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

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 4^th 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 16^th 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?

Coroner’s Inquest into Search and Rescue Death

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.

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

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.

The real risk in extreme sports

The Vancouver Sun published on February 1^st 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.

—–

Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

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’!

Perspective and Probability in Heli-skiing

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.

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

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 2^nd 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?

Bicycle races are coming your way so forget all your duties, oh yeah!: An analysis of Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB)

The dangers of relying on Queen lyrics as legal precedent is illustrated in the personal injury case of Simon Reynolds (a 49yr old property consultant), who suffered head injuries when he fell from his bicycle following a collision with another rider in a team-building race on 19^th June 2008. 

BACKGROUND

The race was part of a team-building event for the 35 staff working in the Canterbury office of Strutt & Parker (a national property consultancy and estate agency). Following a normal morning of work, 30 of the staff met in the boardroom to be divided into six teams of five for a mystery treasure-trail around East Kent, culminating in a trip to Fowlmead Country Park for the second stage of the day.

For those that have never been, Fowlmead Country Park is set amongst 200 acres regenerated from the shale spoil of the former Betteshanger Colliery site, and contained a 2 mile long tar macadam-surface road and cycling track. The idea was to run three types of events, an active and energetic event (the bicycle race), a harmonious and steady event and a thoughtful and considered event.

Each team would effectively sub-divide itself into two pairs and a single person to compete in these events, although it was stressed at the High Court that the purpose of the event was for fun and enjoyment rather than as a competitive and regimented exercise like many traditional team-building days. By the time, the groups reached Fowlmead, many were quite rowdy, having consumed Peroni beer along the route for refreshment.

The bicycle race was held in heats of two teams of two riders, the objective being to finish either 1^st, 2^nd or 3^rd, with the losing team of two being eliminated. The claimant was in the last of the three preliminary heats. Unfortunately, this proved to have quite a competitive undercurrent to it, with tension at the starting line as the claimant jostled for position in a narrow gap, despite the startline for the four riders being 8m wide! [18]. The claimant led for the start and was on target for a first place finish, when 20-25m down the finishing straight, he deliberately leaned to his right to cut up his closest rival, Alistair Cracknell, who was attempting to pass him down a gap on the inside. Cracknell lost control of his bike and in the resulting collision, the claimant was also thrown from his bike and suffered head injuries.

In echoes of recent overtaking manoeuvres (and collisions) in Formula One, the Court held that the claimant made a deliberate decision to behave in an aggressive manner, reckless as to the consequences [26]. This positioning by moving to the right despite there being no racing line or need to do so on a finishing straight is a key factor behind the accident and also immediately distinguishes the case from Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054 where the claimant was not aware of the position of the horses behind him going into a tight left hand bend. As such, the court held that the claimant should hold the greater proportion of the blame and found him two thirds liable.

During the course of the case, a number of questions were raised:

• Was the event part of the claimant’s employment? (which would bring him under the more favourable duties owed by the Health and Safety at Work Act 1974)
• Should all the riders have been provided with mandatory cycle helmets to wear?
• Had the defendants adequately assessed the risks of the event?

 

DO ALL ESTATE AGENTS RACE BIKES AT WORK?

While both sides accepted that there were corresponding common law (negligence) and statutory (health and safety) duties, the question of whether the event constituted ‘work’ was important for establishing the extent of the duty, as statutory duties in this instance were arguably stricter [34]. Unsurprisingly perhaps, the defendants argued that the event was not compulsory and that,

“the afternoon was intended to afford entertainment and enjoyment to staff in a social atmosphere, and for no part of their work.” [3]

By contrast, the claimant suggested that all employees were expected to attend, the event was managed and organised by the employer, would be to the employers benefit by fostering an esprit de corps and that there was no deduction from their salaries [35].

The Court struggled to pinpoint any case or principle on the limits of employment, trying unsuccessfully to apply traditional vicarious liability and the Salmond “close connection” tests [35]. Oliver Jones QC (sitting as the Judge) finally concluded that a jury would:

 “simply say that the defendant’s staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.” [37]

With respect though, it is difficult to see how this conclusion can be justified, indeed it is internally inconsistent with the conclusions over the employer’s assessment of risks and their duties under the Compensation Act (see later). How can an employer be liable for the organisation and management of an event [40], yet their employees not be engaged in a ‘work activity’ whilst attending it? When my employer arranges team-building events or away days, attendance is expected, especially if they fall on traditional working days. I thought that Lister v Hesley Hall Ltd [2002] widened the scope of employment and vicarious liability, not narrowed it to only traditional working activities. I can hear the reverberations across golf courses all around the country. The effect of this Reynolds definition of employment is that while you are concluding business deals or networking on the golf course, you may not actually be working!

