HEARING DATE 17 May 1995
Negligence - Occupiers' Liability Act 1957, s 2 - Local authority owning and
occupying youth house with facilities for gymnastics - Plaintiff instructed in
gymnastics - Plaintiff's supervisor not qualified as instructor - Youth house
allowing unsupervised access to gym equipment - Plaintiff attempting forward
somersault while unsupervised - Plaintiff suffering serious damage and now
quadriplegic - Whether local authority's alleged breach of statutory duty
relevant - Whether local authority negligent in allowing unsupervised access to
equipment - Whether local authority negligent in failing to provide proper and
qualified supervision of plaintiff's gymnastic activities
Contributory negligence - Contributory Negligence Act 1945, s 1(1) -
Plaintiff using local authority's youth house for gymnastics unsupervised -
Plaintiff undertaking dangerous gymnastic somersault close to wall - Plaintiff's
extra effort to impress audience - Plaintiff pitching into wall and suffering
serious injury - Whether plaintiff knew of real and considerable risk in
undertaking manoeuvre - Whether plaintiff contributorily negligent - Whether
judge's apportionment of liability against plaintiff and defendant reasonable
and sensible
HEADNOTE
The plaintiff (the respondent in the appeal), when aged 21 and a university student, suffered serious injury resulting from a catastrophic accident when he attempted to perform a forward somersault without supervision in the activities room at the Bedford Youth House (BYH), owned and occupied by Bedfordshire County Council (the appellant defendant). BYH, which the plaintiff had regularly attended, catered for young people in the age group 16-25. It offered a range of activities designed to develop the self-esteem of all young people, particularly those with social problems, and operated an 'open house' policy, with no membership requirement. It was deliberately designed to be the antithesis of a school or other structured environment. The upper floor included a room known as the 'sports' or 'activities' room. The staff, under a youth manager and a principal youth worker, were young social and youth workers who discreetly supervised the activities and running of the establishment and provided counselling when needed. The particular activity in question was gymnastics, to which end gym mats were provided of various sizes, shapes and composition to enable young people to do handstands, cartwheels and other tumbling type exercises. The mats were freely available and were on occasions also used for the expression of innocent high spirits. The plaintiff was an articulate, intelligent and likeable young man, a very fine athlete in many disciplines and described as adventurous and fearless. One of the supervisors, a trainee youth worker aged about 25 years, had been a friend of the plaintiff and his family for many years. This supervisor was well qualified to teach trampolining exercises, but not gymnastics. He instructed the plaintiff in the technique of a forward somersault on the trampoline and then on the floor. The judge at first instance was satisfied that when the supervisor demonstrated the manoeuvre on the floor there was about 10ft-15ft of unobstructed space beyond the far end of the crash mat, so that if over-rotation occurred that space prevented collision with any obstruction beyond it and the performer merely pitched forward with little risk of injury. There was unchallenged evidence that the forward somersault from the floor was the most dangerous of the common gymnastic exercises and too dangerous to be taught at school. If the recommendations of the Sports Council and other independent bodies were followed, a coach of level 4 ability would have been present at all times when the forward somersault was being taught or performed. Expert witnesses agreed that anyone aspiring to learn the forward somersault should have the theory and inherent dangers carefully explained to him. The plaintiff's supervisor was not present, nor was there any supervision from any other youth worker. The accident occurred because, in the hope of impressing some watching girls, the plaintiff put too much effort into the manoeuvre and over-rotated. He suffered serious injury because he had laid out the crash mat on which he was performing the somersault right up against a wall, so that the centre of the mat where he was aiming to land was only 3ft 6in from the wall. When he over-rotated, his forward momentum catapulted him into the wall. Had the mat been more sensibly placed at a distance from the wall, he would probably have sustained no more than minor injury and might have suffered none at all. As it was, he suffered damage to his vertebrae and was now a quadriplegic. The judge found that the danger of the plaintiff hitting the wall must have been obvious to him. The plaintiff's pleaded case was that the defendant was negligent in: (1) allowing unsupervised access to the mats and allowing them to be laid without supervision; and (2) failing to provide proper and qualified supervision while the plaintiff was performing gymnastic activities on its premises. The defendant alleged that the plaintiff was the sole author of his own misfortune and that the accident occurred because the plaintiff: (1) placed the mat too close to the wall; (2) executed the somersault dangerously close to the wall; (3) attempted to execute a forward somersault without assistance or supervision; and (4) performed the somersault so as to strike the wall. On a preliminary issue as to liability, the judge found that the defendant was liable to the plaintiff for breach of statutory duty under s 2 of the Occupiers' Liability Act 1957 and for negligence, but that the plaintiff was two-thirds to blame for the accident. The defendant appealed against the finding as to its liability, and the plaintiff cross-appealed against the finding that he was guilty of contributory negligence.
