Andrew Risk v Rose Bruford College
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 06 December 2013 |
| Neutral Citation | [2013] EWHC 3869 (QB) |
| Docket Number | Case No: HQ12X02503 |
| Court | Queen's Bench Division |
| Date | 06 December 2013 |
[2013] EWHC 3869 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ12X02503
Michael Soole QC and Paul Dean (instructed by Blake Lapthorn Solicitors) for the Claimant
Ronald Walker QC (instructed by Plexus Law) for the Defendant
Hearing dates: 20 th, 21 st, 22 nd and 25 th November 2013
Introduction
At approximately 11:40am on Friday 26 th June 2009 the Claimant, who was born on 25 th April 1988 and was therefore 21 years of age at the material time, sustained an extremely serious neck injury as a result of striking his head against the junction of the side of an inflatable pool and the ground. More precisely, the Claimant fractured his C5 vertebral body and is now tetraplegic. This is the trial of the issue of liability only.
The Defendant, one of the UK's leading drama schools, is based at Lamorbey House, Sidcup, Kent. It was, and no doubt still is, a tradition at the College that the final day of the summer term and of the academic year should be an 'Events Day' comprising a series of 'Day Events' (running from 10am to 4pm) and an evening event or ball. These events were organised by the Student Ball Team and not by the Defendant. It was also part of this tradition that the event organisers were second year students presumably aged between 19 and 21 (the Claimant was technically in his third year, although he was at the end of the second year of his course in scenic arts, having switched courses during his second year). The Claimant was one of the two Day Events managers with responsibilities, albeit ones which do not appear to have been closely defined, for the set up and management of the entertainment. The 2009 Events Day largely duplicated the format and activities of the previous year, including the deployment of the inflatable pool. There exist good quality photographs taken in June 2008 evidencing horseplay in and around the inflatable pool which the Defendant accepts demonstrates that the pool had been used in a potentially dangerous way. The accident happened when the Claimant ran towards the pool and took a leap into it chest and face down, somehow landing in such a manner that his head impacted the side of the pool, his chin was thereby forced downwards towards his chest and/or his head rotated slightly, and thereafter his head struck the ground with force. Exactly how this terrible injury was sustained will be the subject of subsequent analysis and decision.
The claim is brought under the Occupiers' Liability Act 1957 and at common law. It is contended that the Defendant owed a duty of care to take appropriate steps to prevent the Claimant from injuring himself, including the making of risk assessments and ensuring proper supervision, if not taping off the pool to prevent people entering it at speed (this last allegation is not pleaded). The duty, so the submission runs, arose on the facts and in the circumstances of this particular case as a deemed incident of the college/student relationship or, in the alternative, on an assumption of responsibility of it by the Defendant arising in these particular circumstances, including knowledge of the risks acquired from the experience of the previous year. The Defendant denies the existence of a duty in these terms, denies breach, denies causation, and in any event asserts (either as its first roll of the dice or its last) that this risk was plain and obvious, yet the Claimant freely chose to run it.
I heard evidence from the following witnesses called by the Claimant: Andrew Risk, Jonathan Holbrey, Nick Amatt, Jonathan Martin, Sam Fishlock, Raymond Noakes, David Kerry and Kimberlee Green. The statement of Michelle Kenward was received as hearsay evidence under the Civil Evidence Act 1968. The Defendant's witnesses were Olivia Wong, Kieran Vanstone and KT Milne. In my review of the evidence I have read and heard I will not cover each and every point made by the witnesses, although I have taken into account everything that they say. The Defendant decided not to call a number of witnesses whose statements are in the trial bundle. I will need to come back to this issue in due course. There was also expert evidence from Professor Ball, a witness in health and safety management issues called by the Claimant. The Defendant refrained from calling similar evidence, taking the view that expert evidence would not assist the Court on the key issues.
The Rose Bruford College Student Union and the Ball Team: Legal Status and Financing
This is an unincorporated association governed by the terms of a written constitution [1/178]. As such, it is a separate legal person with its own financial accounts and management structure. A subcommittee of the Student Union known as the Ball Team hosted and was responsible for the setting up, financing and management of the Events Day [1/234, para 6].
