Patience is a virtue (except for the Police!): ZH v. Commissioner of Police for the Metropolis [2012] EWHC 604 (Admin)

Case Transcript: http://www.judiciary.gov.uk/media/judgments/2012/zh-v-police-judgment

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23^rd September 2008. The claimant was a 16yr old pupil with Autism, epilepsy and various learning disabilities who could not communicate by speech and had a severe aversion to being touched.

On the day in question, ZH was attending the swimming baths for a ‘familiarisation’ visit with his carer (Mr Sateesh Badugu), two other school staff and a number of pupils from the school. Although it was not intended that he would swim or be close to the water, ZH broke away from the school group and stood fixated by the edge of the pool. Unable to persuade ZH to return with the group, the group returned to the school to get additional assistance, leaving Mr Badugu in charge of the claimant. The school now accepts that good practice would have been to have had closed sessions without the public present [146], but no criticism was made of the initial visit, nor of Mr Badugu’s actions in dealing with ZH.

The situation became exacerbated when the Pool manager (Christian Harland), having been notified of the situation by the duty lifeguard (Yvette Burton), became frustrated by what he saw as the “ineffectiveness of the carer” [9] trying to entice ZH away from the pool with crisps. In a panic and in an attempt to break the deadlock, Mr Harland rang the police stating:

“We have a disabled male trying to get into the pool….the carer is trying to stop him and he is getting aggressive…he is quite a big lad” [10]

The initial police response to this incident was in the form of two officers in full uniform (PC Hayley Mckelvie & PC Emma Colley). Following the misleading 999 call, both officers perceived an immediate threat to life, despite ZH having been standing calmly by the shallow end of the pool for at least 40mins with several lifeguards nearby [70].

PC McKelvie went to speak to ZH, without speaking to Mr Badugu first, and touched ZH gently on his back. The Court held that this was the catalyst for ZH to jump in the shallow end of the pool [79]. The police officers justified their actions on the basis that:

“no-one was taking control and the police had to do so, and be seen to be doing so” [15, 76 & 77]

While ZH could not swim, the presence of the lifeguards and the fact that they formed a cordon to prevent him from getting to the deep end meant he was in no imminent danger. During this time, more carers and school staff arrived, however despite ZH being in the water for between 5-10mins, the police did not consult the carers for advice, or for help in formulating a plan, and none was offered to the police [21].

Three further police officers (PC Susan Tither, PC Varinder Sooch & PC Stuart Hunter) arrived at the pool and they then proceeded to forcibly remove ZH from the water. As he was lifted out of the water, he was immediately placed forcibly on his back and all five officers applied force to his body to restrain him [25]. Despite the carers repeatedly asking the police not to restrain him in this way as he was autistic and epileptic [26], two police officers shouted loud clear commands to ZH, while leg restraints and two pairs of handcuffs were applied, during which process, ZH lost control of his bowels.

ZH was then carried from the building and placed alone in a cage in the rear of the police van, still in handcuffs and leg restraints and soaking wet. His carer was not allowed to go into the cage with him, but was able to calm him enough to persuade the police to remove the restraints.

The claimant successfully brought three main actions against the police: trespass to the person (assault, battery & false imprisonment), and claims under the Disability Discrimination Act 1995 and the Human Rights Act 1998.

 

Assault, Battery & False Imprisonment

Although the claimant alleged the unlawful application of force in touching or restraining, the Police argued that their actions were justified under the Mental Capacity Act 2005. While the defendant did not have to have the exact provisions of the Act in mind while they were applying the force they did have to demonstrate that:

• The claimant lacked capacity  (YES)
• Any act was in his best interests (NO)
• There was an imminent danger of severe injury (NO)
• This belief was genuine (YES)
• It was a proportionate response to the likelihood and severity of any harm (NO)
• The response was the least restrictive way of dealing with the incident (NO)
• The views of the carers were be considered (NO)

The Court held that as there was no emergency at any stage of the incident, the police were not acting in ZH’s best interests. The failure to consult with the carers before approaching ZH, removing him from the pool or restraining him on poolside was also unreasonable [125], unnecessary, and disproportionate [127]. ZH could also have been placed in a warm room within the building rather than the police van. While the Police tried to argue their actions were necessary, this was rejected by the Court as it would circumvent the provisions of the Mental Capacity Act 2005 [44].

