2011 must have been entirely different from those at the joint inspection in March 2012.[155]It is clear from the joint inspection that the natural features in the area of the Burma Bridge obstacle make the landing area round the fireman's pole liable to the ingress of water and soil and thereby to compaction. I accept Mr Petherick’s evidence that, at the time of the joint inspection, taking into account those features and also the fact that the layer of woodchip and bark was only 150mm deep and was contaminated with tree roots, silt and soil, the landing area did not, when viewed on an objective basis, have adequate impact attenuating properties for a critical fall height of 2.5 metres. I was unimpressed by Mr Mackay’s assertion that his subjective assessment, reached by sliding down the fireman's pole a few times, was a better indicator of the safety of the landing area than the application of the recognised Standards. In any event, the object of the Standards is to ensure that adequate impact attenuation is present at all times, whatever the external conditions. It may be that, given the particular ground conditions at the time of the joint inspection, the impact attenuation on that day was in fact adequate. However, on another occasion, when the conditions were different and the ground was compacted, it may have been wholly inadequate.[156]It is not in dispute that the photograph of the landing area taken on the day of the claimant’s accident shows heavy compaction around the immediate vicinity of the bottom of the pole. Some woodchip material is evident but it is impossible to say how deep it is. The impression of the witnesses who saw it at the time was that it would not provide much “cushioning”. That view appears to have been shared by one of the defendant’s employees since, within a couple of days of the accident, additional woodchip material was spread around the pole. The new layer of material does not appear very deep (Mr Kavanagh estimated its depth at about 2-3 inches (51-76mm)) and it is possible, as the defendant, suggested that it had been relocated from elsewhere on the landing area.[157]Although it is impossible to be certain, I find that it is probable that the conditions on the day of the claimant’s accident were no better – and may have been worse – than those seen by the experts during their joint inspection. That is the impression created by the photograph taken on the day of the accident. Also, by March 2012, the defendant was aware of the claimant’s accident and of the risk of other similar accidents and knew that the landing area was going to be inspected by the experts instructed in the case. If the landing area had been in a significantly better condition at the time of the claimant’s accident, it seems unlikely that the defendant would not have maintained it in that condition or, at the very least, have ensured that it was restored to its previous state for the inspection. Thus I consider it likely that there was in general no more than a layer of about 150mm of impact attenuating materials in place on the landing area and that that was the position at the time of the accident. I also find that the impact attenuation of the landing area was reduced by the presence of tree roots and other materials which permeated that layer. I find that, in failing to provide adequate impact attenuation, the defendant was in breach of duty.

Causation

[158]In order to establish liability in respect of the defendant’s failure to provide adequate impact attenuation, it would be necessary for the claimant to establish on a balance of probabilities that the absence of adequate impact attenuation caused or materially contributed to his injury.

The claimant’s case

[159]Mr Weddell contended that, in order to establish causation, it was sufficient for the claimant to demonstrate that the defendant had been negligent and that the injury suffered by the claimant was of the kind that was likely to have resulted from that negligence. The provision of adequate impact attenuation would have been intended to prevent injury resulting from a fall from the fireman’s pole; thus, the court could properly infer that the probability was that the defendant’s negligence had caused the claimant’s injury.[160]In support of that proposition, Mr Weddell relied on the Court of Appeal’s decision in Vaile v London Borough of Havering [2011] EWCA Civ 246. In that case, the claimant, a teacher in a special school, was attacked and injured by a pupil with special needs. The pupil had been identified as having an autistic spectrum disorder (ASD) but the claimant was not aware of that and had not been advised as to the techniques that she should adopt when dealing with him. The judge at first instance did not find negligence and further found that, even if negligence had been established, the claimant had not proved that knowledge of the pupil’s ASD and use of the correct techniques for handling him would have prevented the claimant’s injury. The Court of Appeal disagreed. Longmore LJ, giving the leading judgment, said at paragraph 32:
“Although Drake v Harbour [2008] EWCA Civ 25 was a very different case on the facts (because there were a number of possible candidates for the cause of a fire in an unoccupied house) the words of Toulson LJ in paragraph 28 are apposite: “Where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that is was probably so caused, even if the claimant is unable to prove positively the precise mechanism.”
It may be difficult for [the claimant] to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children but the probability is that, if proper care had been taken over the relevant three year period, she would not have met the injury she did.” “Where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that is was probably so caused, even if the claimant is unable to prove positively the precise mechanism.”[161]Mr Weddell submitted that the position was the same in this case. The court should infer that, had the defendant provided impact attenuating materials of the correct depth and unadulterated by tree roots and other material, the claimant’s injury would probably not have occurred.

