Judgments rest on vagaries of 'desirability'

The perception of a compensation culture, which was felt to be inhibiting risk taking to the detriment of society as a whole, was one of the precipitating factors behind the Compensation Bill, which received Royal Assent in July 2006.

Another influence was the House of Lords' decision in Tomlinson v Congleton Borough Council. Here, the council had provided a 'desirable facility', a recreational area with a lake but the use to which it was put - by a youth who, of his own volition and ignoring warning signs, dived into it and was injured as the water was too shallow - was clearly not desirable. Society needed a formula to balance the social value of activities and facilities against the need to protect against the risks.

To counter these concerns, the Compensation Act introduced at Part 1(1) the concept of 'a desirable activity' with the aim of encouraging activities such as school trips, sports events and voluntary work, and protecting those who undertook them.

However, what is a 'desirable activity'? The term has no precedent in statutory or case law, nor had it been defined in the legislation. Inevitably it will fall to the courts to decide how to interpret and apply it, and to decide what is desirable. Should the term encompass facilities, such as the lake in Tomlinson, or just actual activities?

This Part is not, however, designed for defendants to escape liability. The appropriate precautions must still be taken to ensure that activities and facilities are safe. It is the additional steps, which would mean the activity did not occur or the facility was not provided, which are what it aims to address.

Moreover it is discretionary, so a judge may decide it should not be applied. The scope of the Part is not limited just to personal injury claims; it could be applied to any claims that involve negligence or breach of statutory duty, for example a professional negligence claim.

Given the lack of definition, inevitably there are likely to be some - but probably not many - test cases to determine the meaning of 'a desirable activity'. The challenge for defendants will be in selecting the appropriate cases in which to argue that Part 1 should be considered.

Only time will tell whether the Part, the introduction of which was highly contentious, will turn out to have been a desirable act.