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Heads Up: Concussions, Class-Actions and the National Hockey League

October 22, 2015

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By Brianna Meyer – Thompson Rivers University 2L JD Student

The Stanley Cup. Sidney Crosby. Wayne Gretzky. These buzzwords ignite dreams of aspiring elite hockey players across Canada as children of all ages commence the journey to the National Hockey League (NHL). For those that make it, the NHL provides the ultimate platform of hockey excellence. A dream come true. But at what cost?

For over 200 former NHL players, the lasting effects of head injuries sustained during their professional hockey careers have motivated a class action lawsuit against the NHL. The players allege that the league was wilfully withholding information about the long term health effects of repeated head trauma and was actively encouraging dangerous behaviour.

This lawsuit follows the successful $765 million dollar settlement for players of the National Football League sustaining similar head injuries. Boston University researchers have diagnosed several deceased NHL players as victims of trauma-related brain disease. Although this area of research is novel and still advancing, Boston University has identified a link between chronic traumatic encephalopathy (CTE) and repeated blows to the head. CTE is a degenerative brain disease found in former deceased athletes often identified by the presence of hyperphosphorylated tau (an abnormal protein in brain cells).

This link is currently being questioned by the NHL who has since subpoenaed records from the Boston University researchers conducting these studies. NHL commissioner Gary Bettman has rejected the very notion that the link between CTE and sports-related concussions exists at all. Besides this league denial of a connection, there are other significant obstacles that stand in the way of former NHL players claiming damages from the NHL for their injuries. The majority of the claimants are retired, which raises questions as to the limitation period upon which this litigation is brought. In addition, we are talking about professional hockey players who grew up playing in minor and amateur hockey leagues. Isolating causation and liability specifically to the NHL will be a significant burden to prove.

Despite these impediments, this issue is not going away. In February 2015, Steve Montador died at the age of 35 from an undisclosed cause. He had been exhibiting signs of a brain disorder including depression, memory problems and erratic behaviour leading up to this death. An examination of his brain post-mortem revealed that he suffered from CTE. The scope of this class-action lawsuit demonstrates that Steve Montador is not alone.

Changes to the NHL official rules to prohibit illegal checks to the head were made in 2011. But is that enough? For players suffering from the long-term effects of traumatic brain injuries sustained while playing professional hockey the answer is clearly no. When elite athletes elect to participate in a sport there are always inherent risks. However, the core of this lawsuit alleges that the NHL withheld the very information players needed to know to make a rational, informed choice about taking such risks. The lawsuit emphasizes that the NHL has the capacity and the resources to better prevent head injury but failed to do so. Players can only consent to risks they are aware of. The NHL, it is alleged, blurs the lines of what players actually consent to.

CTE. Second-impact syndrome. Traumatic brain-injury. These words are killers of professional hockey dreams unless there are significant changes in the prevention, treatment and and return-to-play protocols of concussed players in the NHL. Legal accountability is one mechanism that can trigger this process. For the sake of aspiring hockey players across North America, I hope that the courts can force the NHL back into the reality of the game to deal with this issue head on.

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Why Lloris’ head injury was so severe that even the FA and Tottenham lost consciousness…

November 6, 2013

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brain

Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.

This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.

 

WHAT HAPPENED

Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.

After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.

 

SO WHAT NEGLIGENCE LIABILITY EXISTED?

While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC) [2000] EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.

What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:

  Watson Lloris
No player liability for the initial blow Eubank punch Lukaku challenge
No referee liability Referee stopped fight correctly Referee stopped game correctly
Rules of the game were followed BBBC rules on medical treatment followed At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules Neurosurgeons attacked the BBBC rules pre-watson incident Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby

 

If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:

 

The Medical Professionals from the Club, and/or the Manager

Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries [6]:

All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”

Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:

Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”

and further on that:       

“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”

The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,

If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”

Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:

“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”

This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.

The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:

“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”

Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?

If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.

  

The FA / Premier League Rules.

Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.

Indeed, just as the Court of Appeal held in Watson that:

“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” [121]

So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.

Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?

As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.