The judgment also continues at [38] to suggest that justness and reasonableness would be offended if the Health and Safety at Work Act and associated provisions were ever intended to be applied to cases such as these. While it is true that the drafters of the Acts probably didn’t envisage bicycle racing estate agents and property consultants, however if these activities were being carried out as part of an employer-organised event, why shouldn’t they apply? Indeed isn’t that the subtext behind paragraph [46]?

“I have been referred to and considered the terms of section 1 of the Compensation Act 2006. Whilst the reward of employees by employers in ways such as that chosen in this case is a desirable activity, I am quite satisfied that requiring employers to take reasonable precautions for their employees’ safety will not discourage employers from doing it, or discourage employees from taking part. On the contrary, fun activities are likely to be more attractive if employees are assured that their safety has properly been considered.”

IS CYCLING DANGEROUS?

Crucially, the case hinged around the duty of Mr Church and Mr Backhouse (senior partners at the defendants) to arrange and to organise the event, and to ensure that their employees were reasonably safe in engaging with the activities laid on [40]. The problem was that the defendants risk assessment extended to prohibiting a proposed mountain biking activity as being unsafe [12]. They did not consider any of the risks associated with falling off a bike, or colliding with other riders during the race [24]. (As a very new cyclist, I can testify that both of these risks are patently obvious, indeed anybody that has watched me ride might even go as far as to say expected!) To suggest that the defendants were naïve in this respect is somewhat of an understatement. I accept that one might expect all riders in a professional race to be competent and to a certain extent this is self-selecting (although one only has to note Bradley Wiggin’s recent injury to see that collisions are a part of even professional races). In the current case though, the teams were randomly chosen with no pre-checks or the riders’ competency, indeed the cycle race did not even have a written risk assessment. While it is obvious that the defendants were not aware of the risks, this omission could have been identified had they sought the advice of the Fowlmead management in the risk assessment process, or as the Judge put it:

“This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use.” [42]

Given the failure to perform an adequate risk assessment, the Court was left with little choice but to conclude that:

“Neither partner organising the event had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors.” [28]

Even then, by itself, this failure was not a direct cause of the injury to Mr Reynolds, however following Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66, a failure to carry out an adequate risk assessment could be indirectly causative of the injury if the precaution it should have identified (cycle helmet) would have avoided the injury [41]. Sadly this was the case here.

SHOULD YOU WEAR A HELMET WHEN CYCLING?

While there is no law that suggests that the use of a cycle helmet is compulsory, the Health and Safety Executive (HSE) recommended their use and helmets were available at the event. Personal injury case law on cycling, most recently, Smith v Finch [2009] EWHC 53 QB (discussed in detail on this blog) also suggests that the failure to wear a helmet when cycling casually on the roads could amount to contributory negligence. Given that finding, it should come as little surprise that this principle is extended to sport:

“Those who engage in competitive racing, even for fun, or perhaps because it is fun, should be held partly to blame for the failure to protect themselves.” [45]

Because the claimant did not wear a helmet, despite suitable equipment being offered and available to him (even though only 1 other rider availed himself of a helmet), the Court held that this constituted contributory negligence.

My advice to any cycling event organisers – make sure that your riders wear helmets and don’t take Queen lyrics too seriously! 

Taking NIMBYSM to new heights

A recent article in Spiegel Online International takes NIMBYSM (Not in my Back-Yard, Span or Mountain!) literally to new heights.

Lukas Eberle describes how villagers in the Swiss village of Lauterbrunnen are being deluged with BASE jumpers (an extreme variation of parachuting where jumps take place from Buildings, Antennas, Spans and Earth). Apparently, there were around 15,000 BASE jumps in Lauterbrunnen last year, a figure which sits in stark contrast to a number of jurisdictions around the world that ban or heavily license the sport.

For me, the article  raises two main issues: what degree of autonomy / paternalism is appropriate? and what is the cost of failed jumps (both in human and financial terms)?

