Tag Archives: child

Exercising a public function: Spelman v. Express Newspapers [2012] EWHC 355 (QB)

April 18, 2012

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Redacted (public version) of the transcript: http://www.bailii.org/ew/cases/EWHC/QB/2012/355.html

Guardian newspaper report: http://www.guardian.co.uk/sport/2012/apr/16/rfu-environment-secretary-drug-taking

A lot has been recently written about Jonathan Spelman, a 17year old boy and son of a Cabinet Minister (Caroline Spelman is Member of Parliament and Secretary of State for the Environment, Food and Rural Affairs) and on the 16th April he was formally suspended from Rugby by the RFU for 21months for an anti-doping violation: http://www.rfu.com/News/2012/April/NewsArticles/160412_Spelman_judgment.aspx .

While the details of this anti-doping violation are now public knowledge, as is his unsuccessful fight to seek a privacy injunction barring reporting of this, what is perhaps more interesting is the Court’s view about sport.

 

The Background to the case

Jonathan Spelman played rugby for England U16 and for Harlequins RFC however he suffered a serious cruciate ligament injury in September 2011 which prevented him from playing. According to newspaper reports, he then ordered a series of steroids over the internet in an attempt to speed his recovery. The RFU name these substances as: testosterone, drostanolone (both anabolic steroids), growth hormone (GHRP6), human chorionic gonadotropin (HCG), clomid (clomiphene) and nolvadex (tamoxifen).

The Privacy injunction was an attempt to prevent the Daily Star Sunday (a tabloid newspaper) from revealing these allegations, an effort that subsequently failed. The resulting publicity in the media ultimately led to his voluntary appearance before the RFU’s independent disciplinary tribunal last month. Earlier this week, the tribunal reduced his anti-doping violation by three months to take into account his youth, immaturity and admission of guilt.

 

The Privacy Injunction attempt

Although the Daily Star Sunday did not yet have a fully written article, they were making enquiries of various parties to try to corroborate their information about Jonathan. After they approached these sources, they were contacted by the Claimant’s solicitors who instructed them to effectively cease and desist what they felt was an invasion of privacy and a political assault against Mrs Spelman.

By contrast, Express Newspapers argue that by giving full and prior notification of a potential story, they acted properly and responsibly, a principle that Max Mosley has previously campaigned on: http://www.guardian.co.uk/media/2011/jun/02/max-mosley-media-warn-subjects-expose . They also argued that Mrs Spelman was only an incidental aspect to the story [25] and that the key fact is that Jonathan is an elite sportsman who aspires to play at national and international level [66].

The initial hearing was on Saturday 11th February 2012, see here for a redacted judgment:http://www.bailii.org/ew/cases/EWHC/QB/2012/239.html and http://www.bailii.org/ew/cases/EWHC/QB/2012/392.html

As with many privacy cases, the crux of the case turned on the interpretation of the Human Rights Act 1998 and the balancing exercise that needed to be undertaken between the diametrically opposite rights enshrined by Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression). At [30], the Court confirmed that neither of the Articles took precedence over the other, instead, the importance of each right, the justifications for any interference, and the proportionality of any action should be carefully reviewed. The Court also re-stated the importance of maintaining open justice and the public accountability of the Courts [19].

See: http://www.headoflegal.com/2012/02/24/spelman-injunction-lifted/ for an interesting analysis of this balancing exercise.

As an aside, at [24], there is also an interesting discussion of the mechanics of how Sunday papers work and the exclusivity they prize over the daily titles that could effectively scoop them to reporting ‘their’ story if the injunction was discharged during the week .

 

Unfettered Watchdogs

While the paper expressed the view that it would be cheaper to not contest the injunction, they felt that this would place serious constraints on their freedom of expression and their function as a ‘unfettered Watchdog in a democratic society’. Perhaps surprisingly, the Court broadly agreed and cited what it saw as two key paragraphs specifically applying and underpinning this principle in sport.