The defendant’s case

[162]Mr Edwards argued that the claimant had failed to establish causation on what is colloquially known as the “but for” test. He relied on Clough v First Holidays and Flights Ltd [2006] EWCA Civ 15. In that case, the claimant, who had been drinking, sustained a catastrophic injury when he slipped from a wall surrounding a pool at a holiday complex. The wall had not been treated with non-slip paint, an omission which the judge found was negligent. However, he found that, even if anti-slip paint had been applied, it would not have rendered the wall completely non-slip and that, given the claimant’s inebriated state, he was unable to prove that his accident would not have happened in any event. The Court of Appeal upheld that conclusion. Giving the leading judgment, Sir Anthony May P said at paragraph 44:
“… The claimant is required to establish a causal link between the negligence of the defendant and his injuries, or, in short, that his injuries were indeed consequent on the negligence. Although, on its own it is not enough for him to show that the defendant created an increased risk of injury, the necessary causal link would be established if, as a matter if inference from the evidence, the defendant’s negligence made a material contribution to the claimant’s injuries.”
[163]Mr Edwards contended that no such inference could be drawn here. It would have been open to the claimant to adduce medical and/or technical evidence to support his argument that, if sufficient impact attenuation had been provided, he would not have sustained his injury or his injury would have been less severe. In the absence of such evidence, causation could not be inferred.

Conclusions

[164]It seems to me that this case is very different from Vaile. There, it was not possible for the claimant to establish the precise mechanism by which her accident and injury could have been avoided. In this case, there is no doubt about the mechanism by which it is being said that the injury could have been avoided.[165]The impact attenuation requirements contained in the relevant Standards are formulated by reference to the levels which testing has shown to provide adequate protection for children falling on their heads from play equipment at various heights. I have no evidence about the level of protection, if any, that those levels of impact attenuation would afford against spinal injury to an adult male weighing 13½ stone who landed heavily in a sitting position from the same heights. In particular, I have no medical or technical evidence to assist me on this point. I have no material upon which I can conclude whether, on a balance of probabilities, the injury would have been less severe or would have been avoided if adequate impact attenuating material had been in place. In those circumstances, I find that the claimant has failed to establish the necessary causative link between his injury and the defendant’s breach of his duty to provide adequate impact attenuation. QUANTUM OF DAMAGES The claimant’s domestic situation

QUANTUM OF DAMAGES

[166]The claimant had married in August 2007. As a child, his wife suffered from a rare condition, dermatomyositis, which left her with severe muscular weakness and contractures of the joints. She cannot stand, walk or reach and is confined to a wheelchair. She requires assistance with all transfers and with other manoeuvres. She has assistance from carers twice a day and the couple’s house has been specially adapted for her use. When she is away from home and is in an environment with no modifications, she needs more help than at home. In particular, if the premises are more than one storey, she has to be carried upstairs. Before his accident, the claimant would assist his wife as necessary and, when the couple were away, he would carry her upstairs.[167]In December 2008, the claimant and his wife had a son. Because of Mrs Wilson’s disabilities, the claimant provided much of his day-to-day care.

