All The Fun of The Fair
Lowdon-v-Jump Zone Leisure UK Limited  EWCA Civ586
This case concerned an appeal against an Order in which the Defendant was to pay the Claimant, Mr Lowdon, the sum of £17,000 by way of general damages for personal injury following injury he suffered as a result of riding on the Defendant’s equipment known as “The Hyper jump”.
The Defendant operated two rides known as the Hyper Jump. In the Hyper Jump the rider is strapped into a harness, which fits around the waist and between the legs. On each of the harnesses there is elastic rope. Once the rider is installed in the harness, the rider lifts his feet from the ground and assumes a sitting position, suspended slightly above the ground. The shoulder straps are held in either hand by the rider. The operator counts down before launch and, when the rider signals either by word or facial expression that he is ready for the launch, the operator releases the handle. Once the elastics are released, the rider is propelled high onto the air and bounces up and down for a matter of seconds. It is possible for the rider to perform forward and backwards somersaults whilst in the air.
It was during the Claimant’s second ride on the ride that he suffered injury. The Claimant maintained that he was released without warning while he was looking down and, as a result, suffered an injury to his neck. The injury to the neck is said to have caused a sudden loss of vision resulting from a dissection of the vertebral artery.
At trial, the Defendant was unable to call any witnesses to put forward a positive case as to what happened. The Judge found that the Claimant had been released without warning while his head was down.
The Defendant did not challenge the factual matrix on appeal, but rather contended that releasing a customer who was properly strapped in without warning, while his head was down, could not be negligent in law since it would not be reasonably foreseeable that doing this could cause injury.
APPEAL ON LIABILITY FAILED
The appeal failed. Gloster LJ giving the lead Judgment confirmed that the Judge was perfectly entitled on the evidence before her to conclude that it was reasonably foreseeable that injury would be caused if a customer was launched on a ride without warning. It was noted that the Appellant’s/ Defendant’s argument that 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 the guidelines were intended to reduce the risk of injury. Its original case had been that the Claimant would not be launched without warning and that his head had not been thrown about violently. Expert evidence had been called which directly supported the proposition that there was an increased likelihood of injury being caused if the customer is now warned to brace themselves in the launch.
The Judge went on to find that the parties had not engaged in an assessment of the experiences of other businesses operating the ride in similar circumstances, and the absence of any previously reported injuries and the operation of the ride did not, per se, demonstrate that such injury was not reasonably foreseeable. She held that 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 the 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.
The appeal failed.