Everatt

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Everatt Company Solicitors
ALARM West Midlands Regional Event 13th May
2009 Drayton Manor Theme Park.
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Everatt Co.

• Everatt Company Solicitors specialist
  Defendant Litigation Solicitors
• Listed in Legal 500 / Chambers
• Affiliated with ALARM and BALPPA

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Health and safety fears halt pancake race Tue
Feb 05 2008

• Six hundred years of tradition have been tossed
  aside as organisers
• cancelled a pancake race in Yorkshire.

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• Friday, 8 December, 2000, 0629 GMT
• Conkers hit by legal fears
• Schools are banning time-honoured playtime
  pastimes such as conkers because headteachers are
  afraid of being sued by parents in the event of
  an accident.

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• Parish council's bouncy castle ban
• Bouncy castles have been banned from a village's
  
• playing fields after a local authority decided
  they were
• too dangerous.
•  
• By Tom Peterkin Last Updated 103AM BST 21 Jun
  2008
• Parish councillors feared they could be held
  personally liable
• if a youngster has an accident on the popular
  inflatable toys.

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• G-Force at Drayton Manor.

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• Maelstrom at Drayton Manor.

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Inflatable art!
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Relevant Liabilities

• Criminal
• Civil

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Corporate Manslaughter

• Corporate Manslaughter and Corporate Homicide Act
  2007.
• Effectively creates the new criminal offence of
  corporate manslaughter (corporate homicide in
  Scotland).
• Came into effect 6th April 2008.

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Corporate Manslaughter

• The elements of the new offence are
• The organisation must owe a relevant duty of care
  to the victim.
• The organisation must be in breach of that duty
  of care as a result of the way in which the
  activities of the organisation were managed or
  organised.
• The way in which the organisations activities
  were managed or organised must have caused the
  victims death. An organisation cannot be
  convicted of the offence unless a substantial
  element of the breach lies in the way the senior
  management of the organisation managed or
  organised its activities.
• iv. The management failure (i.e. the way in which
  the organisation activities were managed or
  organised) must amount to a gross breach of the
  duty of care.

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Corporate Manslaughter

• Key Definitions
• ORGANISATION any body corporate, whether
  incorporated in the United Kingdom or elsewhere,
  including companies incorporated under companies
  legislation as well as bodies incorporated under
  statue or by Royal charter.
• DUTY OF CARE the duty owed at common law
  covering employees or other persons working for
  the organisation visitors to a premises where
  the organisation is of occupier of the same, the
  persons effected by the constructional
  maintenance of buildings, infrastructure or
  vehicles or the use of plant or vehicles etc.
  Those effected by other activities on a
  commercial basis.

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Corporate Manslaughter

• Key Definitions / cont
• SENIOR MANAGEMENT those persons who play a
  significant role in the management of the whole
  or a substantial part of the organisations
  activities. This covers both those in the direct
  chain of management as well as those in, for
  example, strategic or regulatory compliance
  roles.
• GROSS BREACH where conduct is said to fall far
  below what could reasonably have been expected.

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Corporate Manslaughter

• Sentencing
• Unlimited fine - Likely fines envisaged to fall
  within a range of 2.5 - 10 of average annual
  turnover.
• Publicity Orders.
• Remedial Orders.

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Health and Safety (Offences) Act 2008

• Came into force 16th January 2009
• Raised maximum financial penalties in
  Magistrates Court from 5,000 to 20,000
• Range of offences for which employees and
  officers can be imprisoned broadened.
• Prison sentences increased.

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Balloon artist 'killed women'
Horror ... CCTV shot of collapsed Dreamspace
after it crashed to the ground
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Dreamspace facts

• Artist charged with manslaughter by gross
  negligence jury could not reach a verdict
  acquitted
• Artist guilty of health and safety offences
  fined 10,000
• Local Authority guilty of health and safety
  offences fined 20,000
• Workforce Agency guilty of health and safety
  offences fined 4,000

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Local Authority based attractions

• Principal duties owed
• s.2 Occupiers Liability Act 1957
• s.1 Occupiers Liability Act 1984

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• Local Authority based attractions
• Occupiers Liability Act 1957

• The duty to take such care as in all the
  circumstances of the case was reasonable to see
  that visitors are reasonably safe in using the
  premises to which they have been invited.
• This Act applies to lawful visitors.

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• Local Authority based attractions
• Occupiers Liability Act 1984

• Where the occupier is aware of a danger or has
  reasonable grounds to believe that it exists and
  knows or has reasonable grounds to believe that a
  trespasser may be in the vicinity / come in
  contact with the danger and the danger is one
  against which in all the circumstances, the
  occupier may reasonably be expected to offer the
  trespasser some protection then the occupier is
  under a duty to take such care as is reasonable
  in all the circumstances of the case to see that
  the trespasser does not suffer injury on the
  premises by reason of the danger concerned.
• This Act relates to unlawful visitors.

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• Lawful visitors

• Prezow v Bourne Leisure Ltd (17/06/2005 QB)
• The Claimant (aged 4) was being held by his
  mother when she lost her footing whilst
  descending the access steps to a carousel. The
  dimensions of the steps did not comply with the
  guidance issued by the HSE. Further, the steps
  were considered reasonably steep and the carousel
  itself was housed in a poorly lit shed.
• Held Claim successful. The Court concluded that
  the Defendants should have foreseen the
  possibility of parents having to hold small
  children whilst ascending / descending the steps
  in question and that the steps were clearly
  unsuitable for a class of lawful visitor having
  to proceed in that way.

