Successful defence of playground injury claim is a good sign for local authorities

Clyde & Co are pleased to report the successful defence of a claim against Maidstone Council after a student sustained a serious injury in a zip-wire accident.

The County Court dismissed the claim against Maidstone Council, and this outcome will provide reassurance to those local authorities responsible for the maintenance of playground equipment.

Background

The accident occurred when the Claimant (then an A-level student aged 17) decided to take a ride on a zip-wire located within a children’s play area. The Claimant described being given “quite a firm push” by her friend. As the Claimant reached the end of the line and encountered the spring-stop her seat rotated upwards, she lost her grip on the pole and then fell to the ground. As a result of the accident, the Claimant fractured her back in four places, but fortunately made a good recovery.

The precise accident circumstances were uncertain. Footage recorded by the Claimant's friend on a mobile phone of the seconds immediately before the accident was available, but for reasons which were not entirely clear, this footage was modified shortly after the accident.

Proceedings

The Claimant contended that the sequence of events could be attributed to negligence on the part of the Council, and brought a claim under the Occupiers' Liability Act 1957 and/or in negligence.

The Claimant's pleaded case was that the Council:

• Failed to risk assess the ride and/or the risk that teenagers would use it and push one another along when doing so.
• Permitted an inadequate stopping mechanism to be utilised because the spring stop wasn’t longer than a metre in length.
• Failed to warn the Claimant that she might not come to a safe halt if travelling too quickly.
• Failed to secure the Claimant to the seat so that she could not fall off.

We argued that the limited footage available suggested that the Claimant was pushed sufficiently hard to be traveling at speed even as she started to climb the final upwards section of the zip-wire and that she was clearly not ‘self-propelled.’

Furthermore, we obtained evidence from liability experts who confirmed that the British Standards ("the Standards") applicable to the zip-line was BS EN 1176-4 and the manufacturer placed a sign on equipment denoting its compliance.

From a liability standpoint:

• Neither expert identified anything within the Standards which specifically requires a risk assessment to be conducted; the Occupiers' Liability Act 1957 does not either. Furthermore, this was not an employer’s liability case where statutory Regulations impose a specific duty to perform such an assessment.
• Both experts agreed that the inspection regime devised by the Council and the insurer (weekly, monthly and annual inspections) was a reasonable one.
• The allegation that the stopping mechanism should have been longer was weak. The Standards do not contain any specific requirement as to the length of the stop spring, merely the maximum permitted speed and the angle that should not be exceeded at the stop. The Council was reasonably entitled to rely on the manufacturer’s statement that the zip-line was compliant with the Standards.
• There was no reasonable requirement for the Defendant to warn the Claimant in relation to use of the zip-wire or to stop her using the same and that there is robust authority to the effect that individuals are expected to accept the obvious risks associated with outdoor leisure activities that they freely chose to undertake: the speech of Lord Hoffman in Tomlinson v Congleton Borough Council [2003] UKHL 47.
• The allegation that the Claimant should have been able to secure herself to the seat (e.g. by means of a harness or strap) is inconsistent with the contents of the Standards.

We were confident in our defence on the claim based on the above, and proceeded to a final hearing.

Outcome

The Claimant's case was dismissed in its entirety.

What can we learn?

• The case gives comfort to local authorities responsible for playground equipment throughout England and Wales, particularly in respect of the issue of signage.
• The decision will also provide reassurance and a further example of a detailed inspection system being reasonable enough to discharge the duty under the Occupiers' Liability Act.
• The early engagement of an expert to provide engineering evidence was of great assistance in advancing a strong initial defence of the claim.

• This decision is consistent with previous findings relating to the Occupiers’ Liability Act, where adult visitors were found not to require warnings of obvious risks, and decisions that “not every accident (even if it has serious consequences) has to have been the fault of another".

The claim was handled by Paul Smith of Clyde & Co LLP, Casualty, London. Matthew Boyle of Crown Office Chambers provided representation at Court.