Can there still be liability in dangerous situations?January 28, 2019
Victoria Oliver, Associate in our Spinal Injury team, writes about personal injury claims.
One thing I have learned from 12 years in the personal injury field is that serious injuries can result from the most simple scenarios. A minor pavement trip resulting in a tetraplegic injury. A morning walk resulting in a brain injury. There are of course activities which are, statistically, more dangerous than others and winter sports such as bobsleigh and ski jump fall into that category. So perhaps it wasn’t surprising when Beth Tweddle sustained serious spinal injuries whilst taking part in the Channel 4 show ‘The Jump’ in 2016. A show in which “Celebrities take on some of the most challenging and dangerous winter sports as they bid to be crowned champion of The Jump”.
Ms Tweddle’s injuries consisted of two fractured vertebrae which necessitated surgery on her spinal cord. Significant and traumatising injuries that will most likely have an ongoing impact on Ms Tweddle’s day to day life for many years to come and will have certainly impacted her gymnastics.
Read the comments under the various press articles surrounding Ms Tweddle’s decision to issue court proceedings against the production company and you can see a trend of public incredulity that someone should take part in a dangerous activity, presumably one covered by multiple contracts and waivers and be able to sue.
Can you sue despite signing a waiver?
Well the reality is that you can; because under English law you can’t exclude liability for death or personal injury caused by negligence. And that is a good thing because people make mistakes; sometimes intentionally but more often unintentionally (“human error”) and sometimes this leads to devastating consequences. The fact that the activity was dangerous in the first place shouldn’t preclude someone from taking legal action if they are subsequently hurt in unforeseeable circumstances.
Take for example football players of any age and level. Players taking part in a football match know there is a risk of injury but does that mean that you should accept the consequences of another player undertaking such a careless tackle that it breaks your leg and ends your career or enjoyment of the game?
Or imagine taking part in a track day at an eminent race track. You know there are risks inherent with racing but does that mean your family should accept the consequences when you are killed because the crash barriers were not suitable?
The examples above come from real life cases[i] where the Claimants were successful in showing that whilst the activity they were taking part in carried significant risks, the fact that they were injured as a result of the Defendants failing to take sufficient care meant that they had valid claims.
I am passionate about the area of law I practice which, as a general rule, does not seek to pigeon hole each and every set of circumstance and instead seeks to ask three straightforward questions:
- Was there a duty owed?
- Was that duty breached?
- Was there damage as a result of that breach?
Treating each case individually
After that, each case must be judged on its own facts and its own merits. So whilst the Claimants in the above cases succeeded, the Claimant who dived into a shallow pool in an unauthorised swimming area with clear warning signs failed in his claim for his injuries. Similarly, the inexperienced indoor rock climber who attempted to imitate other climbers and fell badly, also failed.
I haven’t seen the Particulars of Claim in Beth Tweddle’s case so I cannot comment on the specifics of her claim but if it transpires that something did go wrong, that human error meant the barrier she collided with was placed incorrectly or she was given the wrong instructions then it is completely right that she has an opportunity to seek redress in the courts. I think the following quote sums it up quite nicely:
“Games might be and are the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which are instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein.”[ii]
Victoria Oliver is a solicitor and Associate in the Spinal Injuries team at Bolt Burdon Kemp. If you or a loved one have suffered a spinal injury as a result of result of an accident, someone else’s negligence or you are concerned about the treatment you have received contact Victoria in confidence on 020 8049 8030 or at VictoriaOliver@boltburdonkemp.co.uk. Alternatively, complete this form and one of the solicitors from the Spinal Injury team will contact you. Find out more about the Spinal Injury team.
[i] Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC (2008) & Wattleworth v Goodwood Racing Co Ltd
[ii] Cleghorn v Oldham  43 TLR 465