Archive | Tort RSS feed for this archive

Taken out at the Ball Game: Spectator Safety and the Assumption of Risk Doctrine

October 13, 2015

0 Comments

By Ian Walker – Thompson Rivers University 3L JD Student

A long-time Oakland Athletics fan is suiting Major League Baseball in a proposed class-action lawsuit. The suit claims the league does too little to protect fans from fast-moving balls and splintered bats, particularly along the first- and third-base lines.

The lead plaintiff and season ticket holder, Gail Payne, feels vulnerable because her seats are not protected by netting and a fan beside her was injured by a foul ball. The lawsuit cited a 2014 study by Bloomberg News that says that 1,750 spectators are injured annually at MLB games.

The suit claims a number of factors have increased the risk to spectators, including pitchers who throw harder, bats that splinter more easily, the league-wide initiative to increase the speed of the game, and modern distractions like video monitors, in-arena Wi-Fi, and interactive apps on smartphones.

The suit also claims that MLB’s failure to extend protective netting is “particularly egregious” since it installed netting in front of dugouts and required first- and third-base coaches to wear helmets, while spectators just as close to the action are left with no protection.

The case brings to light an important doctrine of sports-related negligence cases: the assumption of risk doctrine. According to legal historian J. Gordon Hylton, the doctrine’s application to baseball can be traced to the 1913 Missouri Court of Appeals decision in Crane v. Kansas City Baseball & Exhibition Co. The case decided that because Crane had chosen to sit in an unprotected seat, he had assumed the risk of his injury from a foul ball. The court held, however, that the operator of the ballpark was not completely free from a duty of care to its patrons. The court applied the business visitor rule, holding that the defendants “were not insurers of the safety of spectators; but, being engaged in the business of providing a public entertainment for profit, they were bound to exercise reasonable care, i.e., care commensurate to the circumstances of the situation, to protect their patrons against injury.” This care did not extend to providing entirely protected seating, but only required providing some protected seating for those who desired it.

Hylton explains that the decision in Crane, despite its origins in a fairly obscure court, has been followed in almost all subsequent foul ball injury cases and its principles continue to govern today. The decision seeks to obtain a balance between fan safety and fan entertainment. Because owners do not have a duty to protect all seating with protective netting or to warn spectators of the risks of foul balls, fans choosing to sit in unprotected areas in order to get closer to the action are held to have taken on the risk of any injury related to sitting in such seats. To most fans, the entertainment value has typically outweighed the (relatively small) risk of injury. This recent class action suit, however, seeks to modernize the issues and shift the entertainment-safety balance by expanding the park operator’s duty of care.

Many such cases have come forth and have been dismissed on the basis of the assumption of risk doctrine, and perhaps it is likely this latest one will suffer the same fate. However, the case raises the issue of whether an obscure decision from 1913 should continue to govern spectator injury cases in our modern world. The class action suit’s mention of modern realities – stronger players, faster gameplay, technological distractions – highlights legitimate and important differences between the fan experience now and what it would have been during Crane’s time. With such differences in mind, it may be an appropriate time to reconsider the doctrine of assumption of risk and its application to the modern spectator experience.

Continue reading...

The FIFA World Cup – #SayNoToRacism, #SayYesToConcussion?

June 20, 2014

0 Comments

Last night’s FIFA World Cup football raised two important duty of care issues, concerning whether, and if so when, athletes have the right to continue playing? The first issue, concerning Uruguayan (and Liverpool FC) striker, Luis Suarez was whether he would be fit to play following minor surgery to the meniscus in his knee in late May. While meniscal injuries can have comparatively quick recovery periods, it is important to differentiate between full match fitness and the graduated stages of functional rehabilitation immediately preceding that. Why is this important? Put simply, if a player returns to play too quickly, or for too long, this will increase the risk of subsequent injury. It is interesting to compare the example of Suarez with that of the French winger, Franck Ribery who refused to allow the French medical team to administer cortisone injections immediately prior to the World Cup (http://bit.ly/1oMsFYx ). Indeed, FIFA themselves argued in 2012 that the ‘”abuse’ of painkillers could put the careers and long-term health of footballers in jeopardy” (http://fifa.to/1jBQpqi – although some of the headline conclusions from this study have been criticised: http://bit.ly/1idT5jb) so whose decision is it to allow athletes like Suarez to play? Ultimately, there are four decision-makers:

