Tag Archives: consent

A Cruel Race – The Risks of Dog Sledding

November 23, 2013

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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?

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Tort Law’s Inapplicability to Extreme Sports: The Death of Canadian Ski Cross Racer Nik Zoricic

November 12, 2013

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By Kelsey Petersen – Thompson Rivers University 2L JD Student

The National Post, in their coverage of the death of Canadian Ski Cross racer Nik Zoricic, quoted head coach, Eric Archer, as saying “the athletes are all searching for the same elusive thing: the edge of possibility.All truly elite athletes are searching for that line – they are trying to push the boundary of what humans can do.” In many extreme sports, pushing the boundaries leads to a form of risk taking that the law of negligence has yet to appreciate.Plaintiffs who are hurt while engaging in high risk activities do not fit within a doctrine that uses reasonableness as its central criterion.

Referred to NASCAR on skis, ski cross features up to six athletes racing side by side over banked corners and jumps 140 feet in length.Ski Cross began, and gained its popularity in the X-Games, and has been modified only slightly to become a World Cup and Olympic event.While the World Cup circuit features only four competitors racing at a time, as compared to six at a time in X-Games competition, the extreme nature of competition has transcended into the alpine racing circuit yet is not subject to the same regulations that traditional alpine disciplines enjoy.

Tim Danson, attorney for the Zoricic family, has called the death of Nik Zoricic the result of “gross negligence of race organizers and officials.”Although the Swiss police report found there to have been no third party causation involved in the crash, Danson is calling for the International Ski Federation (FIS) and Alpine Canada to conduct their own independent investigations to determine whether improper jump trajectory, safety measures and grooming protocols were responsible for Zoricic’s death.

While Smolden v Whitworth held that sport is not a special case with its own discrete jurisprudence, divorced from established general principles, the specific circumstances are of crucial importance in determining the applicability of tort principles.In addition to defining what is reasonable versus unreasonable risk within extreme sports, the court must evaluate the fundamental nature of the sport, and the defendant’s role and relationship to the sport, to determine whether the defendant owes a duty to protect the plaintiff from a particular risk of harm.

Athletes involved in extreme sports are often anything but careful, pushing the boundaries of risk taking to be successful in their sport; yet participating in a dangerous sport does not mean that an athlete consents to negligence which increases the risks posed by the sport itself.The defence of voluntary assumption of risk is yet another area to expose tort law’s inability to apply to extreme sports.“Traditionally, the assumption of risk defence barred a plaintiff’s claim, whether his behaviour was reasonable or unreasonable, on the ground that he voluntarily chose to encounter a known danger.” The assumption of risk doctrine is even more important in extreme sports where, by their nature, they are inherently dangerous.The risk of injury is extremely high without the defendant’s negligence increasing the likelihood of injury.While the voluntary assumption of risk defence continues to apply to dangers inherent in the sport, duty can be imposed if the defendant, through their negligence, increased the inherent risks of the sport. 

R v Jobidon held, in a criminal law context, that one cannot consent to death or grievous bodily harm. Can the principle of negligence follow with the assertion that an athlete cannot consent to death in extreme sports?  The death of Georgian luger Nodar Kumaritashvili prompted the following statement: “No sports mistake is supposed to lead to death.No sports mistake is supposed to be fatal.” While extreme sports adhere to a practice of increased risk, tort law principles must be modified to allow for the increased nature of risk in extreme sports to be preserved while maintaining the athlete’s right to impose liability on those guilty of negligence.

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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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Off Duty

October 16, 2011

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Solicitors Journal (Vol 155 no 38) just published a piece (click here for the full article) Kris and I wrote “Off duty.’ Here are a few excerpts:

—–

The High Court threw a lifeline of common sense to private homeowners in Grimes v Hawkins [2011] EWHC 2004 (QB), reasserting the Court of Appeal’s approach in Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ 646 that adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured.

The 18-year-old claimant in question was an invited guest to a midnight house party hosted by Ms Katie Hawkins at her parents’ home while they were away for the evening. As well as extensive gardens, the house also contained a heated swimming pool housed in a separate building. Midway into the party, amid the general party atmosphere, Ms Grimes dived into the pool, tragically striking the bottom of the pool with her head, rendering her tetraplegic. She subsequently brought a claim against Ms Hawkins’ father alleging a breach of duty in both common law negligence and under section 2(1) of the Occupiers Liability Act 1957 for allowing her to dive into the pool.

…..

As Mrs Justice Thirlwall DBE acknowledged in her ruling, the difficulty claimants in this area have is that diving into shallow or unknown water is a pursuit which is inherently and obviously dangerous if performed incorrectly (Evans v Kosmar [2007] EWCA Civ 1003). In this instance, the pool was well-maintained, with no hidden dangers and experts acknowledged that it was possible to dive safely within it. Indeed, the claimant herself was an accomplished swimmer with a number of qualifications and, on the night in question, she had surveyed the pool by swimming for approximately 30 minutes. The fact that she consciously dived diagonally towards the deep end only served to emphasise the superfluous nature of any warnings or depth markings, had they been present on the pool house walls.

