We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The BBC reported that Mr Asif Ahmed fell from his bike when riding a descent on the Surrey Hills course. His injuries left him paralysed. The basis for the claim was inadequate instruction and supervision by the Defendant.
The judge ruled the instructor was negligent in “encouraging” Mr Ahmed to ride “at speed” down a sharp slope without first assessing his biking skills. The judge added that Mr Ahmed “should have been warned” not to take the most difficult route down the hill.
However, there was a 20% finding of contributory negligence against Mr Ahmed, to reflect his partial responsibility for what happened.
Compensation claims can arise where a person suffers an injury as a result of negligence by another person or organisation. The injured person is entitled to bring a claim against the Defendant if the relationship between the parties meant that the Defendant owed a duty of care to the injured person.
As is seen in this case, an activity instructor owes a duty of care to participants who are under their guidance. Organisations that run activities also owe a duty of care, so charities, after school clubs, scouts groups, social businesses and other organisations promoting sport or physical activity will need to consider the implications of this judgment. The ‘activity’ involved could be anything from cycling to line-dancing; high-wire courses, skiing, canoeing, pony trekking and much more.
It is important that activity instructors and providers are aware of their responsibilities and take reasonable steps to protect those under their care from harm. This is not about the so-called ‘compensation culture’ – the primary aim of such steps is to ensure participants stay safe and enjoy the activity.
The ‘compensation culture’ was directly addressed by the Compensation Act 2006, which was enacted to ensure that people and organisations are not prevented from undertaking normal or desirable activities because of the fear of litigation and excessively risk-averse behaviour. Many activities such as scouts and guides, community projects and social cycling could be classified as ‘desirable activities’. The Act stipulates that two questions are asked before deciding whether the Defendant should have taken particular steps to meet the standard of care: (1) would that step prevent a ‘desirable activity’ from being undertaken at all, to a particular extent or in a particular way or (2) would it discourage persons from undertaking functions in connection with a ‘desirable activity’.
Whilst taking care with the safety of participants in mind is not just about compensation and litigation, it could well have the secondary benefit of protecting the provider from legal action if someone is injured.
Charities, local community groups and other organisations promoting physical activity, must balance the need to ensure safety against the risk of discouraging people from participating in activities that are enjoyable, and may be enormously beneficial to health. Striking the right balance requires a clear understanding of the legal context so the leadership team can make informed decisions.
For more information regarding the support we can offer to organisations promoting sport and physical activity, please contact Shivaji Shiva.
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