  • The athlete themselves – they must have an informed consent as to the risks of participation, or sub-optimal rehabilitation on their long-term health. It has however been argued that this consent could not truly be regarded as wholly voluntary, given the employment pressures that they may (or may not) be under
  • The medical team – in all matters concerning the health of the player, ultimately the responsibility of determining the fitness of an athlete to play must be down to the medical staff. While this may be straightforward in the case of family doctors, the sports medical practitioner may be faced with conflicting duties to ensure the welfare of the player, and obligations towards the team (see http://bit.ly/1nnSqZZ and the Bloodgate incident for discussion of the difficulties in enforcing professional ethics in elite sport environments)
  • The Manager – As the designated responsible person in charge of controlling their players, the final decision as to whether an athlete should be allowed to play will be down to the manager.
  • The rule-making body, FIFA will also retain an element of responsibility through their “agent” (referee’s) control of the match – at present, it seems that there are no explicit FIFA rules governing the rehabilitation of players and the use of pain-killers, beyond a reference to the respective WADA policy. This policy [effectively on the medical best practice of supporting Therapeutic Use Exemptions (TUEs) for Musculoskeletal injuries – http://bit.ly/1lFDcB7] allows medical staff a comparatively wide discretion to prescribe glucocorticosteroids and narcotic analgesics depending on individual clinical need.

So why is this a problem? Eight retired American Football players are currently suing the National Football League (NFL) claiming that the “unethical (substitution) of pain medications for proper health care led to addiction and long-term medical complications.” (http://nydn.us/1gOtbSC) The case is currently ongoing and unsurprisingly is being contested by the NFL, however given FIFA’s own admittance of the problem in their 2012 report, another governing body may be vulnerable to a similar class-action case….

Is it a knock-out round or the group stages?

The second related issue concerns the liability for concussive (or sub-concussive) injuries. Plenty has been written on both the risks of traumatic brain injury in sports and the recent 4th International Conference on Concussion in Sport (held in Zurich, November 2012). Indeed, FIFA was an active participant in this process and contributed to the final consensus statement (http://bjsm.bmj.com/content/47/5/250.full.pdf+html). The FIFA website also clearly lists the Pocket Concussion Recognition tool: http://fifa.to/1m1ypKD which helps to diagnose concussions in athletes.

Why therefore did this process go so badly wrong in last night’s match between Uruguay and England. In the 60th minute, Alvaro Pereira looks to be temporarily unconscious and appears groggy when he is escorted off the pitch a few moments later by the Uruguayan medical staff (http://yhoo.it/1w0zdmg) (see also an excellent analysis of the collision at: http://read.bi/1pOaqBt).  The problem is that when the Uruguayan medical staff clearly signal for a substitution, Pereira is adamant that he should return to the pitch and he subsequently plays out the game. This decision to return to play is clearly wrong. It could be defended if Pereira was assessed and did not exhibit any symptoms, but both lying motionless and an athlete’s subsequent unsteadiness on their feet are visible signs of concussion and the protocol states (in bold) that:

“any athlete with a suspected concussion should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically”

Does a cursory pitchside argument with medical staff constitute sufficient assessment? I would argue no. FIFA is supposed to have neutral doctors at every venue to intervene and/or overrule the team doctor, but it appears that no substitution or challenge was made in this case. After the match, ABC News & AP reports that Pereira was checked by team doctors. He is also quoted as saying:

“I said sorry a thousand times to the doctor because I was dizzy. It was that moment your adrenaline flowing in your body, maybe without thinking … what I really wanted to do was to help get the result….What really matters is that everything is OK. Nothing happened. It was just a scare” (http://abcn.ws/1nRUdIm)

Pereira is right to say that nothing happened this time, but sports officials have a duty to protect the athlete from themselves, and if the team cannot, this duty should fall on the referee. The situation echoes the similar ‘Hugo Lloris’ incident in November 2013 (http://bit.ly/1w0ueSx). At the time, Professor Jiri Dvorak (FIFA’s Chief Medical Officer) was quoted as saying:

“The player should have been substituted. The fact the other player needed ice on his knee means it’s obvious the blow was extensive, When he has been knocked unconscious, the player himself may not see the reality. I do not know the details but I know that the Premier League doctors are extremely good and I can imagine that the doctor may have recommended he be replaced. We have a slogan: if there is any doubt, keep the player out.”

Brazil 2014 may have disappearing sprays and goal-line technology, but ultimately these gadgets are sideshows to the main event. Until officials and teams can enforce FIFA’s own medical rules, football seems very vulnerable to a negligence action, given the widely identified and foreseeable risks to health. Sport may have an immunity for ‘playing rules’ but this immunity does not extend to unjustifiable risks, see for example: 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. Indeed, the Pereira incident only gives greater impetus to the cross-party call for a UK Parliamentary Inquiry into concussion in sport (http://bit.ly/1qjXUaI). Published earlier this week, the document calls for five clear steps to be taken:

  1. A full parliamentary enquiry into concussion in sport
  2. A coherent set of concussion protocols covering all sports
  3. Independent peer-reviewed research into concussion and British sport
  4. Better co-ordination between sports, schools, colleges and doctors
  5. A clear message that concussion can kill.

