Archive | March, 2009

Should you wear a helmet every time you cycle?

March 31, 2009

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Source: http://www.independent.co.uk/news/uk/home-news/outrage-at-ruling-on-helmets-for-cyclists-1645736.html; http://news.bbc.co.uk/1/hi/uk_politics/3563671.stm; http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-law; http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492

 

Read the full case report of Smith v. Finch [2009] EWHC 53 (QB) here: (http://www.ctc.org.uk/resources/Campaigns/0902_Smith-v-Finch-judgment_brf.pdf)

 

 The case of Smith concerns a cyclist (Robert Smith) who was struck and knocked off his bike by a motorcyclist (Michael Finch), while making a turn at a junction. At face value, this seems simply a run-of-the-mill traffic collision case, indeed the exact facts of the incident were disputed and the defendant argued that it was the claimant who was responsible for causing the collision by pulling out as he did. The case is important however because the defendant also argued that in the event that he should be found liable, the claimant should have his damages reduced for being contributory negligent for not wearing a cycle helmet and it is this part of the decision that has provoked the most controversy.

 

After listening to various witnesses give evidence, the court found in favour of the claimant, stating that in all likelihood, the defendant had been driving at an excessive speed and had ridden much too close to the claimant as he tried to overtake him [38]. Ultimately, the claimant also succeeded in rejecting any allegations of contributory negligence as the court found that the mechanics of his head injury would not have been reduced or prevented by a helmet [56]. The court did however suggest that in other cases, a deduction could be made.

 

In particular, the court at [43] stated that: “as it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road.”

 

The court concluded that given the concern of the government and road safety campaigners was to reduce road accident casualties, “the cyclist who does not wear a helmet runs the risk of contributing to his / her injuries” [45] even if the initial cause of the collision was not their fault.

 

Although roundly criticised in the press, at face value, the approach of the court does seem to agree with Dr Julian Fulbrook’s 2004 article on “Cycle helmets and contributory negligence” published in 3 JPI Law 171-191. The article suggests that an automatic 25% deduction for not wearing a cycling helmet was wholly unjustified. Dr Fulbrook did however suggest that there were limited instances where a helmet could have prevented an injury and on these occasions, damages could be reduced by 10-15%.

  

Note the comments though of Martin Porter QC (http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492 /159 New Law Journal (2009) 337) Who argues that Smith departs from the previous High Court case of A (a child) v Shorrock [2001] All ER (D) 140 (Oct) where Judge Brown stated that if he had found liability against the defendant, he would have made no deduction for contributory negligence for failing to wear a cycle helmet as there was no fault: the use of a helmet not being mandatory and the type of cycling by the claimant not being unusually hazardous.

 

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Drunk horse-riders

March 28, 2009

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Source: http://www.foxnews.com/story/0,2933,485348,00.html ; http://news.bbc.co.uk/1/hi/england/tyne/7861406.stm ; http://news.bbc.co.uk/1/hi/england/tyne/7861406.stm

 

Who’d have thought that drunk riding was so popular? You wait all year for a drunken horse-riding case and three come along at the same time!

 

In Cody (Wyoming), 28-year old Benjamin Daniels was charged with public intoxication after slowly riding a white horse along a street during a snowstorm. Police said he was a road hazard.

 

The same month, when 31-year old Maxine Wiltshire was riding her horse around Hemel Hempstead (UK), her horse lost a shoe. Unable to ride him back to the stables, Ms Wiltshire called a relative to pick her up in a trailer. While she was waiting however, she proceeded to drink two small bottles of vodka. Later that afternoon, Police were called to the Greenacres pub in the shopping centre to deal with a clearly intoxicated Ms Wiltshire. Indeed, witnesses stated that when a dog walker asked Ms Wiltshire to steer clear of his pet, she replied: “My horse will eat your dog!” In court, Ms Wiltshire accepted that it was unwise to take the horse into the shopping centre and pleaded guilty to being drunk in charge of a horse in a public place. She was fined £50 plus £50 costs.

 

31-year old Geoffrey Blacklin was also fined for riding while intoxicated. In this case, it was for riding bareback through the streets of Newcastle. He was charged under the 1872 Licensing Act and fined £150  and £35 costs for being caught drunk “in charge of a carriage horse, cattle or steam engine.”

 

On each occasion none of the horses were charged. Although I think this may have been due to their failure to blow into the breathalyzer correctly!

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Cage-fighting: the new alternative dispute resolution for schools

March 27, 2009

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Source: http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/032009dnmetcagefolo.3cd76bd.html; http://www.huffingtonpost.com/2009/03/19/south-oak-cliff-high-scho_n_177180.html; http://www.hsgametime.com/dfw/sharedcontent/dws/content/topstories/stories/022109dnspohssoclede.36c49001.html ;

Read the report here: http://www.dallasnews.com/sharedcontent/dws/img/03-09/0318cagefight.pdf  

According to investigators, between 2003-5, staff at South Oak Cliff High School (based in Dallas) forced students to “duke it out” bare knuckle style in a steel cage while other students clapped and screamed (the “cage” was apparently a section of the boys’ changing room barricaded by wire mesh and steel lockers).

