Delegating the non delegable
Casualty Aware 2
The statement, ‘an employers’ duty of care to its employees is non delegable,” is a fundamental principle of employers’ liability.
Just how far this duty stretches has recently been reinforced in the case of Uren v Corporate Leisure (UK) Ltd and Ministry of Defence (MOD) - the judgment of which was handed down in February 2013.
The use of team-building events, usually organised by external providers, is widespread in both the private and public sector, with the events often involving physical challenges. Having satisfied themselves that the company providing the event has the necessary skill and expertise, can the employer avoid liability if something goes wrong at the event?
The claimant was severely injured in July 2006 whilst participating in an ‘It’s a Knockout’ style fun day arranged by his employers, the MOD. They had contracted with the first defendant, a company that specialised in managing and providing equipment for corporate entertainment events. The game, which was part of a competitive relay, involved climbing into an inflatable rectangular pool to retrieve plastic fruit from a shallow depth of water. The claimant took part in the second heat of the pool games and had already observed other participants entering headfirst into the pool. When the claimant followed suit he struck his head on the bottom of the pool injuring his spinal cord and leaving him tetraplegic.
At the first instance trial in 2009 both defendants successfully argued that is was reasonably safe to enter the pool head first, and to forbid such entry removed much of the enjoyment from the game. The claimant appealed and the Court of Appeal directed a retrial limited to two issues:
a) What was the degree of risk of serious injury?
b) Was that degree of risk acceptable in light of the social value of the game?
In a very detailed 71 page judgment Mr Justice Foskett held that there was a risk of serious injury which ought to have been foreseen.
Both defendants had risk assessed the event but the assessments were described as fatally flawed with neither defendant having given consideration to the risk of headfirst entry. The MOD assessment was carried out without any understanding of how the game was played or any attempt to find out.
Instead, the MOD left it to Corporate Leisure to advise them of any particular risks arising from the game.
The court accepted that games and events such as these undoubtedly have great social value and that these benefits are enhanced in a ‘services’ setting where on an ordinary daily basis, rank and discipline count for a great deal. It was accepted that headfirst entry added an extra dimension of challenge to the game, but witness evidence confirmed that much of the fun arose from watching people endeavouring to clamber over the wet, slippery and bouncy side of the pool. The absence of headfirst entry would not have diminished the enjoyment or social value of the game.
The claimant’s appeal succeeded on the basis that a risk assessment would have identified the risk of serious injury and the simplest and cheapest way to reduce the risk would have been to prohibit headfirst entry. Whilst the MOD was probably better placed than most to be able to adequately assess risk, this judgment raises issues relevant to all employers:
- As the duty of care is non-delegable, relying solely on the skill of the event management company is unlikely to be sufficient to discharge the duty
- Employers have a duty to risk assess the safety of events and should be slow to rely upon the assessment of an organising party
- Ensure that you know what’s involved in the activities and don’t settle for a vague outline from the organiser. In this case the MOD was criticised for not having an understanding of what the game involved
- Consider the risk associated with a particular activity: ask an expert in the particular field if in doubt
- Document risk assessments in sufficient detail to show that all risks have been considered