These sorts of enquiries are much needed, but these recommendations are only a starting point. The media and the public have already shown themselves able to recognise concussive events and there was widespread disapproval on twitter of the decision to allow Pereira to continue  (although admittedly it is interesting to see ow much of this disapproval came from international commentators, medical professionals or from followers of other codes of ‘football’). Without some form of enforcement mechanism though – whether through tighter regulations from FIFA, self-enforcement by the teams themselves, or a fear of lawsuits brought by players – this type of incident will continue unchecked at all levels of the game. Until something fundamental changes, sadly we will be making similar comments in another six months….

Continue reading...

A Cruel Race – The Risks of Dog Sledding

November 23, 2013

0 Comments

By Miranda Schmold – Thompson Rivers University 3L JD Student

It is generally accepted that participation in most, if not all sports and activities, involves some aspect of risk and the possibility of injury. From some of the most low-key sports, such as bowling and golf, right up to extreme sports like motocross and hel-skiing and whitewater rafting, all carry with them some degree of risk and danger. Most reasonable athletes, professional, non-professional, recreational and the like, take responsibility for their actions, even when those actions result in their injury or death.

In pursuit of their sport or chosen leisure interest, people voluntarily assume the risks and acknowledge the risks they undertake along with the possibility of harm that may befall them should they participate in said activity or sport. Oftentimes it is the inherent risk and danger that makes many sports and activities alluring and exciting. From soaring through the air on a BMX bike, dangling from a cliff face attached to a single rope, tearing down a ski hill at top speeds, to slamming up against your opponent in a gridiron football game, these are just some of the elements that not only make these sports risky but also tempting and fun. As consenting and reasonable participants we are able to choose what activities and sports we participate in and the risks we are willing to accept in enjoying these pursuits.

But what about when the very sport or adventure activity being engaged in requires the use of non-human athletes? What about sports and activities where it is impossible to get the consent of the non-human participants? This is the case with dog sled racing and dog sled tours. Of course it is possible for the person controlling the dog sled in a dog sled race to acknowledge and accept the risk they undertake when participating in the sport, and it is possible for those engaged in a dog sled tour to accept the risk of participating in this outdoor activity, but there is no way to discern whether or not the dogs accept these risks or even wish to participate in the race or tour.

While the person controlling the dog sled is no doubt at risk for injury or even death, dog sled racing carries with it innumerable risks and dangers, mainly to those without which the sport would not happen, the dogs. The Iditarod is one such notorious dog sled race where the non-human athletes are put in tremendous danger. The Iditarod takes place each year in Alaska starting on the first Saturday in March. These sled dogs are forced to run over 1,600 kilometers in some of the most punishing and arduous terrain. The dogs race from Anchorage to Nome, which would be like running from Vancouver to Saskatoon, and they must do it in 8 to 16 days!

Since 1973 approximately 142 Iditarod sled dogs have died, although this only accounts for reported deaths during the race and does not include dogs that have perished while training. Sled dogs in the Iditarod are at risk of death, paralysis, penile frostbite, bleeding ulcers, bloody diarrhea, lung damage, pneumonia, ruptured discs, viral diseases, broken bones, torn muscles and tendons, vomiting, hypothermia, sprains, fur loss, broken teeth, torn footpads, anemia, strangulation in towlines, internal hemorrhaging, liver injury, heart failure and pneumonia.

About 53% of dogs that start the race do not cross the finish line. Additionally, many handlers are extremely cruel to these integral members of their sled dog team. For example, whipping, kicking, beating and starving dogs have all been witnessed as regular practices in the sled dog racing industry.

This situation is not unique just to the sport of racing sled dogs, but also occurs in the adventure tourism experience of sled dog tours. British Columbia is no stranger to the controversy surrounding sled dog tours. In 2010 the province was rocked by tragedy with the culling of 43 sled dogs by Robert Fawcett, former owner of Howling Dog Tours Whistler Inc. With the collapse of the sled dog industry in Whistler after the 2010 Vancouver Winter Olympics, Fawcett admitted to slaughtering 43 of his sled dogs and burying them in a mass grave on his property in April 2010. After pleading guilty to causing unnecessary suffering, Fawcett faced a maximum sentence of 5 years in jail and up to $75,000 in fines as set out in the Prevention of Cruelty to Animals Act and the Criminal Code s. 447(2).

On November 22, 2012 Judge Merrick of the Provincial Court handed down Fawcett’s sentence as three years probation, 200 hours of community service, a $1,500 fine, a 10-year firearms ban and a 3-year ban on commercial involvement with animals. While this left Vancouver’s SPCA and animal welfare advocates reeling, the positive aspect that came out Fawcett’s trial and sentence was the development of Canada’s first Sled Dog Code of Practice and Standards of Care by the Province, the sled dog industry, veterinarians and the BC SPCA.