The medical evidence

[168]The claimant’s injuries were described in the Reports of Professor Jeremy Fairbank, the consultant orthopaedic surgeon instructed on his behalf and of Mr James Kellerman, the consultant neurosurgeon instructed by the defendant. They were in agreement and were not therefore required to give oral evidence.[169]As a result of his accident, the claimant suffered a severe burst fracture of the first vertebra of his lumbar spine (L1). The fracture was unstable and required internal fixation. He suffered acute pain immediately after the accident and, during the six days before he underwent surgery. The surgery consisted of a posterior fixation of the fracture with pedicle screws from the twelfth thoracic vertebrae to L1. He was discharged from hospital after a fortnight wearing a spinal brace which he had to wear for the following six months. Together with his wife and son, he went to stay at the home of his wife’s parents where he was cared for until he was fit to make the journey back home.[170]The claimant suffered continuing pain and disability on his return home. He was gradually able to mobilise in his brace but was unable to perform many of his usual daily tasks and caring responsibilities, such as lifting his son or playing with him on the floor and assisting his wife with transfers. He could not drive. He and his wife required help from family and friends during this period. The claimant tired easily, and was still taking powerful pain-killers. He was not sleeping well. He underwent a course of physiotherapy. From November 2009, he was able to remove his brace on occasions and he ceased wearing it altogether in February 2010.[171]The claimant began working as a taxi driver again in early March 2010, at first for a very limited number of hours which he increased gradually. At that time, he was still suffering from constant discomfort in his back, together with stiffness. After long periods of sitting at the wheel of his taxi his stiffness increased. In May 2010, his physiotherapy sessions ceased, but he continued to do the exercises he had been prescribed, with occasional sessions at a gym and swimming. In December 2010, the claimant was still reporting pain in his lower back radiating to his hips together with stiffness, especially in the mornings. His walking was limited. He was by this time able to assist with his wife’s transfers but was still unable to lift and handle heavy objects.[172]By December 2011, the claimant was still suffering from some aching in his back, together with fatigue after working for long periods. His sleep had improved, although he still had pain in the morning. Professor Fairbank considered that the claimant’s symptoms had stabilised. He did not anticipate that there would be any major deterioration or improvement in his symptoms although he considered that an increase in the claimant’s general fitness would assist his recovery. He noted that the claimant was experiencing difficulty discharging his caring responsibilities for his wife, especially when the couple went on holiday. He did not believe that this was likely to change in the future. He considered that the claimant would manage to cope with working up to 35 hours a week.[173]Mr Kellerman saw the claimant in 2012. At that time, his symptoms were persisting and he was unable to pursue his previous hobby of go-karting because of pain. He had increased his hours of work to 30 hours per week but would like to do more if he could.[174]Both the medical experts considered that the claimant would continue to experience pain and disability. They judged it unlikely that he would require any further surgical intervention unless the fixation devices failed and required removal. They assessed the risk of this occurring at about 5%. They anticipated that he would be able to work as a taxi driver until the normal retirement age, although not as many hours as if he was fully fit. They agreed that, if he lost his job as a taxi driver, he would be at a disadvantage on the open labour market.

Damages for pain, suffering and loss of amenity

[175]Damages for pain, suffering and loss of amenity were agreed at £25,000. To that should be added interest, to be assessed if not agreed.

Past losses

[176]Past losses incurred in respect of travelling expenses(£105), care (£2037.25) and miscellaneous expenses (£160) were agreed.

