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The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

June 20, 2014

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Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

  • The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under
  • The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)
  • The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.
  • The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries – http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt).  The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

  1. A full parliamentary enquiry into concussion in sport
  2. A coherent set of concussion protocols covering all sports
  3. Independent peer-reviewed research into concussion and British sport
  4. Better co-ordination between sports, schools, colleges and doctors
  5. A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue  (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

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Why Lloris’ head injury was so severe that even the FA and Tottenham lost consciousness…

November 6, 2013

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brain

Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.

This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.

 

WHAT HAPPENED

Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.

After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.

 

SO WHAT NEGLIGENCE LIABILITY EXISTED?

While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.

What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:

  Watson Lloris
No player liability for the initial blow Eubank punch Lukaku challenge
No referee liability Referee stopped fight correctly Referee stopped game correctly
Rules of the game were followed BBBC rules on medical treatment followed At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules Neurosurgeons attacked the BBBC rules pre-watson incident Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby

 

If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:

 

The Medical Professionals from the Club, and/or the Manager

Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries [6]:

All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”

Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:

Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”

and further on that:       

“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”

The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,

If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”

Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:

“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”

This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.

The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:

“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”

Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?

If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.

  

The FA / Premier League Rules.

Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.

Indeed, just as the Court of Appeal held in Watson that:

“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” [121]

So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.

Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?

As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.

  • For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered. 
  • Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
  • Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”

What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.

 

Recommendations

This article would suggest four actions need to be taken urgently:

  1. The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
  2. The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
  3. The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
  4. Consider whether independent medical teams should have ultimate decision-making authority over clubs.  Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.

Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….

 

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In Loco Scholam: Analysing Woodford v. Essex County Council (and others) [2013] UKSC 66

October 25, 2013

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Link to the full Supreme Court Judgment

Glancing quickly at the 13yrs since the initial swimming accident, you may be forgiven for thinking that Woodford v. Essex CC contains more history, politics, drama and civics than physical education. Indeed, it is perhaps somewhat surprising that despite Wednesday’s Supreme Court ruling, 4 other trials and 2 Health & Safety Executive reports, the case is still only in its initial stages! However delve a little deeper and this somewhat tangled web belies the case’s considerable importance for determining and apportioning negligence liability through primary or non-delegable duties.

The infographic below may help clarify the current litigation (Click here to download as a PDF version): Woodlands

What happened?

At its core, the case concerns ten-year old Annie Woodland, who suffered a serious hypoxic brain injury while taking part in a school swimming lesson on 5th July 2000.  As part of their National Curriculum obligations, Whitmore Junior School had contracted with Beryl Stopford (trading as Direct Swimming Services) to provide swimming lessons for their pupils at the local pool in Essex. Mrs Stopford in turn assigned two employees to deliver the lesson and be present as a lifeguard. The class was streamed into two groups, with the claimant (Annie) swimming with the more experienced group from the deep end into the shallows. Tragically, during the lesson, the claimant got into trouble and was found “hanging vertically in the pool” and in need of resuscitation.

The case arises because the exact nature of who found her and the quality of the supervision leading up to this point has yet to be determined by the courts and as such is fiercely disputed by the parties. In the meantime, both parties are arguing about what duties are owed rather than establishing the facts.

  1. Round1 (Claimant 0 – Defendant 1): Originally in 2007, the solicitors for the 1st Defendant – The Swimming Teachers Association (the trade body that provided insurance for both Mrs Stopford and Ms Maxwell) admitted full liability for the incident. However in 2009, when new solicitors (Fishburns) took over the case, Fishburns immediately retracted this admission, leading to litigation on whether an admission of liability pursuant to CPR r.14.1A(5) could be retracted? (the Court of Appeal subsequently held it could, particularly in the interests of justice, and the CA judgment contains a good summary and analysis of the factors that would need to be considered).
  2. Round2 (1-1): Perhaps emboldened by this conclusion, Essex County Council tried to argue that responsibility lay solely with the STA for the alleged negligence, as there was no direct vicarious or employment relationship between the school and the ‘independent contractors’ (Mrs Stopford, Ms Maxwell and Mrs Burlinson). By contrast, the claimant argued that the school had a ‘non-delegable’ duty of care towards its pupils.

