Court success: zipwire injury claim dismissed
BackgroundThis case centred on an accident which occurred when the claimant, then aged 17, was using a zipwire located in a children’s play area run by Maidstone Borough Council.
The court heard the claimant was given “quite a firm push” by a friend at the start of the ride. As she reached the spring-stop at the end of the line, her seat rotated upwards, and she lost her grip and fell to the ground, fracturing her back in four places.
The claimant, who subsequently made a good recovery, contended the accident could be attributed to negligence on the part of the council.
The exact circumstances of the accident were unclear. Although there was mobile phone footage, recorded by the friend, which showed the seconds immediately before the accident, for reasons which were not entirely clear, this footage was modified shortly after the accident.
The defendant argued that the limited footage available suggested the claimant was pushed sufficiently hard to be travelling at speed, even as she started to climb the final upwards section of the zipwire, and that she was clearly not ‘self-propelled.’
The claim was brought under the Occupiers’ Liability Act 1957 and/or in negligence.
The defence was that the council did not manufacture the zipwire and that it was an Occupiers’ Liability Act case. As such, the council’s duty was to take reasonable steps to ensure the claimant was safe in visiting the park, and that it did not have a duty to achieve perfection or absolute safety. Both parties sought expert engineering evidence, and the experts attended trial to give oral evidence.
The claimant’s pleaded case was that the council had:
• Failed to risk assess the ride and/or the risk that teenagers would use it and push one another along
• Permitted an inadequate stopping mechanism to be used, because the spring-stop was less than one-metre long
• Failed to warn the claimant she might not come to a safe halt if travelling too quickly
• Failed to provide a means for the claimant to secure herself to the seat so that she could not fall off
The defendant’s case was that:
• The manufacturer had placed a sign on the zipwire confirming its compliance with the applicable British Standard – BS EN 1176-4.
• There is nothing within that standard, or the Occupiers’ Liability Act, which specifically requires a risk assessment to be conducted. Furthermore, this was not an employer’s liability case where statutory regulations impose a specific duty to perform such an assessment.
• Both experts agreed the inspection regime devised by the council and its insurer (weekly, monthly and annual inspections) was a reasonable one.
• The allegation that the stopping mechanism should have been longer was weak. BS EN 1176-4 does not contain any specific requirement as to the length of the spring-stop, 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 zipwire complied with the applicable standard.
• There was no reasonable requirement for the council to warn the claimant about how to use the zipwire or to stop her using it. In addition, 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  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 BS EN 1176-4.
The case was heard at Canterbury County Court and the claimant’s case was dismissed in its entirety.
This case gives comfort to local authorities responsible for playground equipment throughout England and Wales, particularly in respect of the issue of signage.
It is a good example of a case where a detailed inspection system is reasonable enough to discharge the duty under the Occupiers’ Liability Act.
It also demonstrated how early engagement of expert engineering evidence can assist in defending such claims.
The claim was handled by Richard Pickles at Zurich Insurance Company, Paul Smith of Clyde & Co LLP, Casualty, London. Matthew Boyle of Crown Office Chambers provided representation at court.