  • For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered. 
  • Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
  • Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”

What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.

 

Recommendations

This article would suggest four actions need to be taken urgently:

  1. The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
  2. The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
  3. The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
  4. Consider whether independent medical teams should have ultimate decision-making authority over clubs.  Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.

Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….

 

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

October 25, 2013

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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.

 

Implications

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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Britain’s Steroid Dilemma – Not dangerous enough to criminalize but dangerous enough to be made safer

October 21, 2013

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By Kris Henderson – Thompson Rivers University 2L JD Student

The British Health Authority recognizes the adverse health effects of anabolic steroid use on the population and aims to make the population healthier. Their recommendation, however, is not a ban on all performance and physique enhancing substances. The National Institute of Health and Care Excellence (NICE), is instead recommending that gyms and other athletic training facilities provide sterile needles for individuals using intravenous anabolic steroids all in an effort to reduce the transmission of blood borne pathogens.

Providing clean needles for intravenous drug users is not a new concept, nor is it without its critics. The Vancouver safe injection site – InSite – located along East Hastings in the heart of Vancouver, Canada not only provides drug users with sterile needles, but staff provide first aid to individuals who fail to recognize their limit and overdose. Usually this consists of simply providing oxygen to the user. Helping two overdosed users in the safe injection site saves the provincial health authority the equivalent of InSite’s monthly operating budget as of 2010. The criticism of the site being open is therefore not cost of operation. The question is really what effect is it having on drug use? Drug use rates in Vancouver have not, by most accounts, seen a decrease since InSite began operating. Proponents of InSite, however, claim the true benefit comes from the reduction in blood borne disease transmission through the reduction of needle sharing. Other health authorities in Canada have also adopted clean needle programs to certain extents, all with differing measures of success.

It is easy to see that the potential clientele being served by this program in Britain would be drastically different that those being served by the clean needle programs in Canada. Individuals injecting themselves with anabolic steroids for the purpose of better athletic performance are obviously not the same ‘vulnerable population’ of heroin and other hard drug addicts being served in Canada. But to what extent does that matter? According to the NICE report, an estimated 70,000 people aged between 16 and 59 in England and Wales are thought to have injected anabolic steroids in the last year. While it is certainly not a staggering percentage of the population, it has proven sufficient to get the attention of the national health authorities.

Even if the clean needle program has no effect on user rates, any reduction in blood borne disease transmission can be measured as a success, both from a moral and government financing standpoint, as any publicly funded health care regime would see a decrease in costs associated with the treatment of these diseases.

This latest recommendation from NICE is sure to once again draw the ire of the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC). Drug laws in England were heavily criticized during the lead-up to the London 2012 Olympics. Unlike previous host countries that stiffened criminal laws regarding personal possession and use of anabolic steroids and human growth hormones, the British government refused to criminalize possession and use of many performance enhancing anabolic steroids. The government stance was that athletes who use these substances during competition should face severe penalties such as lengthy bans from competition, but not criminal sanctions.

The NICE recommendation will likely affect the use of steroids in the UK, but what are the broader implications regarding the public perception surrounding their use? While I have no hesitation in accepting that the program will likely reduce the transmission of blood borne diseases such as various strains of Hepatitis and the HIV virus, the provision of sterile needles to steroid users may have a larger impact on sport and culture in the UK.

The unintended consequences of reducing the risks associated with steroid injections is very different than that of hard drug use. Individuals crippled by hard drug addiction, it is argued, are less likely to consider the sterility of their needle before making their next injection, or even their first injection. Potential or regular steroid users, however, see a reduction in the potential health risks to an activity that is still legal. The government position is that users should face heavy penalties though steroids aren’t so dangerous as to warrant its criminalization but dangerous enough to be made safer.

Will we see anabolic steroid use in the UK rise as a result of implementing a sterile needle program? Only time will tell. What we know for sure is that those looking to prevent athletes from using anabolic steroids in Britain through deterrence will be fighting an even steeper uphill battle, with an even greater reliance on the WADA.

