Vicarious liability is not always a safe route

The Court of Appeal's decision in the Jagged Globe case has effectively ruled that the adventure company is not vicariously liable in respect of two 'staged' stunts.

A few weeks ago I found myself with a group of students climbing to altitude point 642 on the ascent up Pen-y-fan in the Brecon Beacons.  Many of you will no doubt be familiar with the area.  There were another two tutors present as well as a qualified mountain expedition leader.  We made it safely to the summit despite a sudden hail storm and strong winds.

Of course our expedition was not on the same scale, but I have just heard the Court of Appeal's decision in the Jagged Globe case, concerning an expedition led by Sir Ranulph Fiennes. The decision effectively ruled that the Sheffield-based adventure company, which had laid on guides for Sir Ranulph Fiennes' trip to Ecuador in South America in 2004, were not vicariously liable in respect of two 'staged' stunts which were alleged to have been 'instigated' by Sir Ranulph in order to create some exciting film footage. 

The stunts included appearing to fall down a crevasse on a glacier and another fall during a roped climb.  The Court of Appeal overturned the earlier finding of liability in favour of a Miss Harrison against Jagged Globe.  The basis of their decision seems to be that they found that the execution of stunts did not form any part of the agreed contractual package with Jagged Globe.

The Court were not satisfied that the company owed a duty of care to Miss Harrison, who had been injured in performing the stunts.  The Court were also not satisfied that the company were vicariously liable for the actions of the guides.  At one point, Lord Justice Pitchford, with no pun probably intended when speaking of the original trial decision, said that 'He (Judge Freeland) did not go on to identify by what route, if any, Jagged Globe could be responsible for the negligence, if any, of the guides.   He seems to have assumed that the company was vicariously liable.......'

Lord Justice Pitchford, sitting with Lord Justice Laws and Mr Justice Lloyd-Jones, went on to say "When a person is perfectly well aware of the risk they are taking, the defendant doesn't owe such a duty. The activity in which Miss Harrison agreed to become involved had been no part of the itinerary for the purposes of the contract.

"There was no contractual duty to prevent her partaking in the stunts. I do not consider that Miss Harrison established a duty to protect her from the risks of non-authorised activity."

The case seems to serve as a timely reminder that certain activities involve, by their very nature, a degree of risk and that acceptance of risk as well as circumstances that can arise will negate a duty of care and in turn vicarious liability in tort.

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