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): https://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  

Changing the culture of violence in sport

I wrote last week of the lacrosse head stomping incident. A colleague of mine at Thompson Rivers University, Peter Soberlak – Chair of the Physical Education Department – penned an erudite piece in the local paper (click here for it), the highlights of which are worth repeating and are noted below:

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We must also focus our attention on the sports that condone and promote a high level of violence and encourage these organizations to accept partial responsibility and be accountable, rather than deny any involvement, and in this case, single out a 15-year-old boy who obviously made a very poor decision.

When violence and intimidation are built into the culture of certain sports and are used both tactically and strategically, they become part of the psyche of the athletes involved. How can we expect 15-year-olds who are often dealing with raging hormones, peer pressure, coach pressure, and parental pressure to always make the right decisions in these emotionally charged situations that are allowed to escalate because of the culture of the sport itself and the rules that are in place?

There are far too many variables that lead to situations and incidents like this in youth sport and it’s about time that we re-examine the structure and culture of violence within certain sports, particularly at the youth level.

…

I sincerely hope that the sport of lacrosse and its governing bodies will take this opportunity to stand up, acknowledge its role in this incident, and show some leadership in promoting positive social change in the culture of youth sport.

—–

Search and Rescue Volunteer Dies in BC

A search and rescue volunteer with Nelson Search and Rescue drowned in the Goat River near Creston, British Columbia yesterday while helping undertake a search of a submerged vehicle. The young woman fell overboard from a watercraft and did not surface. Efforts to locate and rescue her were unsuccessful (click here for the article in The Vancouver Sun).

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.

No data is readily available for comparable statistics to BC firefighters but according to the US Fire Administration and the US Federal Emergency Management Agency, 1091 American firefighters died while on-duty between 2000-2009. This averages to 109 deaths per year.

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

6 climbers fall to their deaths in the French Alps

Six climbers fell 200 m to their deaths in the French Alps. Their bodies were found at an altitude of 2,700 m on Neige Cordier Peak, 5 km from Villar-d’Arène in the Hautes-Alpes region south-east of Grenoble. The six French mountaineers were in two rope teams and had not gone far before they fell. While not a particularly difficult climb, the accident appears to have occurred at the most technical part of the ascent. Climbing conditions were ideal. It looks like there was no avalanche. The investigation is continuing. Click here for the article in The Guardian.

Without presupposing the outcome of the investigation, it is noteworthy that in response to an alarming number of falls on Denali / Mt. McKinley in Alaska in the 1990’s, the US National Park Service looked at the underlying causes of the falls. Daryl Miller, who was my leader on the Denali Rescue Team in 1997, led the study which showed that climbing teams roped together on steep terrain often have a false perception of security and that a high percentage of falls involve teams descending, roped together and with no fixed protection.

Concussions are a Headache for the NHL and NFL

Sports Litigation Alert (Volume 8 Issue 7) just published an article I wrote entitled, “Concussions are a Headache for the NHL and NFL.”  Here are a few excerpts:

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Brian Burke, Harvard-trained lawyer and General Manager of the Toronto Maple Leafs of the National Hockey League, referred to concussions as the “topic du jour” earlier this year. While Burke may be guilty of not being politically correct in his characterization of brain injuries sustained in the course of playing a game, his colorful comments may properly place the issue into perspective.

…

The National Football League doesn’t care about intent. It only cares about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn’t matter that he didn’t mean to do it.

Even the International Ice Hockey Federation and the NCAA prohibit any hit to the head regardless of whether it was intentional or unintentional.

The International Olympic Committee and World Anti-Doping Agency have the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance.

If the National Hockey League is serious about hits to the head and brain injuries, they should tear a page from the playbooks of the NCAA, the IOC, and WADA and adopt a strict liability approach to hits to the head.

—–

Zip-lines and the Law

Sports Litigation Alert (Volume 8 Issue 6) just published an article I wrote entitled, ‘Family Alleges Negligence after Man Dies on Zip-line’ which is about a zip-line lawsuit launched in the United States and another zip-line case just decided in Canada. Here are a few excerpts:

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A lawsuit was recently filed in the United States District Court, District of Utah — Central Division, by the estate of a man who died while zip-lining. The complaint alleges in Hoagland et al. v. Rockin’ R Ranch & Lodge Guest Operations Inc. et al. that on Aug. 11, 2008, at the Rockin’ R Ranch in Piute County Utah, Daniel A. Hoagland, M.D., dutifully followed the instructions given him, climbed the zip-line tower, held on to the strap which connected the stick to the zip-line, sat on the stick and left the tower. The strap immediately snapped causing Dr. Hoagland to fall resulting in his death. The complaint describes the strap as narrow, weathered and worn-out.

…

The lawsuit alleges negligence or, in the alternative, gross negligence, which the complaint describes as conduct that is willful, intentional or reckless, causing Hoagland’s death. The complaint lists 15 separate alleged breaches of duty. The two most salient allegations relate to failure to maintain a safe zip-line and failure to secure participants to the zip-line via a harness and lanyard.