 

Non-Delegable duties 

Both the High Court (Langstaff, J) and the majority of the Court of Appeal (Tomlinson & Kitchin LJJ, Laws LJ dissenting) stated that the education authority did not owe a ‘non-delegable’ duty, indeed the Court of Appeal suggested that they were:

“precluded from recognising the non-delegable duty of care for which the Appellant has argued on this appeal….[given] the imposition of such a duty would have significant implications not just for all education authorities but also for all those who operate schools and hospitals…” [33]

The recent decision of the Supreme Court overrules this and Lord Sumption (giving the leading opinion) summarises non-delegable duties at [23] as applying where:

  1. The claimant is especially vulnerable and/or dependent on the protection of the defendant against the risk of injury

  2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which places the claimant in the actual custody, charge or care of the defendant, from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

  3. The claimant has no control over how the defendant chooses to perform these obligations, i.e. whether personally or through employees or through third parties

  4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

  5. The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

 

Implications

While Lord Sumption may have queried that:

“It must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation.” [2]

echoing Lord Justice Tomlinson’s earlier perceptive comments in the Court of Appeal that:

“If it is, the authority’s admission that the class attended for a swimming lesson at the pool under the control and supervision of the Second Defendant’s servants or agents may not tell the whole story. There would be scope for enquiry as to the extent to which the class in such circumstances remained in the care of the teacher from the school. The notion that the authority by its employees had no control over the manner in which the swimming lesson was conducted or supervised may be wholly unreal. The circumstances may be such that it is quite unnecessary to be searching for a non-delegable duty in order to impose liability upon the authority.” [36, CA]

The judgement does have important policy implications for schools and other providers. Interestingly, it appears that in practical terms, the law has finally caught up with what teachers and education professionals have been preaching for years, namely that schools should be ultimately responsible for the safety of pupils.

Indeed, guidance from AfPE (Safe Practice & Physical Education, (2012) [3.4.26]) in relation to the earlier CA decision stated that the (2012) judgment,

“does not alter a school’s continuous duty of care to students where activities take place on site, whether delivered by a teacher or support staff, such as a visiting coach, because the workforce regulations demand that the coach is managed by the teacher so the teacher maintains responsibility even though someone else teaches the class.”

What is now clear from the Supreme Court judgment is that schools utilising specialist coaches or support staff to deliver aspects of the National curriculum may retain a liability that goes beyond performing initial recruitment and suitability checks for the role, and is akin to a ‘non-delegable’ duty to protect the safety of the pupils regardless of whether any contractual or employment relationship existed with the provider. Importantly, this duty extends to activities performed off-site, by non-teachers, unsupervised by any school staff, as long as the purpose of the activity can explicitly be linked to traditional school or national curriculum obligations.

Lady Hale argued at [42] that this was not as big a policy change as it might look:

“large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable.”

In making this statement, Lady Hale is explicitly countermanding Lord Justice Tomlinson’s suggestion from the CA judgment that:

“The days are long gone when we ignored the incidence of indemnity insurance. One would expect the costs charged to the Fourth Defendant [Essex CC] for the service provided by the Second Defendant [Beryl Stopford] to reflect the cost of the Second Defendant arranging adequate insurance. The only purpose of the present appeal is to ensure that liability is brought home to a defendant with sufficient resources to meet the possible award.” [34, CA]

Lady Hale’s approach seems much more legally justifiable and more accurately reflects the purpose rather than the delivery mechanism of the activity. Lady Hale also suggests that this reasoning is more likely to be accepted by “the man on the underground” [29] (it would seem that riding on omnibuses is so 20th century!)

That said, Lord Sumption was careful to limit the extent of this liability, suggesting at [25(3)] that schools:

“Are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions…..They will not be liable for the defaults of independent contractors providing extra-curricular activities outside of school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours…”

Of all the areas of the judgement, this latter section gives the most potential for future litigation, as potential claimants will no doubt argue that an educational field-trip during the school day could be equated to a core function. Whether it will or not, is ultimately a question of fact, (and possibly irrelevant given the presumed concurrent vicarious liability of school staff accompanying the pupils). In theory at least though, this principle is an expansion of liability that education and healthcare providers would be well advised to note.

