Jamie Kieran Against Ace Adventure Limited
| Jurisdiction | Scotland |
| Judge | Sheriff F L Reith QC |
| Neutral Citation | [2019] SC EDIN 47 |
| Court | Sheriff Personal Injury Court (Scotland - United Kingdom) |
| Docket Number | PN3187-17 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT
[2019] SC EDIN 47
PN3187-17
JUDGMENT OF SHERIFF FIONA LENNOX REITH, QC
in the cause
JAMIE KIERAN
Pursuer
against
ACE ADVENTURE LIMITED
Defender
Pursuer: Brian Fitzpatrick, Advocate; Digby Brown LLP
Defender: Cowan, Advocate; Plexus Law
Edinburgh, 1 May 2019
The sheriff, having resumed consideration of the cause, finds in fact:
(1) The pursuer is 31 years of age. He is married.
(2) The defender is a company incorporated under the Companies Acts and has a place
of business at Relugas Gardeners Cottage, Dunphail, Forres, Moray. The defender
has premises at Auchnagairn, Dunphail, Forres (“the premises”). They run a number
of outdoor activities from the premises. The outdoor activities include white water
rafting.
(3) On Saturday 25 April 2015 the pursuer attended the premises as a member of a party
of men attending a white water rafting experience on the River Findhorn organised
by the defender. This was one of a number of activities planned for a stag weekend
on both the Saturday and the Sunday for a member of the party. The white water
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rafting was planned for the Saturday. At this point, the pursuer weighed about 17
and a half stone. He now weighs about 17 stone.
(4) The pursuer had travelled up from Glasgow by car on Friday 24 April 2015 to join
other members of the party to stay overnight at a nearby bunkhouse. Members of
the party, including the pursuer, had a meal and some drinks on the Friday evening.
The pursuer was slightly hungover when he awoke the following morning at about
8am. He had a cooked breakfast and a rum and coke. He was not drunk. Alcohol
did not contribute to the accident referred to below. It did not contribute to the
manner in which the pursuer made his way down the slope referred to below.
(5) After breakfast on 25 April, the eight members of the party who were to be going
white water rafting were taken to the premises by mini-bus. The journey to the
premises took about 40 minutes. It was a cold day. There was rain and sleet on and
off.
(6) The party, including the pursuer, was given a briefing at the premises about the
activity. This briefing was given by an employee of the defender, Nick Ball. It lasted
between five and ten minutes. It was principally about the white water rafting itself.
It did not include any mention of the geography or topography of the location where
the white water rafting would be commenced or how access was to be taken to the
activity. The party was not told about the steep slope, referred to below, which they
would have to negotiate in order to reach the departure point for the white water
rafting on the river. There was also an instructor called Siana Hughes. The pursuer
was issued with a wetsuit, a life-jacket and a hat. He was also given the option to
pay an additional sum for the use of wet suit boots. The pursuer opted to pay for the
use of wet suit boots as he thought they would be a good idea for rafting. The party
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members got changed in a changing area at the premises and left day-clothing and
their own footwear (other than the wet suit boots) in the changing area. It is likely
that the pursuer had been wearing trainers to come to the premises. He left them
there after he had got changed. The party was at the premises between about 30 and
45 minutes. The party was lively. They were excited for the day. One member of
the party had been a bit too boisterous at the premises. The best man in the party
was asked by a staff member to speak to that party member to get him to calm down.
He did calm down. He was allowed to continue with the activity.
(7) The party was then taken in two mini-buses from the premises to the drop-off point
known as Drynachan for the white water rafting. There had been some delay in the
party leaving the premises, although the length of the delay was not proved. One of
the mini-buses had been running late with a party of children. The pursuer went in
the first of the two mini-buses. Nick Ball was in this mini-bus. Tracey Lamb was the
driver of this mini-bus. The drive to the Drynachan drop-off point took between
about 30 and 45 minutes. During the course of the journey, the mini-bus stopped at
least twice so that Nick Ball could check water levels in the river. There are three
different sections of the river. The section of the river chosen for the white water
rafting that day was the higher, “top and upper”, section. This was due to the height
of the river levels that day.
(8) Drynachan is a recognised put-in point in the sense that it is used by outdoor activity
operators, including the defender and Glenmore Training Lodge, in order to access
the River Findhorn for activities such as white water rafting, kayaking and canoeing.
This put-in point is included in the Scottish White Water guide book (2nd edition),
produced by the Scottish Canoeing Association, number 6/8 of process, under the
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