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News | Wed 13th Mar, 2019
Simon Brindle successfully represented a woman who was injured during a game of musical chairs that went badly wrong.
The Claimant owned a caravan at the Haven Leisure Rockley Park Resort near Pole in Dorset. One of the facilities offered by the owners of the site, Bourne Leisure, is an entertainment area called the Live Lounge. In broad terms, this is a stage with tables and chairs in front of it, served by a bar and a refreshment area. Acts would perform on the stage, and the turns were interspersed with age-appropriate games involving the audience. These games were run by the Defendant’s version of a Red Coat, Funstars. One such game was a game of musical chairs, during which the Claimant was badly injured.
The game was not run as a traditional game of musical chairs. Instead of removing a chair whilst the contestants circulated around them, the Funstar would issue instructions to the participants to go into the audience and return with a specific item. Whilst the participants were doing so, one of the chairs was removed and, so, the last participant back was eliminated. The Claimant did quite well and was one of the last three participants left. The round to determine which of the three was eliminated began with the Funstar instructing the participants to go into the audience and obtain a size 7 shoe.
A dispute around between the Claimant and another participant as to who returned first. The Funstar decided to hold a tie-break. He sent the Claimant up one aisle and the other participant up another, at opposite ends of the room, and told them that the first one back to the chair was the winner. As the pair raced back to the chair, the other participant tripped or stumbled and collided into the Claimant, very severely injuring her knee.
The matter proceeded by way of a split trial on liability before His Honour Judge Hughes QC, sitting in the Winchester County Court at the beginning of February 2019.
The Defendant disputed liability on the basis that: the Claimant was involved in a light-hearted game, which involved no real, reasonably foreseeable risk of injury; that, in any event, the Claimant consented to any risk and so was Volenti; and, moreover, the accident was caused not by any negligence on its part, but by reason of the man tripping or stumbling. There was also a dispute as to whether or not the Funstar had told the Claimant and the other participant to run to the chair or not. The Defendant’s case was that the Funstar had made regular announcements that running was not permitted.
The Claimant’s case was that the Funstar was, in essence, a referee. It was his role to enforce the rules and ensure that the game was played in a safe manner. A race to a chair, with the participants on a potential collision course, involved a very real, and significant, risk of injury. It mattered not that this risk materialised because the man tripped or stumbled. Moreover, it could not be said that the Claimant consented to the risks, sufficient to absolve the Defendant of any liability to her, in circumstances where she had agreed to participate in a game of musical chairs that was converted into a race. The argument that the Funstar was a referee was aimed at making the scope of the duty owed different to that of the other participant and, so, liability would not dependent upon the actions of that person.
The learned judge accepted that, whilst not an exact analogy, comparing the duty owed by a referee with the duty owed by the Funstar was helpful. He then went on to consider the helpful guidance as to the scope of the duty of care owed by someone acting as a referee in the Court of Appeal case of Smoldon v Whitworth (unreported 17th December 1996) – a case involving a claim made against a rugby referee for injury sustained in a collapsed scrummage. In that case, Lord Bingham LCJ held:
“The level of care required is that which is appropriate in all the circumstances and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed”
The judge held that the tie-break was not a ‘fast moving and vigorous contest’, but a light-hearted fun event that was intended for the enjoyment of the participants and the audience.
When considering whether the Claimant was Volenti the learned judge considered Smolden again. In rejecting the argument, the learned judge quoted Lord Bingham LCJ again:
“…The plaintiff had, of course, consented to the ordinary incidents of a game of rugby football of the kind in which he was taking part. Given, however, that the rules are framed for the protection of him and other players in the same position, he cannot possibly be said to have consented to a breach of duty on the part of the official whose duty it was to apply the rules and ensure so far as possible that they were observed.”
The learned judge concluded that the tie-break race should never have been attempted at all. It was plainly dangerous and likely to result in any accident. The breach of duty caused the Claimant’s accident and her injuries. The Claimant was not Volenti.
The Claimant made two liability only Part 36 Offers, both of which she bettered. Pursuant to CPR 36.17(4)(b) the Defendant was ordered to pay her costs of liability up until the last day of acceptance of the first offer on the standard basis, and on the indemnity thereafter. She was also awarded interest at 4.75% on those indemnity costs until they were paid. The learned judge put off consideration of the other Part 36 Consequences contained in CPR 36.17 – interest on damages, indemnity costs and the ‘additional amount’ under CPR 36.17(4) – until the conclusion of the claim.
The Defendant has indicated an intention to appeal the decision. Subject to that, the case now continues on quantum.
Simon was instructed by Julia Prior of Blake Morgan LLP, Southampton.