Past loss of earnings

[177]The appropriate figure for past loss of earnings was in dispute. The claimant has operated a taxi business since 2000. Before his accident, the core of his business consisted of regular contracts for transporting children (mainly children with special needs) to and from school and taking social services clients to and from places such as respite centres. His passengers were often wheelchair bound and/or very overweight and required physical assistance.[178]The claimant said that, before the accident, he held regular contracts which amounted to 50 hours’ work a week. In addition, he transported passengers to and from airports, public houses and social events such as weddings. He estimated that he would work a total of between 60 and 70 hours a week. He took a minimal amount of holiday. In 2008/9, he was unable to work such long hours. His wife was taken into hospital at one point during her pregnancy and his son was born in December 2008. He had managed to honour his contracts but had cut back on other work. He said that, as a result, his earnings reduced in the year 2008/9 and were not representative of his true earning capacity.[179]The claimant’s net profits for the five years prior to his accident were: 2004/5 : £10,247 2005/6 : £12,214 2006/7 : £18.985 2007/8 : £14,055 2008/9 : £11,211[180]When he first returned to work in March 2010, the claimant was able to drive for only short periods each day. By that time, he had lost his regular contract work and was instead undertaking more private trips to the airport which required no heavy lifting. Gradually, he was able to increase the amount of work he undertook. He estimated that by mid-2010, he was doing about 20 hours’ work a week and that, by June 2011, he was averaging about 30 hours per week. On the occasions when he worked for longer periods, he suffered considerable pain and stiffness. He continued to transport a significant number of passengers who were wheelchair bound and who required assistance getting in and out of his taxi which imposed strains on him.[181]By 2012, the claimant had decided that he would not be able to return to contracting work and that he should therefore change from a taxi to a private hire business. He sold his taxi and purchased an estate car for that purpose. The claimant’s evidence was that, since changing the nature of his business, his pain levels had reduced. At the trial, he said that he was getting close to managing 35 hour’ work a week. He accepted that, after the birth of his son, he would have wanted to spend time with him and that he might have reduced his working hours in any event to do that. However, he emphasised that he had to earn enough to maintain his family.[182]Mr Weddell submitted that it was appropriate to use as the multiplicand for past earnings a figure of £14,651, that being the average annual net profit over the three years prior to the claimant’s accident, adjusted to remove profit/loss on the sale of the car(s) used in his business. Based on a multiplicand of £14,651, the claimant’s total net earnings from the date of his accident up to the date of trial (if his accident had not occurred) would have been £51,852. His actual net earnings for that period were £23,423, producing a figure for past loss of earnings, to round figures, of £28,430.[183]Mr Edwards pointed out that the claimant’s net profits for the year 2006/7 were significantly more than in either the previous year or the year after. The trend of his earnings from 2006/7 to the date of the accident had been downwards. His earnings during the four months before his accident suggested that his annual earnings for 2009/10 would, but for his accident, have been very similar to those for 2008/9, i.e. only about £11,211. There was, Mr Edwards submitted, no reason to believe that anything would have happened to increase the claimant’s annual earnings in the years that followed. Thus, Mr Edwards contended that, had it not been for the accident, the claimant would have earned an annual sum of £11,211, i.e. a total figure of £36,553.[184]As to his actual earnings since the accident Mr Edwards submitted that the figures suggest that, during 2010/11, the claimant achieved a gross turnover which was 73.05% of his turnover in 2008/9. Mr Edwards argued that if the claimant was working 30 hours a week in 2010/11 as he claimed, he must have been working for only 40 hours a week in 2008/9. Mr Edwards submitted that it could not be right that the claimant had been working as many hours as he claimed. He argued that there was no medical reason why the claimant could not have worked at his pre-accident levels since his return to work if he chose. In 2011, Professor Fairbank had said that he was capable of 35 hours a week. Mr Edwards argued that the claimant could have worked for 35-40 hours a week from 2011 onwards had he chosen to do so. He submitted that, if the claimant was telling the truth about the number of hours he had worked before the accident, the figures showed that the type of work he was now doing was significantly better paid than the work he had been performing previously. Thus, even if he were unable to work as many hours as before the accident, his earning capacity remained the same.[185]I do not accept that it is appropriate to take as a multiplicand for the claimant’s pre-accident earnings the average of either his previous five years’ earnings or his previous three years’ earnings. The claimant’s earnings in 2006/7 were significantly higher (by almost £3,500 net, after taking into account the sale of assets) than any other of the five years prior to his accident. It seems likely that the claimant was working abnormally long hours that year. To include his earnings for that year when calculating the multiplicand would give an inflated figure for his annual earnings had his accident not occurred.[186]I find that it is probable that, after his marriage in August 2007, the claimant reduced his hours somewhat to take account of his wife’s needs. The further reduction in his earnings in 2008/9 was, I find, accounted for by his wife’s problems in pregnancy and their baby’s birth. In August 2009, when the claimant’s accident occurred, the baby was still only nine months old. I find that it is probable that the claimant’s earnings would have remained the same in 2009/10 as in 2008/9 (i.e. about £12,493, taking into account the loss of £1,283 incurred in that year). I find that both those years’ earnings were abnormally low because of the claimant’s family responsibilities and that he would have been able, and would have wanted to, work longer hours in the years that followed.[187]I find that, by 2010/11, the claimant’s net earnings would have risen to £13,000 and in 2011/12 to £13,500, i.e. close to, but not as high as, his earnings in 2007/8. I do not consider it likely that his earnings would have reached the same level as in 2007/8 because he would have wanted to spend some of his time with his young son.[188]I therefore calculate the claimant’s net annual earnings had his accident not occurred as follows: 10.08.09-31.03.10 (0.64 years x £12,493) £ 7,995 01.04.10-31.03.11 £ 13,000 01.04.11-31.03.12 £ 13,500 01.04.12-28.02.13 (£13,500÷12x11) £ 12,375 TOTAL £ 46,870[189]I have no doubt that the claimant is a genuine hardworking man who is keen to do his best to maintain his wife and son. He has taken sensible steps to adapt his business to accommodate his continuing back problems. I am entirely satisfied that he has worked as many hours as he reasonably could, given those problems. I therefore adopt the claimant’s figure for actual earnings, adjusted to 28 February 2013, of £27,366.[190]That gives a figure for past loss of earnings of £19,504[191]Total past losses therefore amount to £21,806 excluding travelling expenses , to which should be added interest to be assessed if not agreed.

Future losses

[192]The parties have agreed three of the heads of future loss, namely DIY/gardening (£8,000), miscellaneous expenses (£350) and additional holiday costs (£18,058). The claimant did not pursue his claim for loss of pension.