In conclusion, the Courts may have rightly disregarded the oft-cited loco parentis as unhelpful, given the very different responsibilities of parents and schools, however I would suggest the legacy of the Supreme Court judgment is to create a new maxim: in loco scholam (in place of the school), let’s see if that catches on……

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Slippery when wet: Robert Wilson v. GP Haden t/a Clyne Farm Centre [2013] EWHC 229 (QB)

February 25, 2013

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Read the full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/QB/2013/229.html

The claimant (Robert Wilson) received £167,514 damages from the High Court for a lumbar vertebra fracture sustained while sliding down a fireman’s pole from an obstacle course on 4th August 2009. He alleged that the defendant’s adventure activities centre had breached their duty towards him in negligence and under the Occupiers’ Liability Act 1957 through both the actions (or more accurately omissions) of the instructor and through failing to provide an adequate safety system to cushion his landing from the obstacle. Ultimately he only succeeded in the former, but the case is interesting for the causative reasoning.

 

BACKGROUND

The incident occurred during the final dismount of the “Burma Bridge” section of the ‘Challenge Valley Course’. This course had been in operation for the last 20 years without serious injury and had been used by an estimated 300,000 people. It was set in a wooded area of the Defendant’s centre and comprised 16 obstacles of varying difficulty. The “Burma Bridge” obstacle was in three sections, an inclined log with footholds leading to a wooden platform set in the trees. From here, participants made their way across a rope bridge to a platform set in a second tree from which they then dismounted by using either a vertical scaffold pole or a ladder.

On paper, there is no allegation that the obstacle, activity or centre was inherently unsafe, indeed the ‘Burma Bridge’ was rated by the defendant as having a risk of 3 (for both likelihood of risk occurring and severity) on the traditional five part scale, and while the defendant had identified a number of contra-indicated groups (children under 10yrs, participants with certain special needs etc), the claimant was a 46yr old part-time scout leader, who had already completed the first obstacle (a 6ft log wall) without undue difficulty. Although there is evidence that he didn’t see himself as particularly athletic and had made self-deprecating jokes about being a “fat taxi driver”, there is no suggestion that he was not capable of safely navigating the course with the other 11-12 scouts attending the centre as part of a camp.

Clyne Farm Centre was a member of the British Activities Holiday Association (BAHA) and subject to their BAHA Code of Practice. There is evidence that they had undergone internal and external safety inspections and sensible risk assessments and instructor training notes had been produced in advance of the accident. At the time of the incident, an “occasional” instructor (Miss Haines) was accompanying the group to demonstrate and explain each obstacle. No criticism was made of Miss Haines’ qualifications or experience.

The key question facing the Court was whether these Codes and documents were appropriate and/or followed at the time of the incident?

 

INSTRUCTOR FAILURE

On the day in question, the weather was wet and there had been heavy rain the night before. This was important as the Court heard how this increased the slipperiness of the pole, resulting in a number of dismounts that went faster than the participants were expecting. The Court held that Miss Haines did give two warnings about the weather conditions (once at the start of the activity [26] and repeated again during a demonstration [31]). The Court however rejected her evidence that she had given a third warning just before the dismount down the pole, as this was contradicted by her oral evidence [117].

Indeed, Mrs Justice Swift DBE was highly critical of Miss Haines’ “fanciful” evidence [114], preferring instead that of the claimant and the witnesses [110-113]. This was an important conclusion as Miss Haines had tried to argue that the claimant was the author of his own misfortune by showing off and deliberately letting go of his hands while sliding down. The Court however forcefully rejected this account [58].

The allegations of a breach of duty by Miss Haines can be summarised into two specific areas:

  • Failure to demonstrate, or properly instruct the correct technique to be adopted when descending the fireman’s pole.
  • Failure to offer the option of using a ladder to descend

The other suggestion raised, that Miss Haines failed to ensure that the Claimant had a good grip on the pole or had been stabilised as he moved to the platform, was later dropped following evidence that any attempt to support the weight of the participant would have been unsafe for both parties [145].

It is perhaps more straightforward to tackle the latter area first. The Defendant risk assessment and training notes specifically stated that all participants should be given the option to descend via either the firemen’s pole or a ladder located alongside the platform [14]. While the Court held that Miss Haines had failed to explicitly offer this choice of alternative methods, it was probable that the claimant would have continued to use the pole (despite his express oral evidence to the contrary being rejected as having the benefit of hindsight) [146].

By contrast, the failure to demonstrate or instruct the correct technique is potentially more complex. Importantly, the Court accepted that there was not an absolute need to perform a demonstration for every obstacle, rather the nature and substance of this briefing was a discretionary judgment by the instructor taking into account the risks and the group experience [135]. The problem in this instance is that Miss Haines did not adapt or review her briefing to match the group.

