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Keoghs Insight

We keep you up-to-date on emerging market issues and their impact on the insurance sector, through a variety of publications, events and our leading market initiatives.

Author

Lucy Walker

Lucy Walker

Partner

T: 01204 677006

Jumping for joy?

Blogs||24/04/2017

As a mum of 2 young children who absolutely love garden trampolines, the recent explosion of trampoline parks in almost every industrial estate in the country is both a god send (a rainy day saviour of sanity) and as an insurance liability lawyer, my worst nightmare.

My first trampoline park experience (identity and location shall remain nameless!) turned out to be an unexpected assault on the senses. I walked into a huge industrial building with my two over-excited children with great expectation – to find it fitted wall to wall with trampolines, even the walls were partially covered. The noise of children and pop music was deafening. What struck me immediately was the volume of children, teenagers and adults bounding around with wild abandon, seemingly without check or measure.

After parting with about £9 per child they were subjected to a short video briefing (on a loop in a communal area) involving a ‘stick man’ bouncing on a trampoline correctly and subsequently snapping his leg by jumping and landing incorrectly. This upset one child and intrigued the other.

Next came the “disclaimer” form which was something to behold; an A4 page full of old fashioned legalese in tiny type containing words not seen or heard for over 20 years, since my university days. A quick ‘speed read’ of the disclaimer left me none the wiser. The implications were that if the terminology of this disclaimer meant nothing to even an experienced liability lawyer; this was likely to mean even less to those unversed in legal language and terminology!

A line through the disclaimer and a handwritten comment I had included at the bottom “I expect you to keep my child reasonably safe” went unnoticed by the 15 year old girl collecting the forms. I did wonder whether the trampoline park had ever heard of the Unfair Contract Terms Act and whether they knew their disclaimer probably wasn’t worth the paper it was written on.

After one hour of heart palpitations and “losing sight” of the children several times in the mass of bouncing bodies, I am pleased to say they exited safely with all bones intact, albeit my nerves were completely shredded.

The impact of ever-increasing visitor numbers

So what of this experience? Only 37 parks existed in the UK in November 2015. This grew to 110 parks 12 months later and at Easter 2017, the IATP (International Association of Trampoline Parks) estimated that 150 parks would be in operation across the UK, with at least 15 million visitors per year. It therefore comes as absolutely no surprise that ambulance services have recorded increasing call outs to trampoline parks for a variety of injuries - commonly broken legs but also head, serious spine, back and foot injuries. It will be equally unsurprising to note that the number of claims arising from visitors to these parks is also on the increase. Of particular concern are the numbers of serious injuries reported from those using ‘foam pit’ type jumps, often from significant heights.

Implications for liability claims

Most of these injury claims will of course be minor but inevitably some will involve life changing injuries. With the vast majority of visitors to trampoline parks under the age of 16 - and with the recent changes in the discount rate - companies insuring these parks will need to be prepared for some particularly expensive claims landing on their books. Trampoline parks should also be aware and check the limitation of their public liability cover as these significant claims may considerably exceed their policy indemnity - leaving them with significant cost implications too.

Operators insist that the number of injuries is very small relative to the total number of users with accidents reportedly around 1 in every 100. But if visitors do top 15m as the IATP suggest, this could be as many as 150,000 accidents, and therefore potential claims!

Improvements to Safety Standards

The British Standards Institution has now published its first set of standards for trampoline parks. The new Trampoline Safety Standards (issued only in March this year) have been welcomed and provide publically available guidance on what standards should be expected for the construction of fixed indoor trampoline parks, as well as the day-to-day park operating and maintenance requirements. As of August 2017, any trampoline park will need to comply with the BSI standards to join the IATP. So potential visitors are advised to check for an IATP sticker on the door of any trampoline park before they enter.

Essentially the standards introduce the following requirements, highlighting the things that people should look out for when choosing a trampoline park to visit:

Risk versus benefit

It must follow that the social benefit of encouraging our children to engage more in physical exercise outweighs the risks involved in trampolining - as long as those risks are appropriately managed. But with the lack of cases before the court, we just don’t know how liberally the court will apply the Compensation Act 2006 and the concept of balancing social desirability with the minimisation of risk.

It may help temper certain claims when the court looks to weigh the precautions available to minimise the risk of trampolining, against those that might actually stop or deter a desirable activity from being undertaken. Whatever the court’s approach is likely to be, they will need to be conscious not to deter this socially beneficial activity. But as always, it will be a question of fact, degree and judgement in each individual case that will determine it rather than the social desirability of the activity. So, how efficiently and conscientiously the parks can demonstrate they adhere to the new standards will be a key consideration for the courts.

Common sense and the application of the common law concept of what is reasonable must be the first port of call in considering these claims. Trampolining is inherently risky and it would be impossible to eradicate those risks. The BSI standards are at least a clear steer for the first time of what trampoline parks can and should be doing to ensure their visitors are reasonably safe, and will provide a valuable reference point to those assessing claims as to whether there is some likely culpability on the part of the park for injuries sustained whilst bounding around like a lunatic!