Held
(1) In doubting whether there was any distinction of significance between a claim in negligence and under the Occupiers' Liability Act 1957, the judge had been correct to prefer simply to ask, first, whether the defendant owed a duty of care to the plaintiff. While the court did not concur with the judge that the availability of the mats constituted an 'enticement' or an 'allurement', and the court also held that the accessibility of the mats was not the cause of the accident, the judge's findings of negligence were not read to be confined to the accessibility of the mats. There was other evidence of primary facts upon which to base findings of negligence within the scope of the pleadings. It was common ground that the forward somersault was a hazardous exercise with a clearly foreseeable risk of injury. There was no member of staff who was qualified to teach gymnastics, still less to the level required and recognised by independent bodies for the teaching of the forward somersault. A proper system of instruction would have included an express prohibition against practising the manoeuvre in the absence of a supervisor, and it was also likely that such instruction would have included the correct and safe placing of crash mats, and impressing upon the learner the necessity of not placing the mats near to obstructions. It could readily be inferred that had the plaintiff's supervisor been present on the day in question, he would have seen immediately that the crash mat had been placed by the plaintiff in a dangerous position and would have required it to be moved. If over-rotation, through enthusiasm by the plaintiff to impress his audience, had occurred with the mat in free space, there would have been little or no risk of serious injury.
(2) It was clear from the judge's findings that those senior members of staff who were constantly present at the premises were aware that young persons were regularly performing gymnastics on mats when there was no supervision. All kinds of gymnastics were being performed, including forward somersaults. Although it was not legitimate to infer negligence before an accident from action taken by the defendant thereafter, it was still not without significance in practical terms that the defendant's safety officer, having investigated the accident, made recommendations in order to prevent a repetition of this type of accident, stating, inter alia, that greater emphasis needed to be placed on health and safety issues in the youth service. The judge was therefore entitled to come to the conclusion that the defendant was negligent, in that it issued no form of written warning or prohibitory notice, nor any verbal ones; that it took no steps to prohibit such user; and that there was no suggestion that the area youth officer, who had abundant opportunity, or the defendant's PE adviser, ever intervened to control the potentially dangerous practice, which was the use of the mats for gymnastics in the absence of supervision. There was, therefore, sufficient evidence for the judge safely to conclude that the defendant was in breach of its common law duty of care to the plaintiff.
(3) Even if the plaintiff had not been obliged to concede that he knew of the risk, on the totality of the evidence it was blindingly obvious to any reasonably intelligent person that the plaintiff was taking a real and considerable risk in performing the manoeuvre so close to the wall when he knew of the possibility of over-rotation. The mechanism of the manoeuvre by its very nature carried a very considerable risk of serious injury. Even when performed perfectly, it meant that the plaintiff landed on his feet in the centre of the mat, a matter of 3ft or so from the wall. To this had to be added the finding by the judge that the plaintiff put in an extra effort by way of acceleration and rotation in order to impress his audience and that it was this which caused him to go out of control on landing and to pitch forward into the wall. In those circumstances it was impossible to say that the plaintiff was not guilty of contributory negligence and that his foolhardy conduct did not contribute to the accident. The judge's apportionment of two-thirds against the plaintiff and one-third against the defendant seemed to be an eminently reasonable and sensible (even generous) apportionment in all the circumstances.
Per Otton LJ: argument was addressed to the court on the applicability of the Occupiers' Liability Act 1957, but it was not necessary to deal with that matter. The accident did not arise out of the unsafe condition of the premises themselves (the 'occupancy liability'). It was difficult to see how this accident fell within the ambit of 'activity liability', which appeared to apply to injury to third parties who were visitors to the premises rather than to injury suffered by a person partaking of the activity itself, and this aspect was of academic interest only.
Per Millett LJ: anyone who assumed the task of teaching the forward somersault was under a duty not only to teach the technique involved in the exercise and to explain the dangers associated with its performance but to teach the steps which must be taken to prepare for it, including the laying of the crash mat, and to explain the dangers of performing the exercise in an inappropriate environment. It mattered not how obvious a danger might be; it should be pointed out. This was particularly the case where the danger of a minor accident (such as hitting an obstruction) might be obvious, but the risk of really serious injury was unlikely to be appreciated by the inexpert.