Miss Haines concluded that the method of sliding down a firemen’s pole was so obvious that it did not need either a demonstration or further instructions beyond that participants should grip it tightly [125]. To a certain extent, the competent performance of the younger children confirmed this [37]. Unfortunately, the claimant was not a young child and had no experience or knowledge in how to slide down the pole [20]. It is not challenged that the accident was caused because the claimant ultimately did not wrap his legs around the pole to slow his descent [125], the question is whether the instructor should have given clear and specific oral instructions, or performed a demonstration, or some combination thereof? Somewhat surprisingly, the defence team did not introduce any additional evidence on this point from any other instructors at either the Centre or in the wider industry as to what they felt was appropriate or what their practice was [139]. This seems a curious omission.

Ultimately at [144], the Court seemed content to leave this choice of methodology to the instructor’s professional opinion, what is clear however is that given the importance of ensuring that there was an instructor accompanying the group and advising on the safe way to navigate the obstacles, this omission to provide ANY advice constituted a failure to exercise proper care, compounded by the lack of adaptation for older participants [140-144].

 

SOFT LANDINGS

The other limb of the claimant’s case is that the defendant had failed to provide appropriate shock absorbent material (for example loose particulates like woodchip, or bark) to reduce the risk and/or severity of any injury caused by impact with the ground. This was important as the Court accepted that the Claimant descended the pole at quite a speed with “his bottom taking most of the impact on landing” [49].

The Court heard evidence on this issue from two expert witnesses, Mr Andrew Petherick (claimant), Mr William Mackay (defendant) who conducted a joint inspection of the accident site on 16th March 2012. Although this 2012 examination of the site was potentially compromised by earlier excavations (not notified at the time to the claimant) which had been requested by the defendant’s initial expert (Mr Alan Preston) to refute whether the base of the pole was made of concrete [78], the Court did accept that the defendant merely complied with the requests from his expert and there was no intention to deceive [87]. Good practice would however suggest that experts in this area are made aware of their responsibilities to the court process.

The Court also discussed at length the specifications provided by various British and European Standards (BS EN) on the type and depth of materials for play:

  • BS 5696 ‘Play equipment intended for permanent installation outdoors’ (1976)
  • BS EN 1177 ‘Impact absorbing playground surfacing’ (1997)
  • BS EN 1176 ‘Playground equipment and surfacing (2008)
  • BS EN 15567 ‘Sports and recreational facilities – Rope Courses’ (2007)

While there was some dispute as to whether these standards applied to this case, and if so, to what extent, ultimately though, this proved to be somewhat of a red herring. Although technically the BS EN standards did not have retrospective effect, the BAHA Code of Practice stated that “the operator must be able to demonstrate that the course meets current standards” [Appendix 7]. As such, the BS EN standards should be used as guidance as to what is appropriate [149]. Interestingly, there is no question that the defendant was not aware of the requirements of the standard, as he had been on the working party to initially devise it! [150]

So, what were the specifications? The interpretation of the relevant standards centred around two key phrases [68]:

Critical fall height – “The height from which is assessed a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury”

And the

Maximum free height of fall - “The distance between any accessible part of equipment intended for play and the surface underneath”

From these two distances, it was possible to calculate the necessary minimum particulate depth for the landing area. The latter free height of fall determination was also important, because if the height had been greater than 3m, the defendant would have been in breach of BS EN15567 which required a braking device to be used. Three alternative formulations of calculating this height were discussed [100]:

  • from the seated position on the platform – 3.1m
  • from the top position of the hands in a hanging position (which would have been greater than 3m). This was Mr Petherick’s preferred choice as it represented a worst case scenario [101]
  • from a climbing position – Mr Mackay’s preferred choice, which according to Table 2, para 4.2.8.1 of BS EN 1176:2008, this distance is calculated from a maximum hand support (3.5m) minus 1m (which would result in a fall height of 2.5m)

The Court held that this latter figure was correct, thereby negating the need for a braking device. Ironically, while Dame Swift was critical of Mr Mackay’s understanding of the fall height calculation [105], it would seem that she has similarly erred in her calculations in [153] that the depth of particulate should be 250mm, as this omits the additional 100mm required by the table to allow for particulate displacement. Surely the correct depth value should be 350mm?

