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Child Labour or a Privilege to Play? The CHL’s Class Action and Washington’s Legislated Exception

November 22, 2015


By Richard Wong – Thompson Rivers University 2L JD Student

In October 2014, class actions were commenced against the leagues and teams that form the Canadian Hockey League (CHL). Players who entered into contracts with teams in the Western Hockey League (WHL), Ontario Hockey League (OHL) and Quebec Major Junior Hockey League (QMJHL) seek to recover back wages, vacation pay, holiday pay and overtime pay in accordance with applicable employment standards legislation. The plaintiffs allege that the standard form contracts signed by all players are employment contracts that contravene minimum wage standards within their respective jurisdictions. The Statement of Claim alleges that the average player only earns $35 – $50 per week for 35 – 40 hours of work.

In August 2015, Engrossed Senate Bill 5893 (the “Bill”) was passed in the state of Washington – home of the Seattle Thunderbirds, Everett Silvertips, Tri-City Americans and Spokane Chiefs of the WHL. Section 3(p) of the Bill explicitly excludes from the definition of employees: individuals between the ages of 16 – 20 “in his or her capacity as a player for a junior ice hockey team.” The Bill states the legislature clarified that junior ice hockey players are not employees in order to “assist the financial stability of public facilities districts and ensure the viability of junior hockey in the state.” The Bill also states that the legislators recognize that junior ice hockey teams provide “significant benefits to their players by teaching them valuable athletic skills and interpersonal life skills,” in addition to providing “significant financial support to their communities as tenants of arenas owned, operated, or managed by public facilities districts.”

Concerning this passing of legislation, it has been reported that a memo written by Assistant Attorney General of the state advised an investigator with the Labour and Industries Department that junior hockey players should be considered employees and be protected under minimum wage law. These views were considered by the investigator and reiterated in a report that advised colleagues that “players should be considered employees instead of trainees” because teams are receiving immediate benefits from their players. In addition, it was reported that players from outside the US obtain P-1 Visas which are required for internationally recognized athletes to “work.” The investigator used this as another example to support her recommendation that WHL players should be treated as employees and protected under child labour laws.

Considering the passing of the Bill, even against the recommendations of investigators and the Assistant Attorney General, it appears the legislators favoured the financial and social value these Washington teams bring to the state – over the interests of the athletes providing their services. Although I acknowledge that playing major junior hockey is a privilege, and agree that these teams provide their players with valuable skills, I cannot comprehend how these factors justify overriding child labour laws.

The justification as stated in the Bill is blatantly prejudicial. It seems to mean that even though there are child labour laws in place, and even though these athletes would otherwise be defined as employees in law, they should nonetheless be deprived of protection in order to sustain the financial viability of arena districts. This means that no matter how many hours these players are required to provide their services (because they have no choice to – either they agree to or do not play), they should be deprived of the legislated minimum wage because their services generate money for the state.

Passing of this Bill leaves one to wonder at what expense does the social or financial value of sport override the rights and interests of those who participate? Will legislatures from other states and provinces that have teams in the WHL, OHL or QMJHL follow Washington’s justification for making major junior hockey players the exception? Or will these jurisdictions recognize the backlash that this decision will bring and that minimum wages for these particular athletes is a cost that teams should pay? It will be interesting to see the developments in these class actions and if child labour rights continue to be recognized at law in this context. This will require careful deliberation of lawmakers in these jurisdictions. If the legislatures choose not to involve themselves in such a decision, it will be up to the judiciary to weigh the value of sport against the rights of its participants.


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From Sport Courts to Law Courts – Are Lawsuits the Answer for Benched Players?

October 18, 2015


By Samantha Sayn-Wittgenstein – Thompson Rivers University 2L JD Student

Increasingly, more teenaged “benched athletes” and their families are looking to the courts when they are dissatisfied with playing time. Sport scholarships are increasing, and youth sports are becoming over-organized and professionalized. In turn, greater time and monetary investments from young athletes and their families are required. With this increased input, the demand for more output grows accordingly. If parents are spending thousands of dollars on their child’s athletics, they expect adequate development and exposure to collegiate scouts. When this development and exposure doesn’t occur, some parents are willing to spend thousands of dollars on lawsuits against coaches, leagues and associations.

More and more, participation in high school or collegiate sports is being viewed as a “career” or a high pressure job. In 2014, sport scholarships amounted to just over $15 million in Canada, a number which doubled in just seven years. The more money that is available in scholarships, the greater the pressure on athletes to perform and receive one of them. Furthermore, with youth sport organizations such as the CIS (Canadian Interuniversity Sport) in Canada or the NCAA (National Collegiate Athletic Association) in the US becoming more similar to professional sport associations, the proprietary interests of youth sports has grown.

