Archive | January, 2012

Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

January 11, 2012

0 Comments

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

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

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

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

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

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

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

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

RISK

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

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

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

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

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

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

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

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

Advertisements
Continue reading...

Perspective and Probability in Heli-skiing

January 7, 2012

0 Comments

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

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

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

Continue reading...

Ask not for whom the bell tolls

January 6, 2012

0 Comments

The words “Ask not for whom the bell tolls” should be ringing loudly at NHL headquarters following John Branch’s excellent expose (click here, here and here for the links) on Derek Boogaard, fighting in hockey, and brain injuries last week in the New York Times. I wrote an article in The Globe and Mail (click here to read it) earlier this year that suggested the NHL is vulnerable to a lawsuit on similar grounds to that which has been launched against the NFL.

The NFL’s concussion crisis was put into the spotlight starting in 2007 by Alan Schwarz of the New York Times. Schwarz has since written dozens of articles for the Times about brain injuries in football. As Ben McGrath of The New Yorker (click here for the piece) wrote last year, ‘Credit for the public’s increased awareness of these issues must go to the Times, and to its reporter Alan Schwarz, whom Dr. Joseph Maroon, the [NFL Pittsburgh] Steelers’ neurosurgeon and a long time medical adviser to the league, calls “the Socratic gadfly in this whole mix.”’ Schwarz’s reporting sparked and catalyzed change in the NFL’s approach to brain injuries. The league is now named in about a dozen concussion-related lawsuits.

The NHL has been painfully slow to implement real changes that would reduce the occurrence of brain injuries. Just like the hockey enforcer who is tapped on the shoulder by his coach or just knows he must answer the bell, the NHL has got to see that the writing is on the wall (on in this case, splashed on the pages of The New York Times), that the time is nigh for change and know that the bell tolls for thee.

Continue reading...