When this calculation is combined with Mr Petherick and Mr Mackay’s joint statement [72], this error is not critical, as the statement clearly identifies five areas of agreement that the impact attenuation area should be:

  • 300mm deep with an additional 100mm to allow for displacement of the particulates
  • The minimum dimensions of the landing area beneath the pole were laid down by BS EN 15567 and should have been approx. 1.38m (depending on the final agreed fall height)
  • Lined with polythene (terram) to prevent impregnation of the landing area by soil or water
  • Should contain no hard objects such as tree roots
  • Should be regularly raked / dug up to avoid compaction

The reality for Clyne Farm is unfortunately a catalogue of errors, with none of the above requirements being met:

  • Particulate depth was only 150mm
  • The distance from the pole to the nearest edge of the tree was only 0.77m [90]
  • There was no terram lining [92]
  • Substantial tree roots were visible below 150mm in the landing area [91]
  • The contemporaneous photograph of the landing area appeared to show heavy compaction in the vicinity of the bottom of the pole [94]

It is a fairly easy jump from this conclusion to establishing a breach of duty to provide a safe landing area. Surprisingly though, the case then came to a sudden stop. When proving causation, the Court rightly held that it was necessary to prove whether the “failure to provide adequate impact attenuation caused or materially contributed to his injury?” [158]

The problem for the Court is that it was not enough to state that there was a breach, rather the claimant also had to establish a causal link showing that proper impact attenuation surfaces would have protected against or reduced the severity of his injury. The failure to introduce any expert medical or technical evidence to support this, left the court with no choice but to dismiss this part of the claim [165]!

To a certain extent this is an unsatisfactory situation. It is also somewhat difficult to reconcile with the other part of the claim for instructor breach of duty, because if the woodchips had been compliant with the relevant standards, then this could have been used as a defence against the injury. As it is, we are left with the situation that the breach of duty to instruct ‘caused’ the injury (the falling uncontrollably) while the lack of suitable impact attenuation surfaces (the heavy landing) were held to also be a breach but not necessarily causative. I’m confused, isn’t it the landing that hurts not the falling?

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Coroner’s Inquest into Search and Rescue Death

December 7, 2012

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On November 24, a coroner’s inquest into the death of search and rescue volunteer Sheilah Sweatman released its recommendations. Sweatmen drowned while trying to recover the body of a woman in a vehicle submerged in the Goat River, near Creston, BC (click here for the CBC story).

A documentary TV crew working on a series on SAR filmed her death. The footage was shown at the inquest but has not been made public. The video shows that after Sweatman connected a steel cable onto the submerged vehicle, the vehicle shifted and moved downstream causing Sweatman to be bucked off the raft and her leg entangled in the cable. Sweatman struggled to keep her head above water for more than five minutes. SAR volunteers tried to row to her and swim to her and give her a rope.

Sweatman’s brother had harsh criticism saying there was no heroics, just a bunch of complacent witnesses standing around.

The coroner’s inquest recommended to Emergency Management British Columbia (EMBC) and the British Columbia Search and Rescue Association (BCSARA) the following:

1. That Emergency Management British Columbia (EMBC) expand the existing Swift Water Task Force to include members of search and rescue operations as well as the RCMP, B.C. River Guides Association, B.C. River Outfitters Association, WorkSafeBC and any other appropriate stakeholders.

2. That EMBC and the B.C. Search and Rescue Association (BCSARA) develop universal standards for swift water rescue and recovery training to ensure consistent language and training applications. These universal standards would require all swift water training providers to conform to these prescribed standards.

3. That EMBC and BCSARA develop universal standards for swift water rescue and recovery equipment.

4. That an audit be conducted of all Search and Rescue (SAR) communities to ensure that each SAR community has the required equipment (including personal protective equipment) and training for their respective communities based on their unique areas. Where it is determined that there is a lack of the required equipment and/or training for that area, immediate consultation with BCSARA and EMBC must occur to determine steps to obtain the equipment and/or training with the goal of safety of all SAR members in BC.

5. That EMBC review and evaluate funding models to better support SAR operations, training and equipment similar to Volunteer Fire Departments’ funding.

6. That Swift Water teams use only their own equipment during search and rescue operations whenever possible. If any unfamiliar equipment is introduced into a task, a proper risk assessment must be completed. The appropriate tools for self rescue and companion rescue must be immediately accessible.