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• Lawful visitors

• Hall v Holker Estate Co Ltd (17/12/2008 C.A.)
• The Claimant was struck on the head by a portable
  goal frame which tilted when he caught his foot
  in the netting whilst retrieving a ball.
• The goals would ordinarily have been pegged into
  position, but for some reason were not on the day
  of the accident. There was no evidence as to who
  had removed the pegging.
• Held Claim successful. On the basis that the
  Defendants considered it was necessary to peg the
  goals in the first place, the fact that the pegs
  were missing, prima facie, created a situation
  where the goals could reasonably be described as
  being unsafe. The Defendants ought to have
  implemented a system of daily inspection of the
  goals and had such an inspection system been
  implemented, the lack of pegs would, on the
  balance of probability have been detected and
  rectified.

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• Lawful visitors

• Poppleton v Trustees of Portsmouth YAC
  (12/06/2008 C.A.)
• The Claimant sustained injuries when he fell
  whilst engaged in simulated rock climbing at the
  Defendants indoor climbing premises.
• The Claimant contended that the matting was
  inadequate. Had he been advised that the matting
  would not guarantee to prevent injury if he fell,
  he would not have participated in the activity he
  was doing.
• Held Claim dismissed. The Claimant engaged in
  the activity of his own free will and the risk of
  falling was plainly obvious. Further, it was
  obvious that no amount of matting would avoid the
  possibility of injury being sustained from an
  awkward fall. The Claimant undertook the activity
  voluntarily and the law did not require the
  Defendants to either prevent him from engaging in
  the activity or to train him or to supervise him
  whilst he did it.

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• Lawful visitors

• Perry and Perry v Samuel Harris (a minor)
  (31/12/2008 C.A.)
• The Claimant (aged 11) was playing on a bouncy
  castle. Whilst playing on the bouncy castle, the
  Claimant had been struck on the head by the heel
  of a much taller and older boy who was performing
  a somersault at the time.
• The Claimant contended that the Defendants should
  not have permitted the older boy to be on the
  bouncy castle at the same time as the Claimant
  and / or to have permitted him to attempt a
  somersault.
• Held Claim dismissed. It was impossible to
  preclude all risk that when playing together
  children might injure themselves or others. It
  is quite impracticable for parents to keep
  children under constant supervision and it would
  not be in the public interest for the law to
  impose such a duty upon them to do so. The
  standard of care required in the circumstances
  was that which a reasonably careful parent would
  have shown for their own children.

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• Unlawful visitors

• Tomlinson v Congleton BC (31/07/2003 H.L.)
• The Claimant sustained severe injuries when he
  dived into a lake, striking his head on the lake
  bottom.
• Despite there being notices posted stating
  Dangerous water no swimming it was known that
  the lake was a popular place for people to swim.
  The Defendants were well aware of the potential
  dangers and previous accidents had occurred.
• Held Claim dismissed. The Claimant was not
  invited onto the land and was therefore an
  unlawful visitor. The risk of the Claimant
  striking his head on the bottom of the lake was
  one arising from a natural feature of the lake,
  characteristics of which were or should have been
  obvious to the Claimant and did not require
  specific warning. The risk of striking the bottom
  of the lake from diving in what the Claimant knew
  to be shallow water was not a danger against
  which the Defendants might reasonably have been
  expected to have warned the Claimant.

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• Unlawful visitors

• Baldacchino v West Wittering Estate PLC
  (19/12/2008 Q.B.)
• The Claimant, a schoolboy, sustained injury when
  he climbed a navigation beacon (whilst on a trip
  to the beach) and dived into the sea.
• The Claimant contended that the Defendants were
  liable for failing to properly supervise him
  and/or warn him of the danger.
• Held Claim dismissed. Whilst the Claimant was a
  lawful visitor to the beach, he was an unlawful
  visitor for the purposes of climbing onto the
  navigation beacon. The risk of injury in this
  case resulted from jumping at an awkward angle
  into water that was too shallow. The Claimant did
  not adjust his diving technique to allow for the
  depth of the water nor did he check the depth of
  the water. The dive was hazardous was because the
  water was too shallow for the dive to be executed
  safety. Any notice proclaiming that risk would
  have been regarded as totally obvious.

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• Third party attractions on Local Authority land.

• It is important to remember that even though
  activities may be undertaken by third parties,
  (not under the direct supervision of the local
  authority), the local authority remains an
  occupier of the land and can potentially be
  liable for injuries sustained by visitors to the
  attractions.

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• Third party attractions.

• Gwilliam v West Hertfordshire Hospital NHS Trust
  (27/04/2002 C.A.)
• The Defendants contracted with a third party to
  supply and operate a splat wall on the
  Defendants premises. The Claimant sustained
  injury because the equipment had been
  negligently set up.
• The Claimant settled against the contractors for
  a nominal sum of 5000 on the basis that the
  contractors did not have in place Public
  Liability insurance and would thus be unable to
  meet any substantial financial judgement. The
  Claimant pursued his claim against the Defendants
  on the basis that they were co-occupiers at the
  time of the accident.
• Held Claim upheld. The Defendants remained the
  occupier of the land and thus owed the Claimant
  the common duty of care pursuant to s.2(1) of the
  1957 Act.
• cont

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• Gwilliam v West Hertfordshire Hospital NHS Trust
  cont
• When engaging contractors, the Trust had a duty
  to satisfy itself that the contractor was
  competent and reliable enough to be entrusted to
  ensure the safety of members of the public
  reasonably using the equipment. It would be
  reasonable to assume that a competent contractor
  would have in place appropriate insurance and the
  Defendants failure to detect this omission meant
  that their investigations into the suitability of
  the contractor were inadequate.