CASES REFERRED TO
Sutherland Shire Council v Heyman (1985) 60 ALR 1, [1985] 59 ALJR 564
Statutory provisions considered
Contributory Negligence Act 1945, s 1(1)
Occupiers' Liability Act 1957, s 2
COUNSEL
Bernard Livesey QC and David Bradly for the appellant
Rupert Jackson QC and
Robin de Wilde QC for the respondent
PANEL: Nourse, Millett and Otton LJJ
JUDGMENT BY OTTON LJ
This is an appeal from the decision of Ognall J on 27 July 1993 whereby he found, on a preliminary issue as to liability, that the defendants were liable to the plaintiff for breach of statutory duty and negligence.
There is also a cross-appeal by the plaintiff against that part of the judgment whereby he found the plaintiff guilty of contributory negligence.
By this action the plaintiff (the respondent on the appeal) seeks damages for severe personal injury, loss and damage resulting from a catastrophic accident on 10 December 1990 caused by the breach of statutory duty and/or negligence of the defendants, their servants or agents as owners and occupiers of the Bedford Youth House (BYH). At the time of the accident the plaintiff was 21 years of age. He was a university student studying materials engineering. He regularly attended the BYH which caters for young people in the age group 16-25. It offers a range of activities designed to develop the self-esteem of all young people, particularly those with social problems. It operates an 'open house' policy; there is no membership requirement. Young people are free to drop in and stay as long as they wish while the premises are open. The facilities include a creche, a coffee bar, a canteen, a lounge and rooms devoted to the arts and crafts. From midday to 3.30pm there are additional facilities for recreation in the form of music, computers and television. The upper floor included a room known as the 'sports' or 'activities room'. It measures approximately 55ft x 35ft with a polished wooden floor. There were two table-tennis tables, a pool table and a darts board; a badminton court was marked out and a set of weights and a trampoline were provided. The judge found that it was deliberately designed to be the antithesis of a school or other structured environment.
The staff, under a youth manager and a principal youth worker, were young social and youth workers who discreetly supervised the activities and running of the establishment and provided counselling when needed. The particular activity out of which this litigation arises was gymnastics. To this end gym mats were provided of varying sizes, shapes and composition to enable the young people to do handstands, cartwheels and other tumbling type exercises. The mats were freely accessible and were on occasions also used for the expression of innocent high spirits.
The judge found the plaintiff to be an articulate, intelligent and likeable young man. He was a very fine athlete in many disciplines and was described by one of his former teachers in gymnastics as adventurous and fearless. He would drop in to the BYH from time to time and avail himself of the facilities. One of the supervisors, Richard Ferguson, a trainee youth worker aged about 25 years, had been a friend of the plaintiff and his family for many years. He was well qualified to teach trampolining exercises but not gymnastics. There came a time when the plaintiff was instructed in the technique of performing a forward somersault on the trampoline. Richard Ferguson also demonstrated the technique on the sports hall floor. For this purpose the gym mat and crash mat would be lined up and the somersault performed by running along the foam mats and somersaulting so as to land upright in the centre of the crash mat. On several occasions prior to the accident Richard Ferguson demonstrated how it should be done and the plaintiff followed suit. On such occasions Mr Ferguson was on hand to assist and support the plaintiff if the manoeuvre was not correctly executed.
The basic technique of the forward somersault is a run up in order to achieve momentum, a take off with the head and shoulders moving forwards with the knees moving into the chest in what is known as 'the tuck'. The gymnast then rotates the body through 360 degrees, the body opens out so as to land on the feet in the upright position and poised. Mr Lowe, the plaintiff's expert described it thus:
'The forward somersault is the most dangerous of the common gymnastic manoeuvres. An over-rotating forward somersault is considered by most coaches and leading authorities on the sport as the single most dangerous situation for even an experienced gymnast to be in.The forward somersault is difficult and dangerous as failure to complete the movement results in a fall on the spine with the head pressed chin down on the chest. If the movement is over-rotated it results in a fall with the head forced back with the weight and energy from the rotation concentrated on a very small area of the spine [as in the case of Mr Fowles]. With both under-rotation and over-rotation leaving the gymnast in a dangerous position the forward somersault must be treated with great caution and taught through the use of the recognised progressions and the accepted standards of safety.
The forward somersault is not considered by teachers as a general gymnastics activity (recreation level) and is not included in the BAGA General Award Programme until level 3. It is contained in the syllabus for the highly specialised competitive men's syllabus at level 4. The requirements to take this award are very specific.'
and later:
'Under the recommendations of the Sports Council, the CCPR and the BAGA a coach of level ability should have been present at all times of performance and teaching ... '
It is a significant fact in this case that Mr Richard Ferguson was not so qualified.
Mr Lowe described the normal progressions for the teaching of the exercise and at number 6 he states:
'An unsupported attempt should only follow after a 100% success rate of 10 lightly supported performances. In this way support and assistance is withdrawn a little at a time until confidence and technical ability can be safely assessed.'