 

AUTONOMY / PATERNALISM

When Lord Hoffman made his now seminal judgment in Tomlinson v. Congleton Borough Council [2002] EWCA Civ 309 that:

 “I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.” [45]

A view echoed later in the case by Lord Hobhouse of Woodborough:

“In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.” [81]

I am not sure that either judge had in mind the issue of BASE jumpers lobbing themselves off mountains, but that is now the situation facing the authorities in Lauterbrunnen. What is interesting about Lauterbrunnen is the shift from what would seem to be an initial openness and complete autonomy for anyone to jump to a much more structured self-regulation and licensing scheme imposed from within the sport.

The winds of change may however be blowing through the valleys once again if recent articles, websites and BASE discussion forums are to be believed. Indeed, it would now seem that public perception of the acceptability of the sport has changed following repeated injuries and fatalities (three deaths in particular occurred within three weeks of each other, earlier this summer,
http://www.321base.eu/
). Whether the sport will be able to resist the clamouring for tighter restrictions on the activity will therefore depend on whether the diverse multinational groups of jumpers can be regulated.

As the judgments in Tomlinson showed, there are no right or wrong answers rather a balancing of competing rights. In jurisdictions such as the US and UK, the sport is restricted by criminal trespass laws except for time-limited opportunities to jump from certain objects at particular occasions within the year, in a quasi-controlled and somewhat paternalistic manner; In this context, the libertarian approach taken by Switzerland seems to have led to the country becoming almost a victim of its own success. As access to sites has become easier, propelled by a burgeoning adventure tourism industry, so the sporting purists have been diluted by a wider variety of opportunistic jumpers.

And therein lies the problem, regulating such an extreme activity will always be inherently difficult given that the sport was created to push beyond traditional boundaries and restrictions. With such an underground, anti-establishment history, it is perhaps worth asking the question whether BASE jumping can ever be successfully self-regulated or policed?

To a certain extent, parallels do exist with society’s acceptance with off-piste snowboarding and other extreme activities. Indeed, it is even possible to get BASE jumping lessons! As strange as it sounds, there are BASE jumping schools, some websites even offer tandem BASE jumps so you can vicariously get that extreme adrenaline rush without all that bothersome training and experience (apparently these are becoming popular with stag parties!). I don’t know what is more worrying, the mainstream acceptance of BASE jumping or the thought of how the sport can get even more extreme once it ceases to be cool.

 

THE COST OF FAILED JUMPS

One other thing the article does do particularly well is to poignantly bring home that a fatal jump has consequences not just for the jumper, but also for potentially any innocent members of the public who might have witnessed the accident. It is one thing to extol the virtues of living life to the extreme in a desolate wilderness, or by pitting yourself against the elements, it is something entirely different to traumatise innocent villagers and children with the stark realities of uncontrolled gravity.

Some might say that we should celebrate that a jumper may have died doing something they loved, I worry though that in doing so we blur that line between applauding extremes of human performance and encouraging reckless acts in pursuit of that blaze of glory. BASE Jumping is not an entry-level sport, rather it should remain the prerogative of the experienced athlete, the jumper who respects nature, their own limitations, and the rights of those they share the environment with. The sport should be something more than simply jumping off a summit, it should also involve knowing when not to jump.

I do fear though from the future of the sport in Switzerland when local farmers are quoted as saying:

“The authorities don’t want to ban the jumping because even a dead BASE jumper brings money in,” the farmer says angrily. Many in the area would earn some cash in such a case, “the doctor, mountain rescue” and also the hotel and restaurant industry — “when the relatives travel here,”

Let’s just hope the jumpers become more respectful or the Swiss authorities turn out not to be as a as cynical as Farmer Feuz suspects….

2011 Public Inquiry into McRae Helicopter Crash

 

 

 

 

 

 

The 2011 public inquiry into the deaths of former rally world champion Colin McRae (and three others) in a 2007 helicopter accident has now been concluded. The Inquiry was instituted by the Lord Advocate under the discretionary provisions of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 and was conducted at Lanark Sheriff Court by Sheriff Nikola Stewart between January and August this year. The full determination can be downloaded here:
http://www.scotcourts.gov.uk/opinions/FAI41.html

More details of the case can be also found in our original blog post about the 2009 Air Accidents Investigation Branch Report (AAIB):
http://sportslawnews.wordpress.com/2009/02/12/mccrae-flying-licence-expired/

Essentially, while both the AAIB Report and the Inquiry determination were unable to conclusively determine the exact cause(s) of the crash, both reports conclude that McRae was ultimately at fault.