It is not enough though to argue that we should ensure the primacy of free will for consenting autonomous adults to challenge their own limits. See for instance Tomlinson v Congleton Borough Council [2002] UKHL 47 where Lord Hoffman said: “If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.” The corollary must also follow that participants will not be protected from the consequences of their own actions, no matter how tragic these outcomes might be. As such, Mr Hawkins did not owe a duty to put the pool out of bounds or to prevent the claimant from diving in.

…..

While the outcome for Ms Grimes is tragic, the case reaffirms the protection given to defendants and landowners who might currently be drowning in a sea of negligence or occupiers’ liability claims. Some might call it common sense, others an open and obvious risk, but in the delicate balance between allowing individual autonomy and paternalistically protecting claimants from themselves, liability will generally fall on the party that assumed the responsibility for the activity. Sometimes, though, allowing such freedoms has its own cost.

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Taking NIMBYSM to new heights

September 14, 2011

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A recent article in Spiegel Online International takes NIMBYSM (Not in my Back-Yard, Span or Mountain!) literally to new heights.

Lukas Eberle describes how villagers in the Swiss village of Lauterbrunnen are being deluged with BASE jumpers (an extreme variation of parachuting where jumps take place from Buildings, Antennas, Spans and Earth). Apparently, there were around 15,000 BASE jumps in Lauterbrunnen last year, a figure which sits in stark contrast to a number of jurisdictions around the world that ban or heavily license the sport.

For me, the article  raises two main issues: what degree of autonomy / paternalism is appropriate? and what is the cost of failed jumps (both in human and financial terms)?

 

AUTONOMY / PATERNALISM

When Lord Hoffman made his now seminal judgment in Tomlinson v. Congleton Borough Council [2002] EWCA Civ 309 that:

 “I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may be think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.” [45]

A view echoed later in the case by Lord Hobhouse of Woodborough:

“In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.” [81]

I am not sure that either judge had in mind the issue of BASE jumpers lobbing themselves off mountains, but that is now the situation facing the authorities in Lauterbrunnen. What is interesting about Lauterbrunnen is the shift from what would seem to be an initial openness and complete autonomy for anyone to jump to a much more structured self-regulation and licensing scheme imposed from within the sport.

The winds of change may however be blowing through the valleys once again if recent articles, websites and BASE discussion forums are to be believed. Indeed, it would now seem that public perception of the acceptability of the sport has changed following repeated injuries and fatalities (three deaths in particular occurred within three weeks of each other, earlier this summer, http://www.321base.eu/). Whether the sport will be able to resist the clamouring for tighter restrictions on the activity will therefore depend on whether the diverse multinational groups of jumpers can be regulated.

As the judgments in Tomlinson showed, there are no right or wrong answers rather a balancing of competing rights. In jurisdictions such as the US and UK, the sport is restricted by criminal trespass laws except for time-limited opportunities to jump from certain objects at particular occasions within the year, in a quasi-controlled and somewhat paternalistic manner; In this context, the libertarian approach taken by Switzerland seems to have led to the country becoming almost a victim of its own success. As access to sites has become easier, propelled by a burgeoning adventure tourism industry, so the sporting purists have been diluted by a wider variety of opportunistic jumpers.

And therein lies the problem, regulating such an extreme activity will always be inherently difficult given that the sport was created to push beyond traditional boundaries and restrictions. With such an underground, anti-establishment history, it is perhaps worth asking the question whether BASE jumping can ever be successfully self-regulated or policed?

To a certain extent, parallels do exist with society’s acceptance with off-piste snowboarding and other extreme activities. Indeed, it is even possible to get BASE jumping lessons! As strange as it sounds, there are BASE jumping schools, some websites even offer tandem BASE jumps so you can vicariously get that extreme adrenaline rush without all that bothersome training and experience (apparently these are becoming popular with stag parties!). I don’t know what is more worrying, the mainstream acceptance of BASE jumping or the thought of how the sport can get even more extreme once it ceases to be cool.

 

THE COST OF FAILED JUMPS

One other thing the article does do particularly well is to poignantly bring home that a fatal jump has consequences not just for the jumper, but also for potentially any innocent members of the public who might have witnessed the accident. It is one thing to extol the virtues of living life to the extreme in a desolate wilderness, or by pitting yourself against the elements, it is something entirely different to traumatise innocent villagers and children with the stark realities of uncontrolled gravity.

Some might say that we should celebrate that a jumper may have died doing something they loved, I worry though that in doing so we blur that line between applauding extremes of human performance and encouraging reckless acts in pursuit of that blaze of glory. BASE Jumping is not an entry-level sport, rather it should remain the prerogative of the experienced athlete, the jumper who respects nature, their own limitations, and the rights of those they share the environment with. The sport should be something more than simply jumping off a summit, it should also involve knowing when not to jump.

I do fear though from the future of the sport in Switzerland when local farmers are quoted as saying:

“The authorities don’t want to ban the jumping because even a dead BASE jumper brings money in,” the farmer says angrily. Many in the area would earn some cash in such a case, “the doctor, mountain rescue” and also the hotel and restaurant industry — “when the relatives travel here,”

Let’s just hope the jumpers become more respectful or the Swiss authorities turn out not to be as a as cynical as Farmer Feuz suspects….