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

Resolution 1165 (1998) of the Parliamentary assembly of the Council of Europe on the Right to Privacy

And from the recent Grand Chamber case of Axel Springer AG v. Germany [2012] ECHR 227 (7 February 2012) [90]:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes….. but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no.44102/04, § 34, 8 June 2010).

The Court held that given this, and the fact that at least one of the facts was true (and thereby could act as a complete defence to any potential defamation action [60]), it would be in the public interest for the newspaper to publish. The Court did however recognise that such an article could be intrusive or offensive depending on how it was written [102] and reserved the right to award damages (including aggravated damages) for the disclosure of private information if the publisher could not justify its use [120].

 

Child Athletes

The rest of the judgment is comparatively unreported; however I would argue that it is actually the most interesting and far-reaching part! Essentially, the Court moved from the basic proposition that children enjoy no general rights to privacy simply because of their age [53], to suggesting that the fact that Jonathan was nearly 18 was irrelevant as the principles of the case and the public nature of his role would equally have applied by virtue of his status as an international U16 player [72].

While I would not recommend using Mr Justice Tugendhat’s comments at [68] to meet the Government’s legacy sport targets for youth sports participation:

The material benefits to those few children who succeed at the highest level can be fabulous. But these benefits may come at a high price. It is a matter of common knowledge that the effort to achieve the highest honours in sport can damage a person’s health and family life, and lead to an early death, or even to a life of misery when careers end early and in disappointment. But the price in terms of health and happiness may be paid even by the less successful performers (being the overwhelming majority, of course) without their ever obtaining the material or other significant benefits.

It is his subsequent comments that are potentially the most significant. At [69], Tugendhat J suggests that:

69….those engaged in sport at the national and international level are subject to many requirements which are not imposed on other members of the public. Matters relating to their health have to be disclosed and monitored, and they may have little if any control over the extent to which such information is disseminated. It is a condition of participating in high level sport that the participant gives up control over many aspects of private life. There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.

He then proceeds to extend this principle even further beyond professional athletes to journeyman athletes who merely ‘aim for’ rather than necessarily achieve the highest levels of sport [70].  Strictly speaking this area of the judgment is obiter, however it does make me wonder how many current child athletes (and their parents) understand the responsibilities that this extension of the principle entails. Not only are national and international child athletes role models and can legitimately be subjected to public scrutiny, but so now are lower level younger athletes. How far does this diminution of reasonable expectation of privacy extend? County level? What about pupils competing in the National School Games? It will be interesting to see how this area develops.

One last paragraph that sports governing bodies may wish to address is the potential ethical and welfare concerns raised by the Court in [107] that:

…..the demands made on children for the benefit of sport have increased very greatly over that period. Whereas in the past there was relatively little money to be made out of sport by anyone, sport has in recent years generated huge revenues, mostly from broadcasting and other intellectual property rights. So there is a risk that those responsible for organising national and international sporting activities may have interests that conflict with the welfare of the children who participate, or aspire to participate, in these activities.

Is this Tugendhat J’s response to the furore over Tom Daley’s media commitments, or is he suggesting that greater work should be undertaken to ensure that young athletes in professional and elite sport are not just protected from abusive relationships, but from the pressures and responsibilities of playing sport itself?

Ironically, this judgment has only increased these pressures.

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2011 Public Inquiry into McRae Helicopter Crash

September 14, 2011

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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  

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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

August 24, 2010

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This case was an appeal from a decision on 18th 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).