The plaintiff had reached this stage and on several occasions in the presence of Mr Ferguson (as the judge found) had successfully performed the exercise unsupported. Finally Mr Lowe said:
'All movement sports are hazardous. All sports requiring great speed and acceleration are especially hazardous. Inversion of the body places the spine at risk. Gymnastics must never be allowed to take place without supervision.'
Furthermore, the judge found that the 'exercise is not to be performed, even by a skilled gymnast, without the assistance of people described as "spotters"' who are immediately and physically on hand to give assistance in the event of some untoward mishap or contingency.
The position of the mats and in particular the crash mat within the activities hall was also critical. The judge was satisfied that when Mr Ferguson demonstrated the manoeuvre there was about 10-15ft of unobstructed space beyond the far end of the crash mat. The purpose of this is obvious. If over-rotation occurs, the unrestricted space between the crash mat prevents collision with any obstruction beyond it, and the performer merely pitches forward with little risk of injury.
The accident
On the day in question the plaintiff arrived at BYH at approximately 12.45 pm. At about 3pm he and his friend Bernard Lendor went to the activities hall. They decided to do some gymnastics. They took the crash mat and some of the other mats from the pile and lined them up 'with the crash mat at the end by the wall'. In evidence he described how he and Bernard took it in turns to attempt the forward somersault. He said:
'I had attempted round about 10 of them before my accident. When I did so, occasionally I landed up on my feet, on the other occasions I under-rotated. I did not notice any real movement of the mats when I was doing this. I then put a little more effort into one, and over-rotated and hit the wall on the way down. Three or four girls and a couple of guys were watching me by this time, although I had an audience, I was not showing off.'
There was an issue as to the precise position of the mat and the judge found as a fact that the far end of the crash mat was 'as near as makes no difference hard up against the wall'. Mr Ferguson was not present, nor was there any supervision from any other youth worker.
As a result of the accident the plaintiff was admitted to Bedford General Hospital where he was monitored for a hyperextension injury to his cervical spine and spinal cord. He was transferred to the London Spinal Unit at the Royal National Orthopaedic Hospital at Stanmore. He had suffered serious and permanent injury.
In arriving at his conclusions on the issue of primary liability the judge concentrated on paras (5) and (7) of the statement of claim, under particulars of negligence:
'(5) Allowing or permitting the gymnastic mats to be laid without any or any proper supervision and allowing unsupervised access to the said mats....
(7) Failing to provide any proper and qualified supervision or at all in respect of the plaintiff's gymnastic activities in the said premises.'
The judge was satisfied on the evidence that the mats were easily accessible, that their use went essentially unchecked, that there was no specific prohibition on their use, nor any supervision of such activity. He noted that the claim was pleaded both in negligence and under s 2 of the Occupiers' Liability Act 1957. He doubted whether there was any distinction of significance between the two and preferred (correctly in my view) 'simply to ask, first, whether the defendants owed a duty of care to the plaintiff in this case'. He rejected the defendants' primary submission that the plaintiff was wholly the author of his own misfortune. He said at p 20G:
'I do not agree with [this submission]. The question of the plaintiff's age and state of awareness are of course plainly relevant to questions going to the true cause of this dreadful accident; but they cannot, it seems to me, illuminate the question of the existence or otherwise of a duty of care. Here I am of the opinion that the defendants did owe a duty to the plaintiff, and to all whom they invited or permitted to use the youth house. They provided equipment - in this case, the mats. They knew, or ought to have known, that they were from time to time used unsupervised for, amongst other things, gymnastic-type activities. They took no steps to secure the mats, to render them inaccessible save when a supervisor was present. They issued no form of written warning or prohibitory notice, nor any verbal ones on which I have heard reliable evidence. They certainly, as I have indicated, took no steps to prohibit such user.'
Later at p 23C he said:
'I think that the want of a proper system of control must be characterised as negligent, and it was that want of control which led to the accident; "no mats, no accident", as Mr de Wilde put it on the plaintiff's behalf. I think he was correct in that essential submission.'
The appellants' case
Mr Bernard Livesey QC, on behalf of the appellants, submits that the judge was wrong in law to find that the defendant owed a duty of care to the plaintiff, having regard inter alia to the plaintiff's age, intelligence, experience, the concept, ethos and nature of the BYH and the plaintiff's knowledge of it. In the alternative he submits that the judge was wrong in law to find that the defendant owed a duty to the plaintiff to control the plaintiff 's conduct while at the BYH, to secure the mats, to render the mats inaccessible, to issue any warning in relation to the use of the mats or to prohibit use of the mats.