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Slippery when wet: Robert Wilson v. GP Haden t/a Clyne Farm Centre [2013] EWHC 229 (QB)

February 25, 2013

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Read the full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/QB/2013/229.html

The claimant (Robert Wilson) received £167,514 damages from the High Court for a lumbar vertebra fracture sustained while sliding down a fireman’s pole from an obstacle course on 4th August 2009. He alleged that the defendant’s adventure activities centre had breached their duty towards him in negligence and under the Occupiers’ Liability Act 1957 through both the actions (or more accurately omissions) of the instructor and through failing to provide an adequate safety system to cushion his landing from the obstacle. Ultimately he only succeeded in the former, but the case is interesting for the causative reasoning.

 

BACKGROUND

The incident occurred during the final dismount of the “Burma Bridge” section of the ‘Challenge Valley Course’. This course had been in operation for the last 20 years without serious injury and had been used by an estimated 300,000 people. It was set in a wooded area of the Defendant’s centre and comprised 16 obstacles of varying difficulty. The “Burma Bridge” obstacle was in three sections, an inclined log with footholds leading to a wooden platform set in the trees. From here, participants made their way across a rope bridge to a platform set in a second tree from which they then dismounted by using either a vertical scaffold pole or a ladder.

On paper, there is no allegation that the obstacle, activity or centre was inherently unsafe, indeed the ‘Burma Bridge’ was rated by the defendant as having a risk of 3 (for both likelihood of risk occurring and severity) on the traditional five part scale, and while the defendant had identified a number of contra-indicated groups (children under 10yrs, participants with certain special needs etc), the claimant was a 46yr old part-time scout leader, who had already completed the first obstacle (a 6ft log wall) without undue difficulty. Although there is evidence that he didn’t see himself as particularly athletic and had made self-deprecating jokes about being a “fat taxi driver”, there is no suggestion that he was not capable of safely navigating the course with the other 11-12 scouts attending the centre as part of a camp.

Clyne Farm Centre was a member of the British Activities Holiday Association (BAHA) and subject to their BAHA Code of Practice. There is evidence that they had undergone internal and external safety inspections and sensible risk assessments and instructor training notes had been produced in advance of the accident. At the time of the incident, an “occasional” instructor (Miss Haines) was accompanying the group to demonstrate and explain each obstacle. No criticism was made of Miss Haines’ qualifications or experience.

The key question facing the Court was whether these Codes and documents were appropriate and/or followed at the time of the incident?

 

INSTRUCTOR FAILURE

On the day in question, the weather was wet and there had been heavy rain the night before. This was important as the Court heard how this increased the slipperiness of the pole, resulting in a number of dismounts that went faster than the participants were expecting. The Court held that Miss Haines did give two warnings about the weather conditions (once at the start of the activity [26] and repeated again during a demonstration [31]). The Court however rejected her evidence that she had given a third warning just before the dismount down the pole, as this was contradicted by her oral evidence [117].

Indeed, Mrs Justice Swift DBE was highly critical of Miss Haines’ “fanciful” evidence [114], preferring instead that of the claimant and the witnesses [110-113]. This was an important conclusion as Miss Haines had tried to argue that the claimant was the author of his own misfortune by showing off and deliberately letting go of his hands while sliding down. The Court however forcefully rejected this account [58].

The allegations of a breach of duty by Miss Haines can be summarised into two specific areas:

  • Failure to demonstrate, or properly instruct the correct technique to be adopted when descending the fireman’s pole.
  • Failure to offer the option of using a ladder to descend

The other suggestion raised, that Miss Haines failed to ensure that the Claimant had a good grip on the pole or had been stabilised as he moved to the platform, was later dropped following evidence that any attempt to support the weight of the participant would have been unsafe for both parties [145].

It is perhaps more straightforward to tackle the latter area first. The Defendant risk assessment and training notes specifically stated that all participants should be given the option to descend via either the firemen’s pole or a ladder located alongside the platform [14]. While the Court held that Miss Haines had failed to explicitly offer this choice of alternative methods, it was probable that the claimant would have continued to use the pole (despite his express oral evidence to the contrary being rejected as having the benefit of hindsight) [146].

