Maylin v Dacorum Sports Trust (t/a XC Sportspace) [2017] EWHC 378 (QB)

Case No HQ15001637[2017] EWHC 378 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/03/2017
Before
HIS HONOUR JUDGE MCKENNA
Between
MISS EMMA MAYLINClaimantDACORUM SPORTS TRUST trading as XC SPORTSPACEDefendant
CATHERINE FOSTER (instructed by SIMPSON MILLAR LLP) for CLAIMANTPETER BURNS (instructed by CLYDE & CO CLAIMS LLP) for DEFENDANTHearing Hearing date: 14 FEBRUARY 2017
JudgmentHIS HONOUR JUDGE MARTIN MCKENNA :
[1]In this action Miss Emma Maylin, the Claimant, who is now 29 years of age and whose date of birth is 14 July 1987 claims damages in respect of a back injury (namely a unstable fracture of the T12 disc) sustained in a accident which occurred at about 16:45 hours on 11 January 2014 when she fell from a bouldering wall whilst undertaking rock climbing activities at a centre which is occupied and operated by the Defendant, Dacorum Sports Trust trading as XC Sportspace (the Centre).[2]The prognosis in respect of the Claimant’s condition remains uncertain and against this background the matter was listed for the issue of liability to be determined as a preliminary issue by an order of Master McCloud dated 19 May 2016.[3]Although the claim was pleaded under the Occupiers Liability Act 1957 and in common law negligence, it was conceded at the outset of the trial that the unfortunate accident to Miss Maylin occurred in the context of her undertaking an activity which had inherent danger and was not because of the dangerous state of the premises in question and so the claim under the 1957 Act was not pursued.[4]Liability, causation and contributory negligence are all in issue.

Background

[5]The Centre is a large climbing centre offering a number of facilities to members of the public including both climbing walls and a bouldering wall. The climbing walls are high walls fitted with a variety of hand holds and foot holds where climbers wear harnesses and use ropes. The bouldering wall, by contrast, is a lower wall but one which is also fitted with a variety of hand holds and foot holds with a deep mat at its base but where ropes are not used.[6]There are a variety of options available to those wishing to use to the Centre’s facilities. Some, such as taster sessions, beginners’ courses and personal lessons, include supervision and training but there is also the opportunity, at lower cost, for general admission which does not include any supervision or prior training.[7]At the material time, members of the general public, however, were not allowed general admission unless they had completed and passed a rope test or were accompanied by someone who has passed such a test. This is known as “buddying”. Since the unfortunate accident to Miss Maylin, it appears from a print of the Defendant’s website that those new to bouldering are required to book an induction with the Defendant before using the Centre’s bouldering facilities.[8]On 11 January 2014 Ms Maylin together with Neil Proctor, whom she had recently met, attended the Centre in order to undertake indoor rock climbing activities. The Claimant who had never before tried this sport was therefore a novice whilst Mr Proctor, having previously completed a beginner’s climbing course at the Centre in August 2013 and been signed off as “rope competent” was a competent climber permitted by the Defendant to supervise the Claimant.[9]On arrival at the Centre Ms Maylin and Mr Proctor went to reception and Ms Maylin paid for general admission for herself and Mr Proctor using a debit card. She was required to and did complete what has been referred to as a disclaimer form (the Disclaimer) which included the following Participation Statement:
“The British Mountain Council recognises that climbing and mountaineering are activities with a danger of personal injury or death. Participants in these activities should be aware of and accept these risks and be responsible for their own actions”
[10]The form then requires a yes or no answer to various questions including the following:
“Do you understand that failure to exercise due care could result in your injury or death? Do you have any questions regarding the application and Conditions of Use or Rules? Do you agree to abide by the Rules of the climbing centre?”
The Claimant answered yes to the first and third of these questions and no to the second. On the reverse of the document are to be found Climbing general rules and Terms and Conditions which included the following under the heading “Bouldering”- Do you have any questions regarding the application and Conditions of Use or Rules? Do you agree to abide by the Rules of the climbing centre?” “Always climb within your capabilities and descend by down climbing”

Do you have any questions regarding the application and Conditions of Use or Rules?