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Lies, Damned Lies and Statistics,

June 27, 2010

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Source: Harrison (A Child) v. Wirral Metropolitan BC (19/3/09) (unreported), Liverpool County Court, (Zurich Case)

Echoing the famous House of Lords authority of Bolton v. Stone [1951] 1 All ER 1078, a similar case was recently brought by a six year old boy struck by a golf ball while he was in a park adjacent to a golf course. The boy alleged the golf club (not literally the driver used but the organisation!) were liable in negligence for:

  • Not having built a higher fence (Bolton)
  • Using a fence with broken wire mesh in places which would allow a ball to pass through
  • Failing to put warning signs in place (although I would be impressed by a six year olds reading prowess, it may be pictorial signs might have been better?)
  • Failing to carry out a risk assessment (Poppleton / Uren)

By contrast, the defendants suggested that a 4m high fence was suitable and therefore satisfied their duty towards the public. They also suggested that the risk of a golf ball leaving the area and striking someone was so small that it did not justify further precautions being taken (the Bolton argument). Liverpool County Court heard evidence that in the five years prior to the incident, there had been few, if any, misdirected golf balls leaving the area and no previous injuries reported in that period. While these statistics are not as impressive as those cited in Bolton, they are enough to suggest that the defendant club had met their duty of care. Given these conclusions, while the injury was a tragic accident caused by golf, the claim against the club failed.

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Jason Richardson arrested for Speeding

February 16, 2009

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ESPN report that: Jason Richardson (Guard for Phoenix Suns Basketball Team) was arrested Sunday night in Scottsdale, Arizona and charged with reckless driving, excessive speeding and failure to use a child seat for his 3 year old son, who was in the back seat of the car.

Richardson allegedly was driving at 67mph in a 40 mph zone, although police sources say this later increased to 90mph in a 35mph zone, before he was pulled over by officers.

Source: http://sports.espn.go.com/nba/news/story?id=3910921&campaign=rss&source=ESPNHeadlines

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Toddler survives at bottom of pool for 20mins!

February 11, 2009

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Victoria Derbyshire interview with the mother

“A two-year-old girl has made an almost complete recovery after spending nearly 20 minutes at the bottom of a pool. Scans showed Oluchi Nwaubani had been starved of oxygen for some 18 minutes – three times longer than the brain can usually survive – in Bromley, London……As well as the rapid, high level of intensive care Oluchi received, her youth combined with the cold water may also have helped her beat the odds. “

Source: http://news.bbc.co.uk/1/hi/health/7881143.stm

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Monster Truck Death

January 19, 2009

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monster-jam-truck-game1

Yet another injury to spectators watching a sporting event, this time it concerned spectators at a Monster Truck Show in Washington, USA. A piece of the drive train from one of the trucks came loose and catapulted into the crowd on Saturday night killing a 6yr old boy and injuring another spectator.

“Witnesses described the boy, Sebastian Hizey, being struck in the head by a Frisbee-sized chunk of metal that tore off a truck doing doughnuts during the Monster Jam show Friday night in the Tacoma Dome. Police gathered loose parts of the drive train and the drive train loop, a special monster truck device that is supposed to hold the drive train on the vehicle, Bill Easterling, senior operations director for Feld Motor Sports of Aurora, Ill., told The Associated Press on Sunday. He said he could give no further details or description of the loose parts, including where they were found. “I’ve never seen the loop or the drive shaft parts come off like this,” said Easterling, whose company is the promoter of the show. Tacoma police Officer Mark W. Fulghum said no further information on the parts or other aspects of the investigation would be available before Monday at the earliest.

The second spectator struck by debris was taken to a hospital, but authorities haven’t disclosed his name or condition.”

Source: http://www.google.com/hostednews/ap/article/ALeqM5gIDYmzSgjWCSJqnGyeUzktyhrKxgD95PS9G80

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Near miss on frozen lake

January 6, 2009

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toddler and ice lake

It is a scene of astonishing naivety. Sliding gingerly across the ice with his tiny hands grasped tight by two adults, this little boy has no idea of the risk lying beneath his feet. And though the thick frost on the lake in Epping Forest, Essex, looks firm, experts today warned that this scene could so easily have ended in terrible tragedy.

Source: Daily Mail – http://www.dailymail.co.uk/news/article-1107050/Treading-ice-The-couple-took-toddler-walk–frozen-lake.html

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