7. That the Volunteer Policy and Procedures Manual specifically the policy for “Utilization of SAR Volunteers for SAR Activities Policy” be reviewed by EMBC to clarify and amend, where required, the roles and responsibilities of varying agencies involved in SAR activities. These groups include, but are not limited to SAR, policing agencies, Coroner, Parks Canada, BC Ambulance and Fire Services.

8. That during an operation, a specific Safety Officer be designated whenever possible. This Safety Officer’s position will be their sole function.

9. That EMBC with the assistance of the SAR stakeholders develop a standardized risk assessment tool for use in Swift Water operations.

In my view, most of the recommendations miss the point and are moot. While a coroner’s inquest is not charged with determining fault, these recommendations largely avoid identifying the factors which caused or contributed to Sweatman’s death. Many of the recommendations are neither novel nor new. As BCSARA president Don Bindon – who I had the honour of working with in SAR in the late 1990s while he was with the RCMP – acknowledged as much in saying, “They are not foreign to us at all. We are implementing some of them already and we’re going to implement the rest to the best of our ability.”

The biggest thing though is Recommendation 6 which stated that the appropriate tools for self-rescue and companion rescue must be immediately accessible.

Combining the above recommendation with the maxim in SAR that search and rescuers not be unnecessarily exposed to risk – which in the circumstances of a body recovery where the sense of urgency is minimal ought to mean that the risk exposure should be very low – clearly shows that something went terribly wrong.

Search and rescue is inherently dangerous. Approximately 6 volunteer (unpaid professional) search and rescuers have tragically died in training or missions in BC in the last 20 years; this averages to 0.3 fatalities per year.

Search and rescuers are true heroes that deserve our gratitude. Their professionalism, technical expertise and tolerance for risk are unparalleled. Our thoughts and prayers go to Sheilah Sweatman’s family and friends and to the Nelson Search and Rescue Group.

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Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided

March 21, 2012

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While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html

The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.

While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.

Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.

While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The  defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.

The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:

“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”

The Court also held that the instructor should have:

  • Been aware that there had been previous injuries sustained historically from other climbers
  • observed that the people P was climbing with had also jumped from the wall, prior to P’s injury

This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.

While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.

It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?

If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.

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The real risk in extreme sports

February 6, 2012

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The Vancouver Sun published on February 1st an op-ed piece about risk in extreme sports (click here for the article) that I wrote with Jeff Jackson, a professor in the Outdoor Adventure Program at Algonquin College in Pembroke, ON. Here are a few excerpts:

—–

It has been interesting to observe the amount of media coverage assigned to Sarah Burke’s crash while training on the superpipe in Park City, Utah, her hospitalization and subsequent death on Jan. 19. The accident was splashed on the front pages of newspapers and given considerable air time on the news or sports shows daily.

…..

Events such as this are an awful reminder that the risk so cavalierly discussed in the abstract is real and the consequences of it being realized can be fatal.

That Burke died is tragic, but not unimaginable.

…..

Spectators at home or on the slopes watch sports like downhill skiing or superpipe to see super fast speed or spectacular flips, twists and jumps. But we also can’t help but wonder and ask if the public and event organizers of extreme sports also secretly wish for crashes because it makes for great TV — just as long as the athlete walks away without severe injury.

But how can this qualification be made? Any sensible person should be aware that skiing at 150 km/h or hucking huge air on a six-metre superpipe must carry with it the risk that someone could get really wrecked.

So why do we act surprised? Maybe the collective, almost cathartic outpouring of grief in response to Burke’s death is a substitute for subconscious guilt at enabling this to happen.

…..

Extreme sport used to be the domain of the lunatic fringe. Those who participated had their own personal reasons for performing high-risk activities. Now, however, extreme sport has become mainstream and usurped by corporate interests giving rise to the X-Games and inclusion of high-risk sports in the Olympics. Some athletes are getting rich in the process. Snowboarding superstar Shaun White earns about $8 million a year in sponsorships.

There is a fear the adventure and extreme sport community is being adversely affected by “big business” whose representatives coerce extreme athletes into taking risks they’re not ready or equipped to take.

At issue is the perception athletes at the leading edge of risk are making decisions motivated by bling or profit rather than strictly based on a dispassionate and rational assessment of the situation.