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Police investigate lacrosse head stomping incident

June 30, 2011

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I live in the same city in which the court two years ago acquitted of assault a high-school player whose punch broke an opponent rugby player’s nose and cheekbone and has just had another violent incident in which during a lacrosse game it is alleged a 15 year old boy was head stomped by an opponent (click here for the article in The Vancouver Sun).

But first, in R v. TNB (BCPC 0117), Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was exonerated on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

Now the Royal Canadian Mounted Police (RCMP) are investigating the incident in which Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The league has suspended the offending player. RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?”

With respect to J. Frame’s judgment in R v. TNB, if the head stomping allegations are proven true, it is hoped that the court will not take such an accommodating view of the role of violence in sport and the extent to which participants consent to injurious force which are prohibited by the rules but are incredulously permitted within the culture of the game.

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Rule changes to head shots in hockey and a new spin on concussions

May 30, 2011

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Perhaps the elation and euphoria of the Vancouver Canucks (in my adopted province of British Columbia) playing for the Stanley Cup and the rumour that the Atlanta Thrashers of the NHL will soon be sold and moved to my home city of Winnipeg after losing the Jets for Phoenix in 1996 has adversely affected my attention span and productivity for posting missives to the Canary.

But I digress …

Hockey Canada’s call for zero tolerance on head shots has been answered. The national governing body for hockey in Canada unanimously approved rule changes two days ago at its annual general meeting that will make any contact with a player’s head illegal (read story here). The amendments include:

  • A two-minute penalty in minor and female hockey for any player “who accidently contacts an opponent in the head, face or neck with their stick or any part of the player’s body or equipment.” A double minor will be assessed for contacting a player in the head intentionally.
  • In junior and senior hockey, a minor and a misconduct, or a major and a game misconduct, “at the discretion of the referee based on the degree of violence of impact, will be assessed to any player who checks an opponent to the head area in any manner. A major and a game misconduct penalty shall be assessed any player who injures an opponent under this rule.”
  • A match penalty will be “assessed to any player who deliberately attempts to injure or deliberately injures an opponent.”
  • The rule changes for junior and senior hockey will be held a year while the Junior Pilot Project gathers more data on blows to the head and dangerous hits.

It’s about time.

However, a recent article on the number of hockey players playing hurt perhaps puts a new spin on concussions. The New York Times (read article here) reported on the number of San Jose Sharks playing with injuries and the list is impressive, inspiring and depressing. They include Joe Thornton, the team’s captain and best player, who played with a badly separated shoulder in the last game; Dan Boyle, their top defenseman, played since mid-March with a sprained medial collateral ligament in his knee; Ryane Clowe had his shoulder separated earlier in the playoffs and missed only one game despite being unable to tie his skates; Dany Heatley played with a hand which had been broken during the season; Logan Couture played with a broken nose; and the list goes on.

Given the extent to which athletes (presumably) consent to play through pain and injury, it may put into perspective the current conversation on concussions in professional hockey.

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Hockey violence is getting out of control

March 8, 2011

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You know hockey violence is getting out of control when noted commentator and former National Hockey League pugilist Mike Milbury – who once infamously warned against the ‘pansification’ of hockey – says a player should be banned from the league.

Milbury is calling for New York Islander Trevor Gillis to be kicked out of the NHL. Gillis served a nine game suspension for charging and concussing Pittsburgh Penguins forward Eric Tangradi with a high elbow to the head before landing several punches in a one-sided fight. Four shifts into his first game back from the suspension, Gillis head-hunted Minnesota Wild player Cal Clutterbuck with a hit from behind. NHL disciplinarian Colin Campbell described Gillies’s hit as a deliberate attempt to injure by delivering a blow to the head of an unsuspecting player who was unable to defend himself. Then he gave Gillis a feeble 10 game suspension.

On a related note, the Edmonton Journal just published an article I wrote entitled, ‘Violence on the ice is getting out of control’ about a Canadian university hockey player being attacked by a ‘repeat offender’ who had already been suspended in two different leagues for injuring opposing players. Here are a few excerpts:

… …

Hockey got yet another black eye last week when University of Alberta Golden Bears hockey player Eric Hunter was attacked by University of British Columbia Thunderbird Mike Liambas …. In an incident eerily similar to Vancouver Canuck Todd Bertuzzi’s assault on Steve Moore of the Colorado Avalanche, Hunter suffered facial cuts and a concussion after being punched in the head from the side and behind and then driven into the ice by Liambas.

… …

Hockey is a violent game but the violence is getting out of control. Too many players are getting hurt. Players – including Bertuzzi have been convicted of assault. Civil lawsuits – including Steve Moore’s ongoing $38-million suit against Bertuzzi and the Canucks – are no longer out of the ordinary.

It is time gratuitous violence in hockey was no longer considered normal and that teams did more to self-regulate and leagues did more than impose slap-on-