By contrast, the failure to demonstrate or instruct the correct technique is potentially more complex. Importantly, the Court accepted that there was not an absolute need to perform a demonstration for every obstacle, rather the nature and substance of this briefing was a discretionary judgment by the instructor taking into account the risks and the group experience [135]. The problem in this instance is that Miss Haines did not adapt or review her briefing to match the group.

Miss Haines concluded that the method of sliding down a firemen’s pole was so obvious that it did not need either a demonstration or further instructions beyond that participants should grip it tightly [125]. To a certain extent, the competent performance of the younger children confirmed this [37]. Unfortunately, the claimant was not a young child and had no experience or knowledge in how to slide down the pole [20]. It is not challenged that the accident was caused because the claimant ultimately did not wrap his legs around the pole to slow his descent [125], the question is whether the instructor should have given clear and specific oral instructions, or performed a demonstration, or some combination thereof? Somewhat surprisingly, the defence team did not introduce any additional evidence on this point from any other instructors at either the Centre or in the wider industry as to what they felt was appropriate or what their practice was [139]. This seems a curious omission.

Ultimately at [144], the Court seemed content to leave this choice of methodology to the instructor’s professional opinion, what is clear however is that given the importance of ensuring that there was an instructor accompanying the group and advising on the safe way to navigate the obstacles, this omission to provide ANY advice constituted a failure to exercise proper care, compounded by the lack of adaptation for older participants [140-144].

 

SOFT LANDINGS

The other limb of the claimant’s case is that the defendant had failed to provide appropriate shock absorbent material (for example loose particulates like woodchip, or bark) to reduce the risk and/or severity of any injury caused by impact with the ground. This was important as the Court accepted that the Claimant descended the pole at quite a speed with “his bottom taking most of the impact on landing” [49].

The Court heard evidence on this issue from two expert witnesses, Mr Andrew Petherick (claimant), Mr William Mackay (defendant) who conducted a joint inspection of the accident site on 16th March 2012. Although this 2012 examination of the site was potentially compromised by earlier excavations (not notified at the time to the claimant) which had been requested by the defendant’s initial expert (Mr Alan Preston) to refute whether the base of the pole was made of concrete [78], the Court did accept that the defendant merely complied with the requests from his expert and there was no intention to deceive [87]. Good practice would however suggest that experts in this area are made aware of their responsibilities to the court process.

The Court also discussed at length the specifications provided by various British and European Standards (BS EN) on the type and depth of materials for play:

  • BS 5696 ‘Play equipment intended for permanent installation outdoors’ (1976)
  • BS EN 1177 ‘Impact absorbing playground surfacing’ (1997)
  • BS EN 1176 ‘Playground equipment and surfacing (2008)
  • BS EN 15567 ‘Sports and recreational facilities – Rope Courses’ (2007)

While there was some dispute as to whether these standards applied to this case, and if so, to what extent, ultimately though, this proved to be somewhat of a red herring. Although technically the BS EN standards did not have retrospective effect, the BAHA Code of Practice stated that “the operator must be able to demonstrate that the course meets current standards” [Appendix 7]. As such, the BS EN standards should be used as guidance as to what is appropriate [149]. Interestingly, there is no question that the defendant was not aware of the requirements of the standard, as he had been on the working party to initially devise it! [150]

So, what were the specifications? The interpretation of the relevant standards centred around two key phrases [68]:

Critical fall height – “The height from which is assessed a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury”

And the

Maximum free height of fall – “The distance between any accessible part of equipment intended for play and the surface underneath”

From these two distances, it was possible to calculate the necessary minimum particulate depth for the landing area. The latter free height of fall determination was also important, because if the height had been greater than 3m, the defendant would have been in breach of BS EN15567 which required a braking device to be used. Three alternative formulations of calculating this height were discussed [100]:

  • from the seated position on the platform – 3.1m
  • from the top position of the hands in a hanging position (which would have been greater than 3m). This was Mr Petherick’s preferred choice as it represented a worst case scenario [101]
  • from a climbing position – Mr Mackay’s preferred choice, which according to Table 2, para 4.2.8.1 of BS EN 1176:2008, this distance is calculated from a maximum hand support (3.5m) minus 1m (which would result in a fall height of 2.5m)

The Court held that this latter figure was correct, thereby negating the need for a braking device. Ironically, while Dame Swift was critical of Mr Mackay’s understanding of the fall height calculation [105], it would seem that she has similarly erred in her calculations in [153] that the depth of particulate should be 250mm, as this omits the additional 100mm required by the table to allow for particulate displacement. Surely the correct depth value should be 350mm?