The financing of both the Student Union and the Events Day was explored in evidence. Clause 9 of the constitution states that the Student Union shall receive an annual allocation of funds from the College sufficient in the latter's view to enable the former to carry out its aims and objectives adequately [1/181]. This does not rule out the possibility of the Student Union receiving money from other sources, but that is immaterial to the present action. According to the witness statement of Ms Olivia Wong [1/172, para 7]:
"The SU receives funding from RBC annually and I arrange this. RBC gives an annual subsidy to the SU and the SU is left entirely in control of how to spend the money. I usually release 50% of the funds at the start of the academic year and then 50% when requested by the SU partway through the year"
Ms Wong told me in evidence that the SU budget is approved by the Board and is not negotiated with the SU. It is therefore regarded as something akin to a donation. In previous years the subsidy involved had been in the region of £7,000 to £8,000; she could not exactly remember. The alighting on a particular figure for any given year was based on the amount paid in previous years and an additional sum to reflect inflation.
The impression given by Ms Wong's witness statement was that the College had no control over or interest in the amounts expended by the Ball Team referable to the Events Day in any particular year. No doubt the organisers would hope to break even, or perhaps make a small profit if they could, but all of this was for the Ball Team to worry about and not the Defendant.
During the course of his cross examination of Ms Wong, Mr Soole Q.C. sought to dispel that impression and in my judgment he achieved some considerable measure of success. It transpired in oral evidence that the College paid the additional insurance premium for the hire of the marquee, that the College agreed to pay an additional £2,000 for the 2008 Events Day following adroit arm-twisting administered by Kt Milne [2/529e-529k], and that the additional overspend for 2008 was met by the payment of an enhanced subsidy for 2009. I agree with the Claimant's submission that in this and other respects Ms Wong was seeking to place as much clear blue water as possible between the activities of the Ball Team on the one hand and those of the College on the other. Regardless of any health and safety issues, the College had a clear interest in promoting the success of the Events Day in burnishing its own reputation and goodwill, and in fostering good relations with the student body as a whole. Under pressure from Mr Soole, Ms Wong ultimately assented to the force of this point: as she put it, 'you could say that the Ball falls within the responsibility of the health and safety committee'. But whether this amounts to an assumption of responsibility for present purposes, or is relevant to it, is or may be a separate matter which I will need to consider.
The Defendant's Responsibility for Health and Safety at the College
In opening his case Mr Soole directed my attention to the Defendant's Health and Safety Policy Document for 2008–2009 [2/535]. He referred to a number of provisions but to my mind the key ones are clauses 1.2.1.2, 1.2.3, 1.2.4 and 1.2.5. These recognise in general terms that it is the aim of the Governing Body and College Management to ensure that the college is operated in such a way that all persons who use the premises, including students, are not exposed to risks to their health and safety. On my understanding of section 2 of this document, the entity with ultimate responsibility for health and safety issues at the College is the Governing Body. Below that entity in the organisational hierarchy, the Principal of the College has ultimate executive responsibility for health and safety matters. Beneath him, a body called the 'College Health and Safety Committee' meets monthly and exists to advise the Principal and Senior Management Group (as per the Organisation Chart at clause 2.1 [2/540]) on all aspects of health and safety. At the material time this committee was chaired by the Principal's nominee, Mr Philip Wigley. But day-to-day responsibility for health and safety matters, including the making of risk assessments, resides with the Directors, Managers and staff members responsible for particular activities; as well as the students in particular circumstances. Clause 2.5.2 of the Health and Safety policy is relevant in this last respect, and provides [2/543]:
" 2.5.2.1 Students Generally
The role of students generally in this respect is to comply with statutory and College health and safety rules and regulations in force and take responsibility for their own safety and that of others.
2.5.2.2 Areas of Responsibility
These include the requirement to
• comply with all statutory health and...
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