[11]Miss Maylin was told that she would need a harness so she hired one and it was made clear to her that it would be Mr Proctor who would be responsible for ensuring that her harness was fitted properly. She was asked if she wanted to hire specific climbing shoes but, on being informed that the trainers which she was wearing would be alright, she declined. Miss Maylin and Mr Proctor then went into the main hall and waited until a member of staff came and handed harnesses to Mr Proctor who helped her into one.[12]No safety briefing was given by any member of the Defendant’s staff to Miss Maylin at any stage.[13]After spending a relatively short period of time rope climbing on a climbing wall Miss Maylin and Mr Proctor moved onto the bouldering wall. Miss Maylin watched Mr Proctor ascend and descend two or three times and then made her own attempt, initially on the right hand side of the wall, but then on the left. She used a yellow route which Mr Proctor had told her was the easiest route to climb. On about her third attempt at this route, when she had almost reached the top, her right foot slipped off the block and she fell landing on her bottom and sustaining a serious injury to her back.

The Evidence

[14]The court has evidence from the Claimant and from Miss Erin Dabbs who at the material time, but no longer, was employed by the Defendant as its operations manager at the Centre.[15]Although there were a number of other witness statements filed on the Defendant’s behalf in the event no other witnesses were called.[16]Miss Maylin was, to my mind, patently an honest witness doing her best to assist the Court. She answered questions put to her clearly carefully and articulately and did not seek in any way to be evasive even when asked about matters which might be perceived to have been difficult so far as her case was concerned, such as the extent to which she read the Terms and Conditions printed on the reverse of the Disclaimer. When there was any delay in her response, it was because she was being thoughtful in her response rather than because she was seeking to dissemble.[17]Miss Maylin readily accepted that she had read the Participation Statement at the top of the Disclaimer and that she was therefore well aware that climbing was a dangerous activity and that she should not attempt to undertake anything which she felt was beyond her skill level. She also accepted that she had completed the front of the form and had read or “skim read” at least part of the Terms and Conditions to be found on the reverse of the Disclaimer albeit that she pointed out that she was doing this at the same time as she was going through the process of paying for the session by debit card and therefore, to an extent at least, understandably, her attention was distracted.[18]She accepted that at no stage did anyone indicate that anyone employed by the Defendant would supervise or train her. She was, however, aware that there were members of staff in the climbing area and she assumed that they would provide some sort of supervision although she frankly admitted that she did not rely on anything done or said by any member of the Defendant’s staff when arriving at that assumption. She was not aware of the various alternative bases on which she could have used the Centre’s facilities nor did she seek to explore any possible options whilst at reception or otherwise.[19]Miss Maylin said that she did not see any relevant signage but conceded that she wasn’t really looking for any and relied on Mr Proctor to answer any questions that she had relating to the activities with which they were concerned.[20]She readily accepted that there was an obvious risk of falling off the bouldering wall onto the mat below but she believed, based on the thickness and texture of the mat, that if she fell, it would, as she put it, take the impact and break her fall. She would not accept that the mat could not provide an absolute guarantee of safety and maintained that if she had been made aware that the mat would not necessarily have prevented injury she would not have climbed as high as she did as she was, in general terms, risk averse.[21]Miss Dabbs whose responsibilities included health and safety accepted that novices in the position of Miss Maylin should receive a safety induction or be supervised by a competent person but maintained that a combination of the provision of the information on the Disclaimer and relevant signage was sufficient to draw the Claimant’s attention to the relevant risks. She accepted that the fact that Mr Proctor had passed a rope test was of no relevance to bouldering which did not involve any rope work but insisted that the buddy system employed at the Centre was considered best practice in the industry and pointed out that the course which Mr Proctor had undertaken in August 2013 had included a section on bouldering.[22]So far as signage was concerned she pointed to a notice headed “Good Practice For Bouldering” which included the following:• . Avoid uncontrolled falls, they are likely to result in injuries to yourself or those around you• . Descend either by down climbing or a controlled fall.• . THE SOFT MATS DO NOT MAKE IT ANY SAFER, BROKEN OR SPRAINED LIMBS ARE COMMON.” This notice was on A3 or A4 laminated paper and had been up since the Centre opened in 2011 and was located on a wall to the right as the bouldering area is entered from the main hall and was opposite other notices warning of risks which included a copy of the Participation Statement and a warning that soft mats do not remove the risk of injury which were located on the left hand side as participants entered the bouldering area above some lockers such the Claimant would have had to walk past both to access the bouldering wall.[23]Miss Dabbs evidence that bouldering did not require specific climbing shoes and that trainers or similar sports footwear as was in fact worn by Miss Maylin were entirely appropriate, evidence which was not seriously challenged and the substance of which I accept.

