Stemming the compensation tide

Almost every week, the media regale us with another example of an activity being curtailed or cancelled, usually because no insurer will cover what they perceive as a risk carrying the danger of a claim for compensation, should any participant in the event be injured. Often these are activities, such as school events or village traditions, which have been carried on and enjoyed over many years, sometimes centuries.

In 2005, following considerable press speculation that we now live in a 'compensation culture', where every injury must be somebody's fault and give rise to a right to compensation, the government introduced the Compensation Bill, which duly became the Compensation Act 2006 and is now in force. Section 1 of the Act says:

'A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might:

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.'

In the committee stages of the bill, many commentators, and most of the judiciary, argued that the proposed s.1 (which was substantially in the same terms as the enactment) added nothing to the tests already to be applied by judges when considering any claim alleging negligence, namely (1) is there a duty of care?, (2) if there is, has there been a breach of that duty?, and (3) if so, has the claimant suffered damage as a result of the breach? However, the government considered it important to remind judges specifically to consider how their finding might impact on desirable activities.

Since the Compensation Act became law in 2006, defendants regularly include reference to s.1 in seeking to persuade the judge that a finding against the defendant is likely to curtail a desirable activity, and so, even though most judges would consider that it was always a factor in their deliberations, the judgment will have to make specific reference to the Act.

Every day, all over the country, judges are dealing with personal injury claims, large and small, where the claimant is alleging negligence against the defendant, and the defendant is denying negligence and also invoking s.1 of the Compensation Act. Most of these contested cases go unreported, but there have been two interesting decisions recently which highlight the difficult decisions that can face judges. Both were cases of significant value.

In Harris v Perry [2008] EWHC 990 (QB), a first instance decision by a High Court judge, the claimant, who was aged 11 at the time of the incident, suffered severe brain damage when he was kicked by another boy while on a bouncy castle. The claimant had been having football training on a public playing field, and the bouncy castle had been placed on the same field by the first and second defendants, who had hired the castle as one of the attractions for their children's birthday party. The judge found that it was probable that the claimant had been given permission to go on the castle, and thus the defendants did owe him a duty of care. They had been in breach of that duty because they had failed to exercise adequate supervision, and the absence of supervision was causative of the accident. The risks of a damaging collision were enhanced by allowing children of different sizes to go on the castle at the same time.

This decision was met with some dismay by sections of the press, who saw it as likely to deter parents from taking on the responsibility of offering activities generally regarded as fun, and as feeding the belief that a compensation culture exists.

The judge in Harris gave permission to appeal, and the Court of Appeal ([2008] EWCA Civ 907) has now overturned the judge's decision, holding that it was

impossible to preclude all risk that, when playing together, children might injure themselves or each other, and that it was quite impractical for parents to keep children under constant supervision and it would not be in the public interest for the law to impose a duty upon them to do so.

Another case which has recently been the subject of an appeal is Trustees of the Portsmouth Youth Activities Committee v Poppleton (CA) [2008] EWCA Civ 646.

In this case, the claimant fell from a climbing wall in 2002, when he was aged 26. He landed head-first on some matting, and sustained paralysis. He sued the operators of the climbing wall in negligence. At the High Court trial in July 2007, the claimant was found to be 75 per cent responsible for his own injuries, but the centre was found 25 per cent responsible for breaching its duty of care to the claimant by failing to warn him that the matting did not provide complete protection against injury.

The Court of Appeal, in a robust judgment, has now ruled that the claimant was wholly responsible, and is not entitled to any compensation. Lord Justice May said: 'Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured. It is to my mind quite obvious that no amount of matting will avoid absolutely the risk of possibly severe injury from an awkward fall.'

It must be right that adults who undertake activities which are inherently risky will find it harder to persuade courts that they are entitled to compensation when things go wrong. The responsibility on those providing risky activities for children is a heavier one, but the law will not normally regard it as in the public interest to expect children to be under constant supervision.

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