He contends that the plaintiff was a mature person, a competent sportsman and athlete, articulate and intelligent. Relying on the judge's findings that the plaintiff must have known that there was a very considerable risk in performing this potentially dangerous exercise with the mat hard up against the wall, he submits that the plaintiff was the author of his own misfortune. He places considerable emphasis upon the judge's finding that the plaintiff put a special effort into the somersault in order to show off in front of the young females who had entered the hall and as a result he seriously over-rotated and smashed headfirst into the wall.
Mr Livesey's powerful submissions caused me to reflect seriously upon the judge's primary finding and the route he took to arrive there. He seems to have taken as his starting-point the fact that the mats were not locked away when they were not in use and that they 'took no steps to secure the mats, to render them inaccessible save when a supervisor was present.' He accepted counsel's 'essential submission' (as he put it) 'no mats, no accident'. For my part if the issue of primary liability depended solely upon this finding as a basis for negligence, I would have been tempted (with due deference to the learned judge) to accede to Mr Livesey's submission. Those responsible for initiating and running the BYH created an ethos which was deliberately designed to be the antithesis of a school or other structured environment; locking away the mats (unlike securing the trampoline) would have undoubtedly detracted from that policy. In my judgment the duty of care of the occupiers at the BYH, as opposed to a school, did not extend to the removal and securing of the mats except when in use under the immediate supervision of the youth and social workers. Thus I do not concur with the line taken by the learned judge that the availability of the mats constituted an 'enticement' or an 'allurement'. I would also reject the argument 'no mats, no accident', for the further reason that the accessibility of the mats was not a cause of the accident. Their accessibility merely created an opportunity for what happened thereafter. This is a classic illustration of the distinction between a 'causa sine qua non' and a 'causa causans'. The immediate causes were the absence of supervision during the practice of a dangerous exercise and the position of this particular mat on the day of the accident.
However, I do not read the judge's findings of negligence to be confined to the accessibility of the mats. There was other evidence, depending on how the judge assessed it, which entitled him to find primary facts upon which to base findings of negligence (within the scope of the pleadings). It was common ground that the forward somersault is a hazardous exercise with a clearly foreseeable risk of injury. There was no member of staff who was qualified to teach gymnastics, still less to the level required and recognised by independent bodies for the teaching of the forward somersault. A proper system of instruction would have included an express prohibition against practising the manoeuvre in the absence of a supervisor. It is also likely that such instruction would have included the correct and safe placing of crash mats, and impressing upon the learner the necessity of not placing it near to obstructions at the far end of the crash mat. To my mind it can readily be inferred that had Mr Ferguson been present on the day in question he would have seen immediately that the crash mat had been placed by the plaintiff in a dangerous position and would have required it to be moved. Thus it is perhaps more accurate to say 'no crash mat against the wall, no serious accident'. If over-rotation, through enthusiasm and a desire to impress his audience, had occurred with the mat in free space, there would have been little or no risk of serious injury.
Furthermore, it is clear from the judge's findings that those senior members of staff who were constantly present at the premises were aware that young persons were regularly performing gymnastics on mats when there was no supervision. All kinds of gymnastics were being performed including forward somersaults. Although it is not legitimate to infer negligence before an accident from action taken by defendants thereafter, it is still not without significance in practical terms that the defendants' safety officer, having investigated the accident, recommended as follows:
'In order to avoid a repetition of this type of accident, the following recommendation should be seriously considered:1. An activity involving a gymnastics movement requires both technical skill and precision, and therefore it is potentially very hazardous. Young people/adults attending youth service establishments should therefore not be permitted to carry out such an activity unless there is a qualified and competent instructor in attendance at all times.'
and later:
'Greater emphasis needs to be placed on health and safety issues in the youth service where the supervising and control of particular age groups can be particularly difficult ... '
Consequently I am satisfied that the learned judge was entitled to come to the conclusion that the defendants were negligent in that:
'They issued no form of written warning or prohibitory notice, nor any verbal ones ... they took no steps to prohibit such user.'
and later:
'There is no suggestion, as I have said, that the area youth officer, who had abundant opportunity, or the defendant's PE adviser, ever intervened to control, as I find, this potentially dangerous practice.'
The words 'this practice' refers to the use of the mats for gymnastics in the absence of supervision.
I have therefore come to the conclusion that there was sufficient evidence upon which the judge could safely conclude that the defendants were in breach of their common law duty of care to the plaintiff. On reflection, I am also satisfied that when the judge said 'I think the want of a proper system of control must be characterised as negligent' he was not confining himself to 'no mats, no accident' but by inference was including the other bases of the finding of negligence to which I have referred.