The defense will likely rely upon the doctrine of inherent risk and that the plaintiff signed a waiver and release of liability. U.S. courts have dismissed similar claims under the doctrine of primary assumption of risk such that — for example — if falling is an inherent risk of climbing and if the plaintiff fell while climbing, then the eventuation of that risk is something to which the plaintiff accepted.

…

Coincidentally, in another zip-line case, a Canadian court in Loychuk v. Cougar Mountain Adventures Ltd. (2011 BCSC 193) ruled last month that the waiver signed was binding, thus barring the plaintiff’s recovery. The defendants conceded negligence in the communication breakdown which gave rise to the high-speed collision on the zip-line between the two plaintiffs, so the only substantive issue facing the Supreme Court of British Columbia was whether the waiver of liability and assumption of risks agreement was valid.

Among other claims, the plaintiffs argued that the defendant misrepresented the terms of the waiver, that it was obtained without past consideration, and that it was unconscionable. The plaintiffs had considerable experience and exposure to waivers; one plaintiff had just finished law school and the other was an owner of a fitness business which required its clients to sign a waiver and assumption of risks agreement.

The court disagreed with the plaintiff’s claims and found that the waiver was enforceable; that there was no evidence of duress, coercion or unfair advantage; and that the plaintiffs were given notice as evidenced in the defendant’s website which discloses that guests were required to sign a waiver of liability, and that the wavier was not unconscionable.

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Nodar Kumaritashvili’s death at the 2010 Vancouver Winter Olympics – Let the finger pointing begin!

I have consistently been critical of VANOC’s handling of the death of Nodar Kumaritashvili on the opening day of the 2010 Vancouver Olympic Winter Games. In February 2010 I wrote in The Globe and Mail, ‘Shame on VANOC for blaming Georgian luger Nodar Kumaritashvili for his tragic death while conveniently absolving themselves of responsibility.’ In October 2010 I wrote in the National Post that the BC Coroner’s Report was ‘off-base in pointing the finger of blame at Nodar Kumaritashvili, stating that his relative lack of experience set the backdrop for the incident. This track was intentionally engineered for world-record-breaking speed and high G-forces. A high-speed corner was named “50-50” due to the odds of making it without crashing. World-class lugers were crashing in their limited training runs. What happened was not just due to the inherent risks of the luge or to Mr. Kumaritashvili’s inexperience. VANOC’s shortening of the race course and building up of the walls is implicit recognition that the course was too fast and that its speed played a greater role than Mr. Kumaritashvili’s inexperience in his death.’

The Globe and Mail reported (read article here) two days ago that Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) CEO John Furlong ‘expressed concern that an athlete could get ‘badly injured or worse’ on the high-speed track and organizers might be accused of doing nothing to prevent it. Mr. Furlong’s unease, outlined in a startling, March 2009 e-mail … came after he received a copy of a letter to the luge track’s designer from the worried president of the International Luge Federation (FIL), Josef Fendt.’

FIL Secretary General Secretary Svein Romstad stated that, ‘Our goal is always to have tracks around 135 kmh, and that was what the designer projected. Instead, we suddenly got to 154 kmh. That was never our intention.’

In a letter written to IBG Designs, FIL President Fendt wrote, ‘Most of the athletes were able to cope with these extremely high speeds. Nevertheless, overstepping this limit would be an absolute unreasonable demand for the athletes …. This causes me great worry.’

Having received a copy of Mr. Fendt’s letter, Mr. Furlong e-mailed members of his senior management team writing, ‘An athlete gets badly injured or worse and I think the case could be made we were warned and did nothing. That said I’m not sure where the exit sign or way out is on this. Our legal guys should review at least.’

Tim Gayda, VANOC Vice-President of Sport, responded, ‘I don’t believe there is anything to do.’ This was echoed by VANOC Executive Vice-President of Sport, Paralympic Games and Venue Management Cathy Priestner-Allinger who wrote, ‘FYI, no action required at this time.’

I wonder if VANOC’s foreknowledge of the track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000 from a private insurance ostensibly to compensate a grieving father and mother for the loss of their son due to a tragic accident. On the world stage of the Olympics, VANOC blamed Nodar Kumaritashvili for his death while conveniently absolving themselves of responsibility. It is assumed that VANOC carried on with the line that Nodar’s inexperience caused his death. If Mr. Furlong didn’t tell them about their concern over ‘extremely high speeds’ which presented an ‘unreasonable demand’ on the athletes when the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do.

Lastly, parroting VANOC’s position at the time, the BC Coroner’s Report pointed the finger of blame at Nodar Kumaritashvili stating that his relative lack of experience set the backdrop for his death. The report conveniently ignored correspondence it had from VANOC and International Luge Federation executives who were worried that the unintended extreme speeds were unreasonable and that athletes could get injured or killed as a result. Cover-up, incompetence, or honest mistake? Let the finger pointing begin!

Read the e-mails here – VANOC Luge e-mail 1 + VANOC Luge e-mail 2