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Whiplash forseeability on theme park ride

JASON LOWDON v JUMPZONE LEISURE UK LTD (2015) BREACH OF DUTY OF CARE : FORESEEABILITY : GENERAL DAMAGES : MEASURE OF DAMAGES : NECK : NEGLIGENCE : SPORTS AND LEISURE FACILITIES : WHIPLASH INJURY

A judge had been entitled to conclude that the risk of neck injury was a foreseeable consequence of launching a customer on a sports ride without adequate warning. The ride involved the customer being propelled into the air by elastic ropes while strapped into a harness, and the company's own guidelines highlighted the possible risks of failing to adhere to security rules, which included asking the customer if they were ready. A company appealed against a decision that the claimant had suffered personal injury as a result of its negligence. The company also appealed against the general damages award. The company operated a ride known as the "Hyper Jump", which involved customers being strapped into a harness with elastic ropes on either side. The operator counted down from three and released the ropes when the rider signalled they were ready. Once released, the rider was propelled into the air and bounced up and down for a matter of seconds. The claimant said that he was released without warning on his second ride. He said that he was not aware of any injury at the time, but found his neck to be stiff and painful over the following few days. He then suffered a loss of vision and was found to have suffered a dissection of the vertebral artery. He claimed that the persons who had been operating the jump had acted negligently in releasing him without warning. The judge's unchallenged finding was that the claimant had been released without warning while his head was down. She held that the injury was sustained as a result of the company's negligent operation of the equipment and failure to give an adequate warning, and that such injury had been reasonably foreseeable. She referred to the fact that the company's guidelines highlighted the possible risk of death if security rules were not followed. Those rules included asking the customer if they were ready. She assessed general damages for pain and injury and loss of amenity at £17,000, which included £5,000 for being unable to drive a car for two years. The claimant was also awarded special damages of £6,500 for loss of profit on business mileage, plus interest, making a total sum of £25,616.34.

The company argued that the jump had operated without injury for many years with thousands of customers, and that it was not reasonably foreseeable that a customer who was properly strapped in could be caused injury by being released without warning while their head was down.

HELD:

(1) The judge had not placed too much emphasis on the company's own guidelines when concluding that if no warning was given injury might result. The company's argument that the failure to adhere to its own strict guidelines did not give rise to a foreseeable risk of injury was a late development; its pleaded case admitted that the guidelines were intended to reduce the risk of injury to ride participants. Its case had been that the claimant had not been launched without warning and that his head had not been thrown about violently. The judge properly considered, and rejected, the argument that it was not a breach of duty of care to launch a customer without warning. She concluded that the company normally strictly followed its guidelines in that respect, though that might be modified during the operation of a second ride to simply asking the customer if they were ready rather than giving a 3, 2, 1 countdown. There was nothing in the expert evidence to support the company's thesis that risk of injury was not foreseeable in the absence of a warning. On the contrary, the expert evidence directly supported the proposition that there was an increased likelihood of injury being caused if the customer was not warned to brace themselves before launch. In the circumstances, it was perhaps not surprising that there was no broader analysis about the extent to which personal injury, or neck injury, was the foreseeable consequence of an unexpected launch. The issue had not arisen as a significant issue before trial. The parties had not engaged in a broad assessment of the experiences of other businesses operating the ride in similar circumstances, and the absence of any previously reported injuries in the operation of the ride did not therefore, per se, demonstrate that such injury was not reasonably foreseeable. A number of factors could have contributed to the fact that the defendant had not been the recipient of previous complaints, including the fact that soft-tissue neck injuries rarely presented themselves until several hours after an accident and customers might not complain about short-lived symptoms. The judge had been entitled to conclude that the risk of neck injury was a foreseeable consequence of launching a customer without warning when not braced. It would not, therefore, be appropriate to interfere with her findings of fact in relation to liability (see paras 22-29 of judgment).

(2) The judge had been entitled to make an award of general damages which reflected the claimant's loss of use of his car, despite the fact that the result was an increase beyond the relevant guideline bracket, Lagden v O'Connor [2003] UKHL 64, [2004] 1 A.C. 1067 considered. She was also entitled to conclude that a total general damages figure of £17,000 accurately reflected the claimant's loss of amenity because of the special features of the claim. It was not appropriate to interfere with that assessment (paras 31-38).

Appeal dismissed