The recent case of 16-year-old volleyball player Audrey Dimitrew who had high hopes to play in front of varsity and college scouts after making the team of the Chantilly Juniors in Virginia, but was benched and then sued the association, is an example of the pressure to impress. But can the courts interfere with the coach’s discretion to bench a player?

Another example is the William Munck case about an attorney, who sued the Dallas Lacrosse Academy for benching his son. It made national headlines as Munck filed the lawsuit under the Racketeer Influence and Corrupt Organizations Act. This brings up the question whether or not it is appropriate for parents and players to bring their dissatisfaction and disagreement with a coach’s decision to the courtroom.

The answer by the courts continuously seems to be that playing time, or even mere participation in school athletics, is simply part of a multifaceted education, and not constitutionally protected. Further, courts are hesitant to get involved in the decisions of private organizations such as leagues and associations. Even if the courts were the right venue to address and vent about playing time, what are the remedies available to them?

The volleyball player’s case resulted in the court noting that it is a pity the athlete wasn’t able to play for a season, but that the law does not stipulate for judicial interference in such cases, while the Munck case reached a settlement in which the Dallas Lacrosse Academy agreed to a number of conditions including not to influence or interfere with the athlete’s playing time and scholarship opportunities. In the volleyball case it even threatened to shut down the whole league as it feared this case might open the floodgates to more parents suing.

Courts exist to adjudicate serious sporting disputes when teams or leagues may not be equipped to deal with such as discrimination against players of a specific ethnicity or gender. However, the volleyball and lacrosse cases were not about playing time being illegally restricted due to race or sex but was instead determined on factors such as skill, development and commitment.

Lawsuits like the ones Munck and Dimitrew produced threaten the existence of leagues and thus general access to sports for youth. It might be time to remember that sport is “played” and participants should have fun and that only a very small percentage of varsity or collegiate athletes will receive scholarships.

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In Loco Scholam: Analysing Woodford v. Essex County Council (and others) [2013] UKSC 66

October 25, 2013


Link to the full Supreme Court Judgment

Glancing quickly at the 13yrs since the initial swimming accident, you may be forgiven for thinking that Woodford v. Essex CC contains more history, politics, drama and civics than physical education. Indeed, it is perhaps somewhat surprising that despite Wednesday’s Supreme Court ruling, 4 other trials and 2 Health & Safety Executive reports, the case is still only in its initial stages! However delve a little deeper and this somewhat tangled web belies the case’s considerable importance for determining and apportioning negligence liability through primary or non-delegable duties.

The infographic below may help clarify the current litigation (Click here to download as a PDF version): Woodlands

What happened?

At its core, the case concerns ten-year old Annie Woodland, who suffered a serious hypoxic brain injury while taking part in a school swimming lesson on 5th July 2000.  As part of their National Curriculum obligations, Whitmore Junior School had contracted with Beryl Stopford (trading as Direct Swimming Services) to provide swimming lessons for their pupils at the local pool in Essex. Mrs Stopford in turn assigned two employees to deliver the lesson and be present as a lifeguard. The class was streamed into two groups, with the claimant (Annie) swimming with the more experienced group from the deep end into the shallows. Tragically, during the lesson, the claimant got into trouble and was found “hanging vertically in the pool” and in need of resuscitation.

The case arises because the exact nature of who found her and the quality of the supervision leading up to this point has yet to be determined by the courts and as such is fiercely disputed by the parties. In the meantime, both parties are arguing about what duties are owed rather than establishing the facts.

  1. Round1 (Claimant 0 – Defendant 1): Originally in 2007, the solicitors for the 1st Defendant – The Swimming Teachers Association (the trade body that provided insurance for both Mrs Stopford and Ms Maxwell) admitted full liability for the incident. However in 2009, when new solicitors (Fishburns) took over the case, Fishburns immediately retracted this admission, leading to litigation on whether an admission of liability pursuant to CPR r.14.1A(5) could be retracted? (the Court of Appeal subsequently held it could, particularly in the interests of justice, and the CA judgment contains a good summary and analysis of the factors that would need to be considered).
  2. Round2 (1-1): Perhaps emboldened by this conclusion, Essex County Council tried to argue that responsibility lay solely with the STA for the alleged negligence, as there was no direct vicarious or employment relationship between the school and the ‘independent contractors’ (Mrs Stopford, Ms Maxwell and Mrs Burlinson). By contrast, the claimant argued that the school had a ‘non-delegable’ duty of care towards its pupils.


