23.04.15

Until Someone Loses an Eye

Gavin Goffe
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Until Someone Loses an Eye

This time of year, many businesses plan their Sports Day, Family Fun Day or similar extra-curricular or team-building activities. Where these events take place on a weekend, outside of the office and the staff are not required to attend, it is tempting to assume that the company (or business owner) will not be liable for any accident or injury that might occur. It's all just fun and games after all, isn't it? This might have been the prevailing thinking years ago but more recent authorities suggest otherwise.

Whenever employees are injured, there are two types of liability that a business might face. First, there is Occupier's Liability. An "occupier" has a duty to protect its employees, customers, visitors and, to a degree, trespassers from foreseeable harm that might occur on premises the occupier owns, rents or from which it carries on business. So, if Sports Day is happening at the company's Sports Club, and the receptionist trips over a big rock while doing the three-legged race, she might run to Court to sue the company. Secondly, there is Employer's Liability, which is the duty that is specific to the relationship of employer and employee. An employer has a duty to create a safe system of work and a safe plant, provide adequate tools and equipment and train and supervise competent workers. Employer's liability isn't confined to the workplace, so an employee who is injured, even on an overseas business trip, might claim for personal injury together with the per diem. In both Occupier's Liability and Employer's Liability claims, the employee's suit would be based on their being injured whilst on company property or on company business. It seems, however, that the court may be prepared to extend these boundaries and modify the rules a bit.

In a recent English case, a firm of real estate agents planned an office outing as a team-building exercise and also as a thank-you for staff. It was organised by two partners and took place at a park the firm rented for the purpose. It was scheduled on a normal work day and staff were expected to attend but it wasn't compulsory. The staff were divided into teams and they did a variety of activities including a treasure hunt and a bicycle race. It was during the bike race that one particularly motivated employee, whilst pedaling for the finish line, tried to cut off his co-worker who had the inside track and ended up crashing the bike and sustaining severe head injuries.

Neither of the gentlemen was told to wear a helmet but one of them did. It's not hard to guess who was not wearing his helmet. He sued both the co-worker and the company for negligence. The judge found that even though the accident did not occur within the course of employment the relationship of employer and employee could not be ignored. Both because of the employer-employee relationship, as well as the relationship of organiser and attendee, the judge ruled that the company owed a duty of care to the staff who attended, including the injured Mr Tour de France. The judge found that the partners who organised the outing had done insufficient risk assessment to guard against the foreseeable danger of collision between riders. Most importantly, they had not required the participants in the race to wear helmets. In so doing, they were acting within the scope of their employment on behalf of the firm, which was therefore vicariously liable for their negligence to the extent of one-third of the damage. The claimant was found to have been contributorily liable, to the extent of two-thirds, based on the way he rode the bike and that fact that he ought to have known to wear a helmet.

It would be interesting to see if the judge would have ruled the same way if the outing had not been held on a normal work day and/ or had been characterised as pure fun and games instead of a "team-building" event (connoting there was an intended benefit to the business). One also wonders whether the firm would have been liable if it had not been the organiser. What if, say, it was a Charity Run organised by a third party but with corporate teams? Could the company be liable for injuries to its staff, applying the argument that these Runs are, for some companies, official corporate social responsibility events or perhaps part of their marketing strategy? Normally these events have waiver forms, but don't expect these waivers to protect anyone besides the organiser.

In any case, there are some important notes for employers to take. They should be generally concerned about their workers' health and safety, not merely occupational health and safety. Don't just encourage, but require that safety gear be worn. If activities involve a pool or larger body of water, have a life guard on duty for the entire time. Someone should be trained in the Heimlich Maneuver if you plan to have a bun-eating contest. Or cut the bun altogether. Speak with your insurance broker to make sure you have lime-and-spoon liability coverage. Perhaps require that all staff sign an appropriately worded waiver beforehand, which binds them, their spouses, children, and whomever else is likely to trip and fall in the Guest Race. Hire a paramedic, because nothing shows team-spirit quite like passing out after a close victory. After all, there is no 'I' in "team" – at least not until someone loses an eye.