Argument was addressed to us on the applicability of the Occupiers' Liability Act 1957. It is not necessary to deal with this matter. Suffice it to say that the accident did not arise out of the unsafe condition of the premises themselves (the 'occupancy liability'). It is difficult to see how this accident fell within the ambit of 'activity liability' which appears to apply to injury to third parties who are visitors to the premises rather than to injury suffered by a person partaking of the activity itself. In view of my earlier conclusion I consider this aspect to be of academic interest only.
Mr Livesey further submits that the judge was wrong to find that any act or omission on the part of the defendants, its servants or agents was causative of the plaintiff's accident. In essence, he contends that the sole and immediate cause of the accident was the action of the plaintiff in placing the mat in a dangerous position and then performing the somersault. The chain of causation was broken factually and in law.
I have come to the conclusion that this argument is not sustainable. The duty of care, as I have spelt it out to be, was a continuing duty and the breach which I have analysed was also continuing until the accident occurred. As I have indicated, if a supervisor had been present it is unthinkable that he would have permitted the mat to be placed in that position. Similarly, proper instruction would have included the necessity of placing the mat in a safe position. Proper supervision would have ensured that practising gymnastics unsupervised would have been discontinued and discouraged. I am satisfied that the learned judge correctly found that the defendants' negligence was a factor which was causative of the occurrence of the accident. As the judge put it:
'I am of the opinion that the defendants' negligence continued to play an effective role in the causing of this accident and the plaintiff's injuries.'
The cross-notice: contributory negligence
Mr Rupert Jackson QC, on behalf of the plaintiff, submits that the finding of contributory negligence should be reversed, alternatively substantially reduced.
He relies upon the key facts. The plaintiff had not learnt the forward somersault at school. He had not received proper training in the manoeuvre at BYH. The theory had not been explained to him and he had not been warned of the risks. He had not been told that mats should be placed in the centre of the hall nor why this was necessary. He contends that the judge wrongly disregarded the evidence of the plaintiff of the extent to which he relied upon the instructions of the defendants' servants or agents. Accordingly, the plaintiff's conduct did not amount to 'fault' within s 1(1) of the Contributory Negligence Act 1945. He submits that the key to such a finding must be the plaintiff's knowledge or lack of it. He gave evidence that he did not realise the risk that he was running by placing the mat so close to the wall. The judge ought to have accepted this evidence. The judge attached undue weight to the concession by the plaintiff's experts in cross-examination that they 'were stunned by the plaintiff's foolishness in placing the crash mat against the wall'.
I cannot accede to these submissions. The judge clearly did not accept the plaintiff's denial of the knowledge of the risk. It is correct that he did deny it initially, but when Mr Livesey cross-examined him on each stage of the manoeuvre and the inherent danger of performing it close to the wall he was obliged to concede the point. Even if he had not done so, on the totality of the evidence it was blindingly obvious to any reasonably intelligent person that he was taking a real and considerable risk in performing this manoeuvre so close to the wall when he knew of the possibility of over-rotation. The mechanism of the manoeuvre by its very nature carried a very considerable risk of serious injury. Even when performed perfectly, it meant that he landed on his feet in the centre of the mat a matter of three feet or so from the wall. To this must be added the finding by the judge that the plaintiff put in an extra effort by way of acceleration and rotation in order to impress his audience and that it was this which caused him to go out of control on landing and to pitch forward into the wall. In those circumstances it is impossible to say that the plaintiff was not guilty of contributory negligence and that his foolhardy conduct did not contribute to the accident. I am satisfied that he must bear a substantial part of the blame.
The judge apportioned two-thirds against the plaintiff and one-third against the defendants. This seems to me to be an eminently reasonable and sensible (even generous) apportionment in all the circumstances of the case. Judging the plaintiff's behaviour in terms of 'culpability' and 'causative potency', he must inevitably bear a higher proportion than that of the defendant. In apportioning liability as he did the learned judge did not fall into error and the apportionment (if it were unjust, which I do not accept) is not such that this court would be justified in interfering, either by decreasing or increasing it.
I would therefore dismiss both the appeal and the cross-appeal.
JUDGMENT BY MILLETT LJ
The plaintiff, Mr Fowles, tragically suffered serious injury when he attempted to perform a forward somersault without supervision in the activities room at the Bedford Youth House of the defendant county council. Mr Fowles was aged 21 at the time. The accident occurred because, in the hope of impressing some watching girls, he put too much effort into the manoeuvre and over-rotated. He suffered serious injury because he had laid out the crash mat on which he was performing the somersault right up against a wall, so that the centre of the mat where he was aiming to land was only 3ft 6in from the wall. When he over-rotated his forward momentum catapulted him into the wall. Had the mat been more sensibly placed at a distance from the wall, he would probably have sustained no more than minor injury and might have suffered none at all. As it was, he suffered damage to the C5, C6 region of his vertebrae and is now a quadriplegic.