The report was produced by Frank McCammon, an investigator with the Dallas Independent School District (DISD). Ironically, the fighting came to light as a result of a separate investigation into grade-fixing at the school in order to allow students to continue to play for the school basketball team in the 2005 and 2006 seasons. McCammon’s report (first obtained by The Dallas Morning News), describes two instances of pupils fighting in the cage with no head or eye protection, however it was not clear from the report what the extent or duration of the fighting was, or whether anyone required medical attention. In March 2008, the DISD submitted the report to district officials, the Dallas County DA and the police department. Shockingly, no charges were ever brought against school staff as the statute of limitations had run out by the time the cage fights were discovered, although apparently “discipline” (whatever that means?) was taken.

When questioned by the Dallas Morning News, Donald Moten (the school’s former principal who resigned last year following the grade-fixing allegations) denies that any fights ever took place.

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“Asian Football”-factor, okay so it needs a catchier title….

March 27, 2009

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Source: http://football.uk.reuters.com/world/news/LQ282576.php

Following on from an earlier post on Asian Football in the UK, the following announcement has just been made by Chelsea:

Chelsea Football club have just announced that they will be holding open trials at their training ground in Cobham for youngsters from Asian backgrounds in May, with the most talented being offered a three-day residential trial. The trials are open to players in the under-12, 13 and 14 age groups and will be open to London and South-East based players from Indian, Pakistani, Sri Lankan and Bangladeshi backgrounds.

Former Chelsea and England defender Graeme Le Saux said:  “We realise that there is a lack of representation of players from Asian backgrounds within the game and we hope that the competition will help inspire Asian youngsters. We want to show that race is no barrier to joining our club and that opportunities for Asian players do exist.”

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“Guard donkeys” injure horserider

March 27, 2009

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Source:  http://www.tampabay.com/features/humaninterest/article984504.ece ;

55-year old Patrice Curtice is suing Frank Morsani (a 77-year old millionaire automobile dealer) after her first date with Angel Valdez (a former jockey) ended in disaster last June. The pair were horseback riding in Spring Hill when they were attacked by two “guard” donkeys which had escaped from Morsani’s ranch.

 

Apparently, the Donkeys bit at the hindquarters of Curtice’s horse, causing it to rear and flip Curtice onto her back. The horse and donkeys then stomped on Curtice’s back whilst she was on the floor, until her horse bolted and was chased the donkeys. She broke seven ribs, bruised her lungs and her spine and had hoof bruises on her lower back.

 

Curtice is suing for negligence release, caused by a failure to fix the property fence. Morsani on the other hand questions why he has any responsibility and stated that his “fence was cut by somebody and this allowed our livestock to get out. I’m sorry what happened to them … but somebody let our cows out.”

 

Only in America would you have guard donkeys!!!

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Football (buying) Agent loses tribunal case on VAT

March 27, 2009

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Source: Umbro International Ltd v. The Commissioners for Her Majesty’s Revenue & Customs (HMRC) [2009] EWHC 438 (Ch) (http://www.bailii.org/ew/cases/EWHC/Ch/2009/438.html)

 

Umbro (the well known sports clothing brand) appealed against the decision of a VAT Tribunal in February 2008 that rejected its claim for overpaid customs duties on its product. The facts of the case are uncontroversial, rather what was at issue was the interpretation of these facts.

 

The case concerned Customs duty (which is paid on the customs value of imported goods). Under the terms of Council Regulation (EEC) 2913/92 (“the Customs Code”), commission charged by the importer’s buying agent is excluded from the dutiable customs value.

 

Because Umbro only import and sell sport goods, they used a company (PNH Limited) to act as their buying agent from the approved Chinese manufacturers (Dongguan Haiqi Sports Garment Co Ltd (DHS)). They therefore argued that PNH’s profit mark-up should be deducted from the customs value of the final goods. HMRC however rejected this argument and suggested instead that PNH were a principal in their own right rather than an agent and just because Umbro called the relationship an agency, did not make it so [29]. The tribunal agreed with HMRC (although they criticised several aspects of their procedure) and this decision is the appeal.

 

Ultimately Umbro failed to meet the burden of proof and establish that PNH were an agent. Neither the level of risk faced by PNH [38] nor the fact that the commission paid by PNH was a variable mark-up [50] were definitive in themselves, however put together these factors suggested that PNH was capable of acting as a principal in their own right.  

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Equasy – a dangerous new addiction?