 

HOW THIS CONCLUSION WAS REACHED

Although a ‘black box’ style flight recorder was not fitted to the helicopter (it is not compulsory to do so for private helicopters), and there were no witnesses to the crash (although multiple witnesses did view aspects of the flight), it is possible to piece together all but the last few seconds of the flight from contemporaneous video filmed by one of the passengers.

Weather conditions were generally favourable with good visibility [9], the flight was only a short (6 minute, 8 nautical miles) return trip from a friend’s farm nearby, and the G-CBHL helicopter in question had been regularly serviced.

This effectively left five probable causes for the accident:

• Sudden onset technical malfunction (no evidence of this despite a scrupulous investigation by AAIB)
• Accidental interference by the passenger with the dual-flying controls (cannot be ruled out)
• A Bird strike (no evidence)
• Pilot disorientation or misjudgment as a result of low flying at speed in difficult terrain
• Servo transparency failure of the helicopter leading to or contributing to deviation

 The problem for McRae is that the inquiry held that any / all of the above possibilities could have been avoided or mitigated had McRae given himself a greater margin of error by flying higher or at a lower speed [29].  

Particularly damning for McRae was the finding that: “The episodes of extremely low level flying and the excessive manoeuvre parameters, particularly the descent into the [Mouse] valley by Larkhall, all as captured on the video recording, are indicative of an aircraft being flown imprudently, without due regard to the principles of good airmanship, and in such a way that normal safety margins would be reduced.” [26]

McRae also repeatedly breached the Rules of the Air Regulations 1996 (1) Rule 5 (2)(b) by unnecessarily flying below the minimum 500 feet clearance requirement on multiple occasions in order to create significant g-loading for the enjoyment of his passengers [24], indeed on one occasion the helicopter deviated from its intended route to manoeuvre over a farm building at only 205ft! [49] 

 

McRAE’S INVALID PILOT LICENCE

The previous findings against McRae’s conduct are further exacerbated by McRae’s failure to hold a valid pilot licence at the time of the accident, in breach of Art.26 of the Air Navigation Order 2005 which required all pilots to hold a:

• pilot’s licence (McRae’s had expired on 14 February 2005 and had not been renewed)
• validated with the type of aircraft to be flown (his AS35OBS type rating had expired 16 November 2004)
• through an annual Licence Proficiency Check (“LPC”) (expired March 21 2007 – six months before the accident)
• a valid relevant medical certificate (which McRae did possess, [31]).

At the inquiry, evidence showed that non-compliance with this licensing system was not an isolated occasion, as McRae had previously allowed both his type rating and medical certificate to expire on several occasions, despite his continuing to fly the helicopter during these periods of invalidity [33].

While there is no evidence to suggest that he was medically unfit, or incompetent to fly either during these times or on the day of the accident, the Sheriff Stewart found that these lapses indicated a “cavalier attitude to the safety regime imposed by the Civil Aviation Authority (CAA)” [64] and could invalidate his insurance.

Further safety issues were also highlighted by an out-of-date flight manual, which failed to contain updated guidance on maintenance issues, particularly in relation to servo failures. While there is no evidence to suggest that McRae knew that this advice was out-of-date or that updates were available, the responsibility for ensuring that the manual was still current lay with McRae (as owner and pilot) [89].

 

PARENTAL CONSENT

The final issue in the case, which also has wider implications beyond the immediate families, was the lack of parental consent for Ben Porcelli (6yrs old) to be carried as a passenger in the helicopter. Ben was a friend of Colin’s’ son, Johnny McRae (5yrs old) and the two boys had been playing together on the farm until the helicopter ride.

The key point here is that McRae did not take any steps to ask either of the Porcelli’s for consent for Ben to be a passenger during the unplanned trip. While the inquiry ultimately held that there was insufficient evidence to determine whether Ben would have been granted or refused parental permission to ride in the helicopter, McRae’s failure to consult on such a deviation from the original plan resulted in considerable pain for the Porcelli family, but ultimately no legal culpability [134].

This begs the question, to what extent do parents have a right to be consulted on issues like this, or is parental consent implied by the generic loco parentis during the supervision, and consenting to deviations is merely a social expectation rather than a legal obligation? Although this issue was touched on previously by the Court of Appeal in Harris v. Perry [2008] EWCA Civ 907 (in relation to a failure to consult with the parents of two young boys before allowing them on a bouncy castle), it seems we are still not clear on to whether such a consultation duty exists….

See also:
http://www.bbc.co.uk/news/uk-scotland-glasgow-west-14803595