Mr Fowles is almost 6ft tall. The judge found that the danger of his hitting the wall if he placed the mat where he did must have been obvious to him. Two expert witnesses called on behalf of Mr Fowles told the judge that, as professional gymnasts, they were 'stunned by the utter foolishness' of what Mr Fowles had done. The judge found that he was two-thirds to blame. It is plain that he bears by far the greater part of the responsibility for the accident. The question, which I have not found an easy one, is whether he does not bear the whole responsibility.
Mr Fowles' pleaded case is that the defendants were negligent in: (i) allowing unsupervised access to the mats and allowing them to be laid without supervision; and (ii) failing to provide proper and qualified supervision while Mr Fowles was performing gymnastic activities on their premises.
The defendants allege that Mr Fowles was the sole author of his own misfortune. They claim that the accident occurred because he: (i) placed the mat too close to the wall; (ii) executed the somersault dangerously close to the wall; (iii) attempted to execute a forward somersault without assistance or supervision; and (iv) performed the somersault so as to strike the wall.
The judge held that the defendants owed Mr Fowles a duty of care and that they were in breach of that duty. He grounded their liability on the facts that they had provided the mats; that it was foreseeable that young people, including young adults, would behave stupidly, particularly if bored; and that if they did stupid things on the mats they might injure themselves. He held that they were in breach of their duty by allowing unrestricted access to the mats. These findings accorded with the way in which Mr Fowles' case was put to the judge: the crash mat was inherently dangerous; the accident occurred because Mr Fowles placed it too close to the wall before performing his exercises on it; that was, as his junior counsel at the trial observed, an extremely foolish and dangerous thing to do; but Mr Fowles should not have been allowed unrestricted access to the mat; and, as counsel observed, 'No mat, no accident'.
In my judgment, this basis of liability cannot be supported. The judge did not identify the relationship between the parties which gave rise to a duty to restrict access to the mats, but seems to have proceeded on the basis that the foreseeability of harm if access was not restricted was sufficient. That is not the law. As Brennan J observed in Sutherland Shire Council v Heyman (1985) 60 ALR 1:
'If foreseeability of injury were the exhaustive criterion of a duty to act to prevent the occurrence of that injury, legal duty would be coterminous with moral obligation ... the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible.I can be liable only for an injury that I cause to my neighbour. If I do nothing to cause it, I am not liable for the injury he suffers except in those cases where I am under a duty to act to prevent the injury occurring. Indeed, he is not in law my neighbour unless he is foreseeably "affected" by my conduct. But he can be said to be "affected" by my omission to act to prevent injury being done to him only if I am bound to act and do not do so. He cannot be said to be affected by my omission to act if I am not under a duty to him to act. Lord Atkin's "neighbour" test involves us in hopeless circularity if my duty depends on foreseeability of injury being caused to my neighbour by my omission and a person becomes my neighbour only if I am under a duty to act to prevent that injury to him. Foreseeability of an injury that another is likely to suffer is insufficient to place me under a duty to him to act to prevent that injury. Some broader foundation than mere foreseeability must appear before a common law duty to act arises.'
The only relationships implicit in the judge's reasoning are those between the defendants as occupiers of the premises and Mr Fowles as a visitor; or between the defendants as owners of the crash mat and Mr Fowles as a person allowed to use it. But neither provides a sufficient basis for the existence of a duty on the part of the defendants to prevent Mr Fowles from having unrestricted access to the mat. As occupiers of the premises the defendants owed Mr Fowles a duty not to expose him to dangers due to the state of the premises or to things done or omitted to be done on the premises, whether by themselves or by other visitors. But the accident did not occur as a result of a breach of any such duty. They were under no duty as occupiers to take steps to prevent their visitors harming themselves by their own foolish conduct while on the premises. As for the mat, it was not inherently dangerous nor was it an allurement; and Mr Fowles was not a child.