 

Disability Discrimination Act 1995, s.21b

The claim under the Act was essentially that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions, or in failing to make any adaptations where necessary. In particular the Court held that 8 adaptations could have been made:

• Identify with carers the best way of communicating
• Take reasonable steps to address the situation
• Allow the claimant opportunities to communicate with his carers
• Allow the claimant an opportunity to move at his own pace
• Application of force was a last resort and should be at the minimum level necessary
• Responding to advice from carers as the situation developed
• Adopt alternative strategies to afford protection for C’s safety
• Prioritising adoption of calm, controlled and patient approach with the claimant

This duty on the Police to make reasonable adjustments and to inform themselves of the situation was a continuing and non-delegable duty throughout the incident. Indeed, even if the school or its carers had been in breach of a duty to inform the police of ZH’s condition [121], this did not excuse the police from liability under the Act [137].

 

Human Rights Act 1998 claim

The claimant was successful in claiming under three headings:

• Art 3 (inhuman / degrading treatment) – taking into account the whole period of restraint
• Art 5 (right to liberty) – while the use of restraint can be justified, on this occasion, “its use for a significant period of time on an autistic epileptic young man…was in the circumstances hasty, ill-informed and damaging” [145]
• Art 8 (right to respect for private life) – the police action was not justified as proportionate in the circumstances.

  

Implications

The Court was at pains to note that the Police did not act in any ill-intentioned way towards the claimant, indeed one might argue that the police were placed in a difficult and volatile situation by a misleading call. It is also true that while the claimant was not in imminent danger, he was in a dangerous situation that had the potential to escalate rapidly. Ultimately however, liability arose because the police jumped in at the deep end by failing to consult with the respective carers or use softer, more persuasive methods of control.

The case raises interesting points in relation to the tension between paternalism (in ZH’s best interests even though it might be distressing to be restrained) and libertarianism (ZH should be allowed to do whatever he wants). As with anything, the context is all-important. If the police had been called when ZH had only just moved and become fixated by the water, or if it had been near the deep-end, or in a busier pool where there was more potential for accidental bumping / injury to the public, then the police response may have been more easily justified.

Ironically, the key failing of the police was not in immediately taking control of the situation, but rather in becoming fixated with an aggressive solution to a perceived problem, and demonstrating an inability to communicate with people around them. If officers had deferred to, consulted or sought advice from the carers (even if it was later disregarded as inappropriate), many of the problems could have been avoided. On the other hand, would the police have been criticised for delegating too much of their authorit? The incident also raises the tricky question of how they should evaluate the competency of any ‘expert advice’ they receive during an incident?

Hockey coach sentenced to 2 years for multiple sexual assaults to minors

In a case whose perpetrator’s actions span three decades and has attracted a considerable amount of attention, former hockey coach Graham James was sentenced three days ago to two years in prison for sexual assault. James plead guilty to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached.

James is a former Western Hockey League Coach of the Year and 1989 Hockey News Man of the Year. James had been previously convicted of a sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other boys, including former National Hockey League (NHL) player Sheldon Kennedy.

The sentencing for his most recent conviction has properly generated wide-spread criticism.

Provincial Court Judge Catherine Carlson accounted for the abuse of trust, the degrading and humiliating nature of the sexual assaults – repeated hundreds of times to victims under the age of 18 – and whose cumulative effect has been significant and devastating to victims Todd Holt and Theoren Fleury.

However, Carlson J. also pointed out that Mr. James expressed remorse, apologized to his victims and has experienced what she called ‘an extreme degree of humiliation’ – factors that warranted a reduction in his sentence from a possible maximum of 10 years to the two year sentence handed down.

A Globe and Mail editorial (click here to read) entitled ‘Judge didn’t grasp magnitude of James’s crimes’ accurately, in my view, captures the criticism: ‘There is something annihilationist about what he did. It was an obliterating violence he committed on their sense of personhood, repeated over and over and over and over. These crimes need a sentencing approach that recognizes the difference between one or two sexual assaults and the hundreds that Mr. Holt and Mr. Fleury endured. Not a single one of those assaults should receive a sentencing discount …. [H]is behaviour needs to be denounced to express society’s revulsion and pain at the victimization of the vulnerable, and at the abuse of trust. Provincial Court Judge Catherine Carlson spoke of that abuse, of degradation, of the total control exercised by Mr. James, but then gave him credit for an expression of remorse, an apology, the “extreme degree of humiliation” he experienced and his willingness to come back from Mexico without an extradition hearing. He deserved no such credit.’

A two year prison sentence for savage predation upon two vulnerable and trusting human beings is not enough.