Unspoken in the discussion is that a free-market economy is based upon risks and rewards. What some people find offensive is that this fundamental premise grounded in competition is now being applied to extreme sport and adventure. That rather than climbing a mountain for intrinsic reasons — ‘because it’s there’ — instead athletes are performing outrageous and high-risk stunts because that’s what it takes to win or a sponsor demands it. And there’s nothing wrong with that.

In a free society, we are able to make our own decisions, whether as a Wall Street broker trading in derivatives living in a Manhattan penthouse suite, a ski bum living out of a VW bus, or an extreme athlete operating at the edge of what’s humanly possible. So long as we go in with our eyes wide open, fully aware of what we’re getting ourselves into. It also means we live with the consequences of those decisions whether it’s fame or fortune or life and limb.

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Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

January 11, 2012

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The case of Sara Hobbin v. Vertical Descents seems eerily related to Jon’s earlier post on Heli-skiing (http://sportslawnews.wordpress.com/2012/01/07/perspective-and-probability/). Essentially this case concerns a head injury to a novice participant in a 2007 Canyoning activity in the Lake District.

Miss Hobbins (the claimant) and her then partner (Geraint Grace) had aimed to climb Ben Nevis, but wanted another activity to do the day before their climb. After reading an advertising leaflet for Vertical Descents Ltd (the defendants), they settled on Canyoning – “a method of descending canyons, streams, ravines and other water-courses by means of sliding, jumping and scrambling.” [2]. Indeed, Vertical Descents Ltd were an experienced outdoor activity company and had been the first company in Scotland to offer the activity.

After attending a safety briefing and signing a disclaimer form, the participants were given protective clothing (wetsuit, buoyancy aid and helmet) and driven to the easiest of the canyoning routes used by Vertical (Allt Gleann A’chaolis, near Kinlochleven).

The key problem for Miss Hobbin can be traced back to her failure to maintain her footing and balance during the activity. Initially, the Court heard how she was concerned prior to embarking whether her choice of footwear would be suitable (she wanted to wear baseball shoes in order to keep her hiking boots dry prior to the proposed climb the following day). At Vertical’s headquarters though, an instructor confirmed that this would be acceptable as the soft baseball shoe sole would enable them to establish “maximum contact with the surfaces” [7]. Sadly during the activity, this grip did not seem to help her. She became bogged down in marshy ground on the ascent [12], and slipped and fell in the water during the descent [14].

Ultimately the injury occurred when Miss Hobbin declined to make a jump of about 15ft into the water and was making her way down to a lower level to meet up with the rest of the group. As she was descending, she subsequently lost her footing on the rocks and fell, striking the back of her head. After a short period of time, the claimant was then assisted down the hill by her partner and an instructor and taken to hospital for observation.

In the Scottish Outer House, Court of Session, both parties argued that the claim depended on identifying the exact rock that the claimant was standing on, the Court however took a much broader view and focused on two main points:

1)      Whether the claimant should have been allowed to do the activity given that the descent was inherently risky and the claimant had been struggling with the ascent [26]. The Court however saw no reason why the claimant was unable or unwilling to continue the descent and this claim was struck out.

2)      The general credibility and reliability of the evidence as to how the accident occurred [34]. While Miss Hobbins credibility was not in question, the Court felt that her tiredness and inexperience with the topography of the canyon was not as reliable as that of the instructor (Graham Reid), who was well qualified and experienced, had led approx 80-100 canyoning trips [12] and was very familiar with the terrain and layout. As such the claim was dismissed and no liability found.

RISK

What is particularly interesting about this case is the discussion on perception of risk. Encouragingly, the Court relied on the dicta from Scout Association v. Barnes [2010] EWCA 1476 [34] acknowledging that it was not the function of the law to deter normal leisure activities. The Court also noted a number of points emphasising Miss Hobbins’ informed consent about the nature of the activity, in particular that she had:

  • Read Vertical Descent’s description of the activity (website / advertising literature)
  • Read and signed a disclaimer form for the activity which specifically highlighted the risks and nature of the canyoning [8]
  • Been given information by course instructors during a safety briefing and had been given the opportunity to ask questions
  • Been required to wear safety clothing (including a helmet)
  • Observed the site herself when she had reached the top of the ascent
  • Self-evaluated her own competence to perform the activity

Although the Court seemed approving of the claimant’s expert witness (Mr Barton) when he said that “it was the duty of an adventure company to keep risks within a tolerable level”, it did note that it was difficult to determine what constitutes the right measure of tolerance [31]. And while it is obiter in this case, therein lies the key to outdoor and adventure liability – what level of risk is acceptable? Should we have different tolerances for guides and paid clients, to hardy adventurers wishing to challenge their own limits?