Moreover, the mat was not the cause of the accident. With all respect to junior counsel for Mr Fowles, the submission 'No mat, no accident', while obviously true, was unhelpful. It would be equally true, and equally unhelpful, to say: 'No wall, no accident'. It is trite law that an act or event may be a condition sine qua non of another and yet not be causally connected with it. In the present case the sole cause of the accident was that Mr Fowles performed a forward somersault too close to an obstruction, so that when he over-rotated he was impelled headlong into it. He did this because he (sensibly) laid out a crash mat and aimed to land in the centre of the mat, but (foolishly) placed the mat right up against a wall. The availability of the mat did not cause the accident in any relevant sense; it merely provided Mr Fowles with the opportunity to cause himself harm. Where there is no connection between the defendant's acts and the acts of the plaintiff except that the defendant made it possible for the plaintiff to harm himself, the plaintiff's acts are taken to be the sole cause of the harm to the exclusion of those of the defendant.
Accordingly, if the only features of the case were those identified by the judge, I would allow the appeal and dismiss the action. But there is an additional feature which was present. Mr Fowles had been taught gymnastics at school up to the age of 14, but he had not been taught the forward somersault. At the Bedford Youth House, however, one of the youth workers, a Richard Ferguson, showed him how to perform the exercise both on the trampoline and from the floor using the crash mat, and stood beside him and rendered assistance when he attempted it.
There was unchallenged evidence that the forward somersault from the floor is the most dangerous of the common gymnastic exercises. An over-rotating forward somersault is considered by coaches and leading authorities on the sport to be the single most dangerous situation for even an experienced gymnast to be in. The manoeuvre is difficult and dangerous because failure to complete the movement due to under-rotation results in a fall on the spine with the head pressed chin down on the chest; while over-rotation results in a fall with the head forced back with the weight and energy from the rotation concentrated on a very small area of the spine. The forward somersault from the floor is too dangerous to be taught at school. If the recommendations of the Sports Council, the Central Council for Physical Education and the Amateur Gymnastics Association were followed, a coach of level 4 ability would be present at all times when the forward somersault was being taught or performed. The expert witnesses agreed that anyone aspiring to learn the forward somersault should have the theory and the inherent dangers carefully explained to him.
Mr Ferguson was employed by the defendants. He was not qualified to teach the forward somersault, and he did not warn Mr Fowles of the risks or impress upon him that he must never attempt the manoeuvre except in the presence of a qualified supervisor. Having assumed the task of teaching Mr Fowles how to perform the forward somersault, the defendants voluntarily assumed a duty to teach him properly and to make him aware of the dangers. They failed to do either; and then compounded their failure by providing unrestricted access to the crash mat, thereby encouraging him to use it to practise what he had been taught, without warning him that he must on no account do so without supervision.
This appears to me to be a sound basis for ascribing some degree of responsibility to the defendants. It is true that this is not how the case was primarily pleaded or presented, but it is supported by the evidence and it would cause no injustice to the defendants if liability was put on this basis. I have, with rather more hesitation, reached the conclusion that it also overcomes the problems of causation. There is no difficulty in inferring that, if Mr Fowles had not been taught how to do the forward somersault or if he had been warned not to try it on his own, the accident would not have happened. If a qualified person had been in attendance, he would have ensured that the mat was properly positioned some distance from any obstruction. The difficulty lies in making a causal connection between the defendants' breach of duty and the accident. The presence of a supervisor while the exercise is being performed is desirable because it is inherently dangerous. His attendance is required so that he may give assistance and support during the actual performance of the exercise. It is not required in order to prevent the gymnast committing the obvious folly of placing the mat hard up against an obstruction. Thus the actual cause of Mr Fowles' injury arguably lay outside the scope of the danger from which the defendants had assumed a duty to protect him.
I have, however, come to the conclusion that this is not the case. Anyone who assumes the task of teaching the forward somersault is under a duty not only to teach the technique involved in the exercise and to explain the dangers associated with its performance but to teach the steps which must be taken to prepare for it, including the laying of the crash mat, and to explain the dangers of performing the exercise in an inappropriate environment. It matters not how obvious a danger may be, it should be pointed out. This is particularly the case where the danger of a minor accident (such as hitting an obstruction) may be obvious, but the risk of really serious injury is unlikely to be appreciated by the inexpert.
Mr Fowles has brought a cross-appeal by which he seeks to reduce the share of the damages which he must bear himself. I would not be prepared to differ from the finding of the very experienced judge that Mr Fowles was two-thirds to blame; if anything, it was too favourable to Mr Fowles.
I agree that both the appeal and Mr Fowles' cross-appeal should be dismissed.
JUDGMENT BY NOURSE LJ
I also agree and do not wish to add anything of my own. Both appeal and cross-appeal are dismissed.
DISPOSITION
Appeal and cross-appeal dismissed with the respondents to have all their costs. Legal aid taxation granted to the plaintiff. Leave to appeal to the House of Lords refused.
SOLICITORS:
Vizards for the appellant
Collins Stone & Co for the respondent
JONATHAN ROBINSON SOLICITOR