Non-Delegable duties 

Both the High Court (Langstaff, J) and the majority of the Court of Appeal (Tomlinson & Kitchin LJJ, Laws LJ dissenting) stated that the education authority did not owe a ‘non-delegable’ duty, indeed the Court of Appeal suggested that they were:

“precluded from recognising the non-delegable duty of care for which the Appellant has argued on this appeal….[given] the imposition of such a duty would have significant implications not just for all education authorities but also for all those who operate schools and hospitals…” [33]

The recent decision of the Supreme Court overrules this and Lord Sumption (giving the leading opinion) summarises non-delegable duties at [23] as applying where:

  1. The claimant is especially vulnerable and/or dependent on the protection of the defendant against the risk of injury

  2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which places the claimant in the actual custody, charge or care of the defendant, from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

  3. The claimant has no control over how the defendant chooses to perform these obligations, i.e. whether personally or through employees or through third parties

  4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

  5. The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.



While Lord Sumption may have queried that:

“It must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation.” [2]

echoing Lord Justice Tomlinson’s earlier perceptive comments in the Court of Appeal that:

“If it is, the authority’s admission that the class attended for a swimming lesson at the pool under the control and supervision of the Second Defendant’s servants or agents may not tell the whole story. There would be scope for enquiry as to the extent to which the class in such circumstances remained in the care of the teacher from the school. The notion that the authority by its employees had no control over the manner in which the swimming lesson was conducted or supervised may be wholly unreal. The circumstances may be such that it is quite unnecessary to be searching for a non-delegable duty in order to impose liability upon the authority.” [36, CA]

The judgement does have important policy implications for schools and other providers. Interestingly, it appears that in practical terms, the law has finally caught up with what teachers and education professionals have been preaching for years, namely that schools should be ultimately responsible for the safety of pupils.

Indeed, guidance from AfPE (Safe Practice & Physical Education, (2012) [3.4.26]) in relation to the earlier CA decision stated that the (2012) judgment,

“does not alter a school’s continuous duty of care to students where activities take place on site, whether delivered by a teacher or support staff, such as a visiting coach, because the workforce regulations demand that the coach is managed by the teacher so the teacher maintains responsibility even though someone else teaches the class.”

What is now clear from the Supreme Court judgment is that schools utilising specialist coaches or support staff to deliver aspects of the National curriculum may retain a liability that goes beyond performing initial recruitment and suitability checks for the role, and is akin to a ‘non-delegable’ duty to protect the safety of the pupils regardless of whether any contractual or employment relationship existed with the provider. Importantly, this duty extends to activities performed off-site, by non-teachers, unsupervised by any school staff, as long as the purpose of the activity can explicitly be linked to traditional school or national curriculum obligations.

Lady Hale argued at [42] that this was not as big a policy change as it might look:

“large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable.”

In making this statement, Lady Hale is explicitly countermanding Lord Justice Tomlinson’s suggestion from the CA judgment that:

“The days are long gone when we ignored the incidence of indemnity insurance. One would expect the costs charged to the Fourth Defendant [Essex CC] for the service provided by the Second Defendant [Beryl Stopford] to reflect the cost of the Second Defendant arranging adequate insurance. The only purpose of the present appeal is to ensure that liability is brought home to a defendant with sufficient resources to meet the possible award.” [34, CA]

Lady Hale’s approach seems much more legally justifiable and more accurately reflects the purpose rather than the delivery mechanism of the activity. Lady Hale also suggests that this reasoning is more likely to be accepted by “the man on the underground” [29] (it would seem that riding on omnibuses is so 20th century!)

That said, Lord Sumption was careful to limit the extent of this liability, suggesting at [25(3)] that schools:

“Are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions…..They will not be liable for the defaults of independent contractors providing extra-curricular activities outside of school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours…”

Of all the areas of the judgement, this latter section gives the most potential for future litigation, as potential claimants will no doubt argue that an educational field-trip during the school day could be equated to a core function. Whether it will or not, is ultimately a question of fact, (and possibly irrelevant given the presumed concurrent vicarious liability of school staff accompanying the pupils). In theory at least though, this principle is an expansion of liability that education and healthcare providers would be well advised to note.

In conclusion, the Courts may have rightly disregarded the oft-cited loco parentis as unhelpful, given the very different responsibilities of parents and schools, however I would suggest the legacy of the Supreme Court judgment is to create a new maxim: in loco scholam (in place of the school), let’s see if that catches on……

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

March 27, 2012


Case Transcript:

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23rd 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.



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?

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

March 23, 2012


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.

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2011 Public Inquiry into McRae Helicopter Crash

September 14, 2011








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:

More details of the case can be also found in our original blog post about the 2009 Air Accidents Investigation Branch Report (AAIB):

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.



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] 



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].



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:  

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

October 17, 2010


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

Read the full case here (

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]:


4.1 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.


5.1 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.


6.1 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: 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?


Richard Davenport has now re-recorded his personal best at an athletics meet in the summer:

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:

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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


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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