Discussion and Conclusions

[24]What is said on behalf of the Claimant in essence is that, in breach of its common law duty, the Defendant failed to draw the Claimant’s attention to the risks involved in the activity she was intending to undertake and failed to provide basic, but not necessarily obvious, safety information to her in order to enable her to keep herself safe and that such failures were causative of the injuries sustained on 11 January 2014.[25]Reliance is placed on a code of practice produced by the Association of British Climbing Walls and in particular on the following: 6. Novice boulderers must receive a safety induction or be supervised by a competent person. Due to the higher risk of injury from bouldering, the ABC recommends a safety induction for any novice boulderer wishing to boulder unsupervised. The ABC guidelines provide further guidance.[26]It is also to be noted that since the accident to the Claimant, as I have recorded, the Defendant does now require novice boulderers to undertake an induction prior to using that particular facility.[27]At the heart of this case therefore is whether the Defendant in the particular circumstances of this case was under the duty to provide a safety induction or briefing or to supervise Miss Maylin and to warn her that there was a risk of injury notwithstanding the provision of matting. This, as May LJ makes clear in Poppleton v Trusties of Portsmouth Youth Activities Committees [2008] EWCA Civ 646 [2009] PIQR 1, a case on which the Defendant’s placed considerable reliance given its close factual similarities to the instant case, necessarily involved a consideration of whether the risks were inherent and obvious. That is a question that I have to answer on the basis of the evidence I have heard.[28]To my mind, as I sought to indicate in the course of argument, the risk of falling from the bouldering wall was plainly obvious and indeed conceded to be so by Miss Maylin herself during the course of her evidence. Moreover, as it seems to me, and notwithstanding the Claimant’s evidence as to her perception that the existence of the matting would break her fall and therefore prevent any injury, it is equally plain that no amount of matting could absolutely avoid the risk of even serious injury from an awkward fall and the possibly of such an awkward fall is an obvious and inherent risk of climbing up a bouldering wall.[29]There being, in my judgment, inherent and obvious risks in the activity which Miss Maylin was embarked upon, the law, as May LJ makes clear in Poppleton, does not require the Defendant to train, supervise or warn and again, as is made clear in Poppleton, it makes no difference that the Defendant charged Miss Maylin to use the bouldering wall and, as it seems to me, that the claim fails on that ground.[30]Even if I am wrong about that, this claim would also fail because the Defendant did in fact, in my judgment, take sufficient steps to draw Miss Maylin’s attention to the risks inherent in climbing and in particular the risk that the presence of matting would not prevent injury in all cases.[31]In the first place, the Participation Statement at the top of the Disclaimer, which, on any view, that the Claimant accepted that she had read, makes it plain that climbing is an activity with a danger of personal injury or death. Moreover as Miss Dabbs made clear in her evidence, which was not seriously challenged, and which I accept, there were at least two notices warning users of the bouldering wall that matting did not make it any safer and at least one notice that spelt out that broken or sprained limbs are common. These were located on both sides of the entrance to the bouldering area and were there to be seen, whether or not the Claimant in fact read them. The mere fact that the Defendant could have done more by perhaps having a receptionist spell out the risks verbally or by handing out a photocopy of the notice warning of the risks and that the mat did not make it any safer is nothing to the point if the steps which were taken were themselves sufficient, as I find they were.[32]In the circumstances there is no need for me to go on to consider the alternative argument based on the doctrine of Volenti nor does the question of contributory negligence arise.

Disposal

[33]For the reasons set out above I would dismiss this claim.[34]I trust that the parties will be able to agree the form of an order which reflects the substance of this judgment.[35]Finally, I would like to take this opportunity to thank both counsel for their assistance in this case.