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  

When is a coach liable for the injuries of their athlete?

Davenport v. Farrow [2010] EWHC 550 (QB)

Read the full case here (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/550.html&query=davenport&method=boolean)

The case concerns a claim by Richard Davenport (24yr old GB track athlete) against his former coach David Farrow (a top-level UK Athletics L4 coach). Davenport claimed damages for personal injury, consequential loss and damage caused by Farrow’s:

• Negligence
• and/ or breach of contract
• and/ or breach of statutory duty

The personal injuries alleged were stress fractures of the spine (bilateral spondyloses at L5) which prevented him from training or competing from 2005-2007. Essentially the claim turned on when these fractures occurred – during an intensive training camp as alleged by the claimant, in which case, issues arose as to what if any steps should have been taken to investigate and/or manage them; or prior to 2001 as alleged by the defendant in which case, no duty would arise and the claim would fail.

Although both parties called expert medical witnesses in support of their case, it was impossible to state with any certainty when the injury occurred and the nature of the evidence was that both conclusions could be supported by the symptoms described.

The Court however concluded that it was more than likely that the stress fractures occurred at an earlier stage than Oct/Nov 2004, as Davenport had claimed. Mr Justice Owen gave the following reasons in support of this finding:

• The claimant could not describe with any clarity when the symptoms came on, despite detailed and accurate records being kept of his high-performance training [58]
• The level and intensity of the training camp in 2004 was not markedly different from the previous year’s training and was considered to be an acceptable practice for an athlete of Davenport’s ability and aspiration [60]. This was important as Farrow was a volunteer coach and designed and managed the training regime.
• During 2004, Davenport was treated for a number of leg injuries, in South Africa, the UK and at competitions and despite referrals to a number of independent medical professionals, no complaint was made about any back injury [60-65]
• While the claimant suggested that Davenport thought that the claimant lacked motivation, had an attitude problem and was lazy [32], and as such did not take his complaints seriously, an independent witness gave evidence that the claimant’s parents shared Farrow’s view [66].
• If an athlete had been suffering from acute spondyloyses in Oct / Nov 2004, he would not have been able to have continued to have trained at the level and intensity that he was running at [67]

Given these conclusions, the claim failed.

 Arguably though, the most interesting part of the judgment was in an area not explored in any real depth by the Court, namely the role of a High Performance coach and the dynamics of that coach-athlete relationship. On 11th January 2004, Davenport and Farrow formalised their coaching relationship by a written contract [7]:

“4. THE COACH/MANAGER’S OBLIGATIONS

4.1 The Coach/Manager shall provide coaching and advice to the Athlete (retaining the right to coach other Athletes). Such coaching is to include advice on fitness, health, diet and training schedules, strength and track training schedules, mobility work, injury prevention and rehabilitation, race tactics and strategy, advice on a programme of events to participate in, to accompany the Athlete to events and make himself available to the Athlete at all reasonable time and upon reasonable notice for the purposes of consultation and advice pertaining to the Athlete’s career, both competitive and commercial.

5. PERFORMANCE, FITNESS AND INJURIES

5.1 The Athlete undertakes that other than pursuant to his/her obligations under this Agreement he/she shall not during the term of this Agreement participate in any professional or other sporting activity or practice that may endanger his/her fitness or ability to compete without the prior permission of the Coach/Manager.

5.2 The Athlete undertakes that he/she shall at all times during the Term compete to the very best of his/her ability and he/she shall make all reasonable endeavours to maintain his/her form and health so as to be available for regular competition.

6. THE ATHLETE’S OBLIGATIONS 

6.1 The Athlete will, during the Term but subject to the Athlete’s obligations in his/her education:

(a) make himself/herself available for all competitions and for training and for other duties … as and when required by the Coach/Manager … unless prevented from doing so by his/her obligations under any agreement relating to his/her participation in an international team or by illness, injury or accident or other cause which the Coach/Manager agrees so prevents him.”

What was left unanswered was whether the fact that there was a written contract increased a coach’s obligations towards their athlete? Or was it simply a good practice management of everyone’s expectations?

Farrow also deterred his athletes from playing other sports because of the potential injury risks these activities represented [5] and at: http://www.telegraph.co.uk/sport/4775917/Schools-Sport-Contact-games-taking-toll-on-athletes-says-coach.html. Did he have a point? Or should athletes only specialise much later in their careers? Indeed can athletes gain additional skills and experience from taking part in unrelated activities?

