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Who's to blame?

Finance | Lindsay Gray | 22 Aug 2008

Lindsay Gray wonders if there is an end to compensation fear. 

A recent civil damages case brought against a charity for injury to a climber at an activity centre has found in favour of the charity. The case, Trustees of the Portsmouth Youth Activities v Poppleton, sends a signal loud and clear to charities everywhere that they needn’t fear the compensation culture.

This case clearly signals that the courts are taking a much more measured and reasona-ble approach to cases for compensation. Just because an accident has happened, it doesn’t mean someone is at fault and it also doesn’t mean that someone can automatically be sued for compensation. Most accidents just happen, and some people who are the victims of accidents only have themselves to blame.

The case featured a climber who fell from a climbing wall in an activity centre. He wasn’t an experienced climber, and was given no formal training before taking part in the activity. However, this wasn’t within the responsibilities of the climbing centre. They were, like many other centres, “providing suitable premises and equipment and leaving it up to those using them to do so sensibly, and without supervision”.

The climber attempted to leap from a climbing wall to hang onto a girder and injured himself in the process. This was quite obviously a dangerous thing to do and the court highlighted the fact that: “The claimant’s acts are taken to be the sole source of harm”. As a result it was found that the charity was not obliged to pay any compensation.

Of course every charity has a duty of care to those people it works with. Where vulnerable people are concerned the responsibility can be great. In contrast, other duties, such as in the case above, are clearly defined and quite easy to demonstrate that you have fulfilled them.

This, however, is the crucial point. It doesn’t matter how simple your duty of care is, if you haven’t taken notice of it you will be liable for any accident. Not attending to an uneven floor in an office doesn’t sound like a big issue, but if someone has an accident it will easily be proven that you were responsible.

Another case underlines the importance of this issue yet further. It involved an accident on a bouncy castle during which an older child struck a much younger child causing him severe head injuries. The bouncy castle hire company made it very clear in their terms and conditions that the hirers of the castle held a responsibility to supervise children. The hire company were only responsible for erecting it safely. It was the parents hiring the castle who needed to do the supervising.

In this case the courts found against the parents and required them to pay the injured child compensation. Fortunately, the parent’s household policy provided liability cover and paid the claim. This case illustrates that in some cases there is a clear fault. Someone has a responsibility to keep people safe and either neglects or ignores this. They therefore then need to be held accountable.

However, where a responsible adult is the injured party the law takes a different view. Lord Justice May explains that: “there was no duty to explain the obvious to a consenting adult” and “there is, or should be, a policy of letting adults take care of themselves”. The climber knew there was a risk, this was clear. It was the climber who didn’t take the dangers seriously, not the charity. The Latin phrase ‘volenti non fit injura’ (to a willing person no injury is done) explains this perfectly.The ruling goes on to explain another important issue for charities: risk versus reward.

Up until now you could be forgiven for feeling that society is discouraging charities from doing anything at all. This ruling is a statement of common sense. It acknowledges that accidents do happen, and some-times no-one is to blame.

If charities use risk management and record their actions, they can clearly dem-onstrate that they are acting responsibly. Simple, well-documented steps are the best way to prevent accidents happening, and the best defence against damages claims too.

We shouldn’t take this case as an encouragement to disregard simple health and safety and risk management practices. But charities should remember that the fear of accidents should never stand in the way of their activities.

Who's Who: Lindsay Gray