Armed forces - Employment - Health and safety at work - Negligence

Robert Lee Uren v (1) Corporate Leisure (UK) Ltd (2) Ministry Of Defence: CA (Civ Div) (Lady Justice Smith, Lords Justices Aikens, Pitchford): 2 February 2011

The appellant (U) appealed against a decision ([2010] EWHC 46 (QB), [2010] NPC 7) dismissing his personal injury claim and the second respondent employer (MoD) cross-appealed.

U was a senior aircraftman in the RAF. He took part in a health and fun day at the RAF base where he was stationed. He participated in a team relay race which involved retrieving objects from an inflatable pool installed on a grass playing field and filled with water to a depth of about 18 inches.

The first respondent (C) was an events company which had supplied equipment, including the pool, and personnel for a series of games. The sides of the pool were approximately cylindrical and about a metre high. U took part in the second heat of the game. He entered the pool head first and struck his head on the base of the pool breaking his neck. Staff employed by C gave instructions and supervised the operation of the game.

No instruction was given that participants should not go into the pool head first. U claimed that C and the MoD had failed to carry out adequate risk assessments and that if proper risk assessments had been carried out the participants would have been forbidden to enter the pool head first.

The judge held that the risk assessments were inadequate and that the MoD could not delegate risk assessment to C. However, he went on to hold that, on the evidence, the game was reasonably safe even when participants entered the pool head first. U appealed and the MoD appealed against the judge’s holding that its risk assessment was inadequate and that it was not entitled to rely on C to conduct the risk assessment.

Held: (1) The judge’s conclusion that the game as played carried only a very small risk of serious injury was untenable. First, he had not carried out a sufficient analysis of the conflicting opinions of the experts. Second, he was wrong to disregard the impressions of eyewitnesses about the safety of the game.

Third, the judge had not made it clear why he regarded certain statistics quoted by C’s expert as important or for what purpose he intended to rely on them. It could not be said that the judge’s decision was wrong, but nor could it be said that it was sound.

The judge had held that there was a risk of serious injury in the game as played, but because the risk was very small and because the game as played had some social value, the respondents were not in breach of duty in allowing it to be played.

The judge did not make an error of approach in balancing the level of risk against the social benefits of the activity. However, since his conclusion on the degree of risk was unsound, the balancing exercise was affected and the final conclusion had to be set aside.

The appeal was allowed and the case remitted for retrial (see paragraphs 68-69 of judgment). (2) The duty to undertake a risk assessment was closely related to the common law duties of the employer and the judge was right to hold that it was non-delegable.

If an employer used a contractor for some activity and satisfied himself that the contractor had carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer was suitable and sufficient even though it was not as detailed as would otherwise be required.

That would be a question of fact in each individual case and it was impossible to generalise as to the standard of risk assessment which would be required of an employer. In the instant case, on the facts, it was clear that C did not carry out a suitable or sufficient risk assessment and it could not sensibly be argued that the MoD could properly rely on it. The cross-appeal was dismissed (paragraphs 70-72).

Appeal allowed, cross-appeal dismissed.

Geoffrey Nice QC, Matthew Stockwell (instructed by Stewarts Law ) for the appellant; Richard Lynagh QC, Shaun Ferris (instructed by John A Neil) for the first respondent; Derek Sweeting QC, Keith Morton (instructed by Treasury Solicitor) for the second respondent.