March 26, 2009

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Source: http://news.bbc.co.uk/1/hi/uk/7876425.stm ; http://www.dailymail.co.uk/news/article-1138567/Taking-ecstasy-dangerous-horse-riding-says-Governments-drug-advisor.html; http://www.thisisbristol.co.uk/homepage/Ecstasy-row-Professor-says-sorryarticle-687632-details/article.html

 

Read the actual journal article Equasy a harmful addiction with implications for the current debate on drug harms’  here: http://jop.sagepub.com/cgi/reprint/23/1/3

 

Professor David Nutt (Chairman of the Home Office advisory council on the misuse of drugs (ACMD)) sparked controversy last month after comments in the January edition of the Journal of Psychopharmacology where he suggested that riding is at least as dangerous as taking ecstasy, if not more so!

 

Indeed Professor Nutt argued that taking pleasure from riding horses was a ‘harmful addiction’ and led to ‘Equasy’ (Equine Addiction Syndrome). Furthermore because this syndrome was associated with ‘groups engaging in violent conduct’ and ‘serious adverse events every 350 exposures’, it would appear to be more harmful than ecstasy. Although much of the data to support Professor Nutt’s arguments was taken from a previous medical journal on riding incidents, it seems spurious to link all aspects of riding with hunting violence, or early onset Parkinson’s Disease, as was suggested on p.4 of the article.

 

Speaking later, Professor Nutt defended his comments: “I did not intend to offend anyone who had suffered from friends or family being harmed by either riding or ecstasy. However, people should have access to the facts about the harms of whatever they do so they can make informed decisions about taking those risks.”

 

The ACMD also distanced itself from the article, while Jacqui Smith (Home Secretary) strongly criticized the professor in Parliament for trivializing the dangers of drugs and showing insensitivity to the families of victims.

 

While the main thrust of the article was to highlight that riding and other dangerous sports carry inherent risks (often not fully appreciated by participants or spectators) and that these risks are tolerated by society whereas other statistically less dangerous activities are restricted, ultimately this message was drowned by the all too foreseeable headlines. This is a shame as the identification of Equasy raises some interesting questions. At least, I know though that my desire to throw myself around and somersault off various objects is not irrational, but rather a symptom of a deeper psychological illness! Maybe one day there may even be a cure for me…….

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Horse-rider dies on pilgrimage

March 26, 2009

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Source: http://www.horseandhound.co.uk/news/article.php?aid=277210

 

Horse & Hound reports that a 63-year old woman has died after falling from a horse during a pilgrimage in India on Saturday 14th February. She was travelling to the Vaishnodevi Temple in Reasi. What is interesting about this incident is that allegedly local police have launched a case against the man who hired her the horse.

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The name’s Bond, Kevin Bond

March 25, 2009

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Source:  Kevin Bond v. British Broadcasting Corporation (BBC) [2009] EWHC 539 (QB) (http://www.bailii.org/ew/cases/EWHC/QB/2009/539.html)

 

http://www.independent.co.uk/sport/football/premier-league/allardyce-set-for-legal-battle-over-bbcs-bung-claims-416836.html; http://www.guardian.co.uk/football/2007/may/16/newsstory.sport18  ; http://www.telegraph.co.uk/sport/football/2346671/Newcastle-sack-Bond-over-bungs-claims.html

 

The case concerned allegations made in a BBC Panorama programme entitled “Football’s Dirty Secrets” broadcast on 19th September 2006, and in particular the suggestions from covert recordings that the claimant (assistant to the then manager of Portsmouth FC – Harry Redknapp) was willing to entertain discussing the acceptance of an improper payment (bung) from a football agency (note the very careful and tentative language of the Defence that falls short of proving any guilty practice had taken place but rather implies that there is reason to suspect that it had).

 

Although the claimant was only mentioned directly for a few minutes at the end of the programme, the court accepted that the programme as a whole needed to be taken into account to identify the meaning [18]. Given that the whole programme suggested that bungs and corruption was rife in football, the court also held that it was reasonable for a viewer to come to the conclusion that the claimant was being held up as an example of a suspicious participant by his very inclusion in the programme [17].

 

The court did not discuss whether these charges were made out, simply that the programme made them. Instead if the parties fail to reach any agreement, this will be the issue for a full defamation trial. Watch this space……

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New edition of ‘Sport and the Law Journal’ out

March 24, 2009

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Source: http://www.britishsportslaw.org/journal/default.asp

This edition – 16(2) of the journal contains articles from:

 

Matthew Himsworth, ‘Playing with Confidence’ - concerning privacy within sport

Stephen Weatherill, ‘Article 82 EC and Sporting ‘Conflict of Interest': the Judgement in Motoe’ – concerning the recent ECJ ruling on whether sports organisations are immune from European Law (take note FIFA!!!!!)

George Castro, ‘Should the Football Authorities allow Third-Party Ownership’ of the Registrations of Football Players?’ – concerning Mascherano and Tevez

Walter Cairns, ‘Sports Law Foreign Update’

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