Jake Rowley successfully defends ‘The Climbing Academy’ following three-day liability trial in claim pleaded in the region of £800,000
Jake was recently instructed to defend The Climbing Academy, a Bristol based climbing and bouldering centre, in a claim brought by Miss Elizabeth Jones for personal injury and consequential losses.
The Claimant was a novice climber who attended at the Defendant’s climbing centre to engage in bouldering. Bouldering is a form of low level, rope free climbing.
At the beginning of the Claimant’s first climbing session she was advised by the Defendant’s staff to wear a size of climbing shoe that was a ‘size up’ from her normal street shoe size. She was a street shoe size 6 and was therefore provided with, and wore, a size 7 Reflex Scarpa climbing shoe. She used this size of shoe successfully throughout that initial session and during a number of subsequent climbing sessions.
On the 5th April 2014 the Claimant attended for what was her seventh session of bouldering and wore the same size of climbing shoe. She was in the process of climbing a blue ‘problem’ when her right foot slipped from one of the holds and she fell approximately 4 metres, landing on the matting below and badly fracturing her left knee.
The Claimant’s case, in summary, was that the Defendant’s staff members had never advised her, either prior to her first session of bouldering, or at any subsequent stage, of how the climbing shoe should fit on her foot. She alleged that the size 7 Reflex Scarpa shoe was not an appropriate fit and that accordingly she lacked the necessary ‘foot feel’ to properly traverse the blue coloured climbing route’s holds. She alleged that the lack of ‘foot feel’ was the cause of her fall.
Her claim for damages was pleaded in the region of £800,000.
The Defendant’s case, in summary, was that the scope of the Defendant’s duty of care did not extend to imposing a duty to advise the Claimant as to the fit of the shoe, but irrespective, as a matter of fact, the Defendant’s employees had actually informed her as to the appropriate fit on the first occasion that the Claimant had attended the Centre. Moreover, the Defendant argued that the Claimant could not establish that the shoes provided were ill-fitting, nor that they gave rise to a lack of ‘foot feel’ which was causative of her fall, as opposed to any other inherent feature of traversing a climbing wall. A plea of contributory negligence was also pursued.
The matter came on for a three-day liability only trial before HHJ Ralton sitting in the Bristol County Court in August 2018. The Court heard evidence from the Claimant, as well as four members of the Defendant’s staff, and live expert evidence from climbing experts instructed by both parties.
The Court dismissed the Claimant’s claim.
The Judge rejected the Defendant’s argument that its’ staff members had informed the Claimant as to the desired fit of the climbing shoes at the beginning of her first climbing session. He found as a matter of fact that they had told her about which size to use, but not about how those shoes should fit.
On the evidence before the Court, the Judge concluded that the Claimant’s true complaint was not about the ‘snugness’ (or otherwise) of the shoes that had been provided to her, but a complaint that she did not have the relevant ‘foot feel’.
The Judge accepted that advising as to the appropriate ‘foot feel’ constituted a matter of ‘training’. In accordance with authority (including Poppleton v Portsmouth Youth Activities Committee  EWCA Civ 646 and Tomlinson v Congleton Borough Council  1 AC) there was no duty on the Defendant to provide training to the Claimant (the Defendant having simply made facilities available for the Claimant’s use), and therefore any supposed need to advise as to ‘foot feel’ was a matter which fell outside the scope of any duty imposed.
However, the Judge held that in making available and providing climbing shoes to the Claimant, the Defendant had assumed a duty to advise as to size, which included a duty to advise that the shoe should be a ‘snug’ fit.
The Defendant was found to have been in breach of its duty to advise as to ‘snugness’ given the Court’s factual finding that all the Defendant’s member(s) of staff had done was to advise as to what size of shoe to use, and not advised as to how it should have felt on the Claimant’s foot.
However the Claimant’s case failed on causation. The Claimant had not provided sufficiently cogent evidence to establish, on the balance of probabilities, that the shoe provided to her was actually ill-fitting. The Judge explained that he would have expected evidence of how a size 7 Reflex Scarpa shoe actually fit on the Claimant’s foot, and that was entirely absent. Jake had robustly argued during closing submissions that this constituted a ‘fatal lacuna’ in the Claimant’s case.
In obiter comments the Judge also concluded that there was likely to have been a break in the chain of causation in any event, on account of the Claimant having formed, and relied on, her own assessment as to the appropriateness of the shoes she was using during an earlier climbing session. He also indicated that had she succeeded, he would have found the Claimant to have been 40% contributorily negligent for failing to ‘follow up’ with the issues she supposedly had as to the appropriate fit of shoes with either her climbing partner, or a member of the Defendant’s staff.
Jake was instructed by Suzanne Houghton of BLM Solicitors.