Future loss of earnings

[193]The claimant is aged 49 years, 9 months. Bearing in mind in particular his wife’s condition, it seems to me probable that, even had his accident not occurred, he would either have retired before the age of 70 or (perhaps more likely) worked to the age of 70 but reduced his hours over the last few years’ of his working life. In order to take account of that, I have adopted the working life multiplier for uninjured earnings (for a person of the claimant’s age who is “not disabled, employed, education below good GCSE level” Facts & Figures 2012/13, Table A4 at page 21) ) to age 68, i.e. 11.73.[194]The claimant’s pre-accident future earnings would therefore have been £13,500 x 11.73 = £158,355.[195]As to the claimant’s actual future earnings, I do not accept the defendant’s contention that, as a result of the recent reorganisation of his business, the claimant will be able to earn as much as he did in his pre-accident state. Whilst it seems that the type of private work that he now carries out is more remunerative than the contract work which previously formed the mainstay of his business, I do not consider that he will be able to generate his full pre-accident earnings despite working fewer hours. I accept his evidence that a significant increase in his working hours beyond what he is presently doing will not be possible because of the pain and stiffness caused to him by long periods of driving. I consider it probable that the claimant may be able to improve slightly on his earnings for 2011/12, but not to any great extent. Doing the best I can, I assess his likely average annual earnings at £11,500.[196]Mr Weddell contended that the future multiplier should be calculated on the basis that the claimant is to be regarded as “disabled” for the purposes of Table A4. For these purposes a person is classified as being disabled if all three of the following conditions in relation to his/her ill-health or disability are met:• He/she has either a progressive illness or an illness which has lasted or is expected to last for over a year;• The impact of his/her disability substantially limits his/her ability to carry out normal day-to-day activities; and• His/her condition affects either the kind or the amount of work he/she can do.[197]On the basis of the medical evidence, there can be no doubt that the claimant’s continuing back problems have already lasted for more than a year and will be permanent and that they significantly affect the amount – as well as the type – of work he is able to do. His back problems also prevent him from lifting heavy weights and carrying out gardening and decorating work. Even more importantly, they reduce his ability to give all the physical assistance that his wife needs. I am satisfied that the claimant meets the criteria for “disability”. I have therefore adopted a working life multiplier (for a person of the claimant’s age who is “disabled, employed, education below good GCSE level” Facts & Figures 2012/13, Table A4 at page 21 ) to age 68, i.e. 5.57.[198]The claimant’s post-accident future earnings will therefore be £11,500 x 5.57 = £64,055.[199]This produces a figure for total loss of future earnings of £94,300.

The cost of setting up a private trust

[200]The claimant’s award of damages may fall to be taken into account for the purposes of calculating Mrs Wilson’s entitlement to funding from the Independent Living Fund (ILF). ILF funding pays for Mrs Wilson’s carers. If the claimant’s damages were to be taken into account, she would lose her entitlement altogether and the potential cost of providing equivalent care would be very substantial indeed. It is not absolutely clear whether or not an award of damages to the claimant would affect Mrs Wilson’s entitlement to ILF funding since the correspondence from the ILF is based on the mistaken belief that she, rather than her husband, is the claimant in this action. Mrs Wilson herself understands that joint capital is taken into account in the means testing process. She also believes that ILF funding may cease to be available, in any event, from about 2015.[201]In order to guard against the risk of losing Mrs Wilson’s entitlement to ILF funding, the claimant intends to place his damages in a personal injury trust at an estimated cost of £3,360, thereby protecting it from inclusion in the means testing process. The claimant claims that sum from the defendant contending that, if it had not been for the defendant’s negligence, he would not have had to pay for the formation of a trust. The defendant argued that, since the trust would be formed in order to protect the entitlement of the claimant’s wife to funding, it was not open to the claimant to include the costs of setting up the trust in his claim. Furthermore, it is argued that the head of damage is too remote to be recoverable.[202]The right to ILF funding belong to Mrs Wilson, and not to the claimant. That being the case, the cost of preserving that right cannot be recovered in the claimant’s claim. I make no award under this head.[203]The total award for future losses is therefore £120,708.

The total award of damages

[204]The total award of damages is therefore as follows: Pain, suffering & loss of amenity £ 25,000 Past losses £ 21,806 Future losses £120,708 TOTAL DAMAGES £167,514[205]There will therefore be judgment for the claimant in the sum of £167,514, together with interest to be assessed if not agreed. I am told that there are outstanding issues between the parties to be determined and a hearing for that purpose will be held in a few weeks’ time.