The final area of contention related to the degree of control a coach should have over an athlete. Although a number of other athletes also gave evidence though to suggest that they did not agree that Davenport was unduly domineering or imposed unreasonable demands given the level of commitment to their sport that was expected of them, in the Court case [27], it was suggested by the claimant and another former Farrow Protégé (Emily Pidgeon) that Davenport was:

“a forceful and controlling personality who demanded a high level of control over the young athletes whom he coached. He gave evidence that the defendant wanted a say in all aspects of his life. The defendant would telephone on an almost daily basis, and would question his mother about what she was feeding him, wanting to control his diet. As he grew older the defendant would check on what he was doing outside training, wanting to know if he had gone out, and whether he had got back at a reasonable time. The claimant’s evidence was supported by that given by his mother who said that as the years went by, the nature of her contact with the defendant changed from brief discussions to detailed inquisitions into the claimant’s routine outside training. Although she found it surprising, she accepted that that was how professional coaches operated.”

So what control should a coach exert over an athlete? And how would this relationship affect liability?

POSTSCRIPT

Richard Davenport has now re-recorded his personal best at an athletics meet in the summer: http://www.thisisgloucestershire.co.uk/news/Davenport-races-fantastic-PB/article-2361854-detail/article.html

In 2007, David Farrow was stripped of his UKA coaching licence for five years following an alleged abuse of trust with a senior athlete he was coaching: http://www.telegraph.co.uk/sport/othersports/athletics/2309581/Coach-guilty-of-abuse.html

If you don’t watch your kids, does that mean I don’t need to either?: An analysis of R v. Upper Bay Ltd [2010] EWCA Crim 495

This case was an appeal from a decision on 18^th June in the Crown Court at Cardiff, in which Judge Hopkins QC held that Upper Bay Ltd should pay £150,000 for their breaches of s3(1) and s33(1)(a) of the Health & Safety at Work Act 1974.

The case concerns a holiday trip by the Mole family to “Splashlands” in 2005. Splashlands had a policy that all children under 8yrs old should be supervised by an appropriate adult, and that an adult could only supervise a maximum of three children. The pool also operated a policy that pool assistants (lifeguards) should challenge any child in the water not accompanied or directly supervised by an adult and ask them to stand on the poolside until the person responsible for the child is found and supervision is maintained.

That day, Mr Mole took his two sons, Chad (7yrs) and JJ (4yrs) to the pool. Neither boy could swim unaided, although they had both had limited swimming lessons previously. On the day in question, neither boy had armbands or buoyancy equipment. While Mr Mole was playing one-to-one with JJ in the shallow end, unbeknownst to Mr Mole, Chad made his way to a “bubble lounger” situated near the deep end of the pool. A few minutes later he got into difficulties, and had to be rescued by a swimmer. He was subsequently resuscitated by the lifeguards but suffered brain damage.

The question facing the Court was: who was responsible for Chad’s safety?

Mr Mole argued that because there were two lifeguards on duty in that area of the pool (but that both had their backs to the pool and instead focused on the water flume) there was a breach of duty. This breach was further exacerbated when one of the lifeguards (Jo) spoke to Chad in the vicinity of the bubble lounger and told him to return to his dad, but importantly, did NOT ask Chad to get out of the pool in accordance with the centre policy.

By contrast, the pool operators argue that Mr Mole was ultimately liable as he had a duty to supervise his children and he was negligent in not keeping both of them under close supervision and in failing to provide armbands for them. The centre further argued that the duty of pool attendants was merely to supervise and observe the pool and that they had no duty to provide for the security of visitors.

While the Court agreed with the principle that parents had a duty of care to protect their children from harm, and that Mr Mole had failed to some degree on this occasion, the Court also held that Splashlands owed a duty towards Chad.

Importantly, while the centre did not owe a guarantee of absolute safety, it did have a non-delegable duty to ensure, so far as reasonably practicable, that individuals using the facilities provided for them….were not exposed to risks to their safety or health. In particular, practical reality suggests that although parents should be expected to supervise their children, it was foreseeable that children can sometimes escape from this parental supervision. The duty of a pool operator is therefore to ensure that the risk that a child can drown is prevented. On this occasion, the centre failed to provide both adequate supervision for the deep end, and also to observe its own policy requiring unsupervised children to be challenged and to stand on poolside until appropriate supervision is found and it was right that liability should attach against it.

Because these duties are independent of each other and non-delegable, the failure of one party (in this case, Mr Mole – the parent) did not act as a defence for the failure of the other party (the pool).