When this calculation is combined with Mr Petherick and Mr Mackay’s joint statement [72], this error is not critical, as the statement clearly identifies five areas of agreement that the impact attenuation area should be:

  • 300mm deep with an additional 100mm to allow for displacement of the particulates
  • The minimum dimensions of the landing area beneath the pole were laid down by BS EN 15567 and should have been approx. 1.38m (depending on the final agreed fall height)
  • Lined with polythene (terram) to prevent impregnation of the landing area by soil or water
  • Should contain no hard objects such as tree roots
  • Should be regularly raked / dug up to avoid compaction

The reality for Clyne Farm is unfortunately a catalogue of errors, with none of the above requirements being met:

  • Particulate depth was only 150mm
  • The distance from the pole to the nearest edge of the tree was only 0.77m [90]
  • There was no terram lining [92]
  • Substantial tree roots were visible below 150mm in the landing area [91]
  • The contemporaneous photograph of the landing area appeared to show heavy compaction in the vicinity of the bottom of the pole [94]

It is a fairly easy jump from this conclusion to establishing a breach of duty to provide a safe landing area. Surprisingly though, the case then came to a sudden stop. When proving causation, the Court rightly held that it was necessary to prove whether the “failure to provide adequate impact attenuation caused or materially contributed to his injury?” [158]

The problem for the Court is that it was not enough to state that there was a breach, rather the claimant also had to establish a causal link showing that proper impact attenuation surfaces would have protected against or reduced the severity of his injury. The failure to introduce any expert medical or technical evidence to support this, left the court with no choice but to dismiss this part of the claim [165]!

To a certain extent this is an unsatisfactory situation. It is also somewhat difficult to reconcile with the other part of the claim for instructor breach of duty, because if the woodchips had been compliant with the relevant standards, then this could have been used as a defence against the injury. As it is, we are left with the situation that the breach of duty to instruct ‘caused’ the injury (the falling uncontrollably) while the lack of suitable impact attenuation surfaces (the heavy landing) were held to also be a breach but not necessarily causative. I’m confused, isn’t it the landing that hurts not the falling?

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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

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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 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.

  

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?

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Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided

March 21, 2012

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While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html

The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.

While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.

Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.

While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The  defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.

The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:

“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”

The Court also held that the instructor should have:

  • Been aware that there had been previous injuries sustained historically from other climbers
  • observed that the people P was climbing with had also jumped from the wall, prior to P’s injury

This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.

While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.

It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?

If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.

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Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

January 11, 2012

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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

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Ask not for whom the bell tolls

January 6, 2012

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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.

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Should pitch inspections be kicked into the long grass?: Sutton v. Syston Rugby Football Club Ltd [2011] EWCA Civ 1182

October 31, 2011

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The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.

Read the BBC news report or the full case transcript.

 

FACTS OF THE CASE

On 2nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.

About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub [3].

The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” [5]

They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:

1)    What was the appropriate standard to judge the quality of the inspection

2)    Whether this inspection would have revealed the stub (causation)

 

INSPECTION STANDARD

The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”

So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.

Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:

Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas [13].

In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!

This test therefore rejects the earlier first instance decision [11]:

“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”

 

WOULD AN INSPECTION HAVE REVEALED THE STUB?

Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service [2003] 1 AC 32, the Court of Appeal was unsure that the stub could have been discovered [17]. In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails [17].

 

WIDER IMPLICATIONS

An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at [13] Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

 Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” [18]

I suppose this begs the obvious question, when should courts interfere?

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