Unfortunately, the code of practice may not be holding up to all it was meant to be. In July 2013 yet another Whistler sled dog operation has closed its operations. Whistler Sled Dog Company was created shortly after the Fawcett scandal and even received many of his dogs. They hoped to run an ethical dog sledding company, but after operating for two seasons found they could not sustain their sled dog tours because of Whistler’s short 4-month season. Now the fate of 71 difficult-to-rehome sled dogs hangs in the balance.

The sport of sled dog racing has many inherent risks, mainly for the sled dogs themselves, of which they cannot consent to. It is up to the mushers and handlers of these dogs to keep their health and safety in mind when competing in this sport, however, history tells us that their best interests have not been a priority come race day. Many dogs that have competed in the infamous Iditarod have either perished while racing or suffered extreme or life threating injuries, not to mention the horrific conditions they live in and treatment they receive when not being raced. In contrast, the risks to the human athletes seem inconsequential. The risks involved with sled dog tours are equally as serious, with the main risk being that sled dog operations close after a short winter season, with no choice but to cull or euthanize a large number of challenging-to-rehome sled dogs.

While risk is inherent in most every sport and activity, we should endeavor to weigh the risks with the rewards. In the case of sled dog racing and sled dog tours we need to ask ourselves, is the manner in which we risk man’s best friend worth the reward of a few moments of animal entertainment?

Continue reading...

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

October 25, 2013

0 Comments

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……

Continue reading...

Football Player Sues Canadian University for Brain Injury

September 22, 2013

0 Comments

By Amy Ulveland – Thompson Rivers University 3L JD Student

According to the Merriam-Webster dictionary, a coach is defined as: a person who teaches and trains the members of a sports team and makes decisions about how the team plays during games [emphasis added]. In many ways, the role of a coach is analogous to that of a parent: just as a coach must respond to an individual’s needs while seizing opportunities to develop character, so too must a parent. While both may use fear to motivate individuals to act in a certain way, this must be tempered with a steady diet of support and encouragement. In other words, they both serve as role models (for better or worse), and exert an observable degree of control. In this role, coaches and parents may be viewed as infallible, all-knowing creatures, but they are not. They are human, and in exercising judgment, mistakes will be made. Indeed, there is no one-size-fits-all manual.

In R v Jobidon, the Supreme Court of Canada was tasked with considering whether an individual could directly or impliedly consent to force causing bodily harm. In taking a contextual approach, the Court paid some attention to sporting activities: “… the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.”

The line remains blurry; one can appreciate the difficulty of placing guilt within a sporting context. Players assume a heightened level of risk as part of ‘playing the game.’ With the above in mind, I turn to the recent lawsuit launched by former amateur football player, Kevin Kwasny, against his former coach, and Bishop’s University (see article here).

Kevin was 21-years-old at the time – in his prime – when life as he knew it changed forever. After being hit on the football field and suffering bleeding on the brain, Kevin’s severe brain injury left him and his family with hefty medical bills, and a lifetime of assisted-care. Kevin’s lawsuit essentially argues that his coach and Bishop’s University were negligent in forcing him to go back out to play after showing signs of a concussion from an initial hit on the field.

There are two questions at issue: 1) whether Kevin’s coach was negligent in instructing him to go back out on the field after learning Kevin was feeling dizzy from a hit; and, 2) if so, whether Bishop’s University is vicariously liable for Kevin’s brain injury and damage caused as a result of its member coach’s negligence?

The case will turn on whether or not Kevin’s coach knew or ought to have known that his current state would worsen thereby causing him permanent brain damage, as a result of sending him back out to play. Therein lies the rub: coaches are neither doctors, nor medical specialists. The duty of care is there. The question becomes: what standard of care did Kevin’s coach and university owe him? The court will measure his conduct against that of the ‘reasonable coach’ in similar circumstances. Recognizing coaching styles are as varied as parenting styles, there are certain cues that a ‘reasonable person,’ let alone a ‘reasonable coach,’ ought to recognize and prudently act on.

Showing signs of dizziness after being hit is a telltale sign that an individual is not ready to go back out on the field (where he or she is likely to get hit again).

The court will find some guidance in the CIS Code of Ethics which reads, in part, as follows:

“90.60.2.2 – Responsible leadership is a priority in ensuring the full development of individuals as a whole. Inherent within the implementation of this principle is the notion of competence whereby personnel will maximize benefits and reduce risks to participants by being well prepared and current within the field of sport.”

Issues of causation and proximity will be at the centre of debate, but in my opinion, the court is likely to find that Kevin’s coach was contributorily negligent in pushing him back out on the field after learning of his condition. As the court may be reluctant to place guilt solely on his coach, for public policy reasons cited above, there is a good likelihood it will find Bishop’s University vicariously liable to deter such type of bravado on the field. No individual is expected to be superman – on field or off.

Continue reading...

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

March 27, 2012

0 Comments

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?

Continue reading...