As Jon’s last post foreshadowed, what is however difficult to reconcile is the perception that outdoor adventure activity is comparatively harmless:

  • At [4], the Court heard how Vertical’s website stated that “canyoning is a safe, fun and enjoyable activity for people of all ages and levels of fitness”
  • Throughout her evidence, the claimant repeated that she thought that the activity would be safe [31]
  • Mr Barton stated in cross examination that “persons on canyoning ‘taster days’ don’t want to be doing anything more risky than being on the High Street” [32] (although I suppose this depends on which High Street at what time of night!)

As Erin Langworthy’s recent Bungee Jump into the Zambezi River showed, the trouble with probabilities are that sometimes those rare accidents do happen. Is the solution therefore to ensure that consent to outdoor or adventurous activities becomes more akin to medical negligence where every material risk and percentage needs to be disclosed, or is it more akin to rugby – where consent is implied from mere participation in the activity?

The problem is that Leap of the integral of the random variable with respect to its probability measure just doesnt have the same catchy ring to it as ‘Leap of Faith’!

http://www.youtube.com/watch?v=VxkY0GGNVMM

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Perspective and Probability in Heli-skiing

January 7, 2012

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I was interviewed on Radio NL 610 AM late last week in regards to two avalanche fatalities in the final days of 2011. Part of my message was that while these deaths are distressful, some perspective is in order. For example, there were four shooting murders in the four days after Christmas in Surrey, BC, just three hours west of where I live. Further, there are approximately 400 drowning deaths a year in Canada. Some have argued (as did my interviewer in an earlier editorial) that the answer lies in the regulation, legislation and criminalization of the behaviour (ie. reckless skiing, boarding or sledding) which gives rise to these deaths. I believe that many people who pursue such activities balance the risks and make informed decisions but I also acknowledge that some go in blind with little real skill and are essentially playing Russian roulette. The bottom line for me is the right of recreationists to take risks and make mistakes – even if it costs them their lives. The ‘solution’ (assuming there is a problem) is not to legislate or criminalize but to educate and hope that good and safe decisions are made.

The second avalanche fatality involved a client with a commercially guided heli-ski operation. According to a piece in The Globe and Mail (click here to read the article), what I found interesting was Canadian Mountain Holidays Inc. lawyer Marty von Neudegg’s efforts to brand heli-skiing in the aftermath of an avalanche fatality as a “wilderness experience sport’ rather than “extreme sport” which almost makes it sound like he’s selling safe heli-skiing. He comes closer to the edge in acknowledging that risks exist but the inconvenient truth is that heli-skiing is inherently dangerous and that even the best guides cannot eliminate all risks. Says von Neudegg, ‘There are risks, for sure, but our guides … want to come home at the end of the day and they are not pushing the edge. We try to stay well inside the boundary, but obviously in this case, something went wrong.’

It is incredibly sad that Greg Sheardown died and my heartfelt sympathies go to his family. Clearly something went wrong though. But that doesn’t necessarily mean someone did something wrong. CMH has had 11 avalanche fatalities in 9 million group ski runs; those are pretty good odds. This may just be an unfortunate and tragic instance of the laws of probability catching up in the heli-skiing industry.

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Should pitch inspections be kicked into the long grass?: Sutton v. Syston Rugby Football Club Ltd [2011] EWCA Civ 1182

October 31, 2011

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The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.

Read the BBC news report or the full case transcript.

 

FACTS OF THE CASE

On 2nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.

About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub [3].

The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” [5]

They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:

1)    What was the appropriate standard to judge the quality of the inspection

2)    Whether this inspection would have revealed the stub (causation)

 

INSPECTION STANDARD

The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”

So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.

Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:

Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas [13].

In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!

This test therefore rejects the earlier first instance decision [11]:

“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”

 

WOULD AN INSPECTION HAVE REVEALED THE STUB?

Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service [2003] 1 AC 32, the Court of Appeal was unsure that the stub could have been discovered [17]. In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails [17].

 

WIDER IMPLICATIONS

An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at [13] Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

 Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” [18]

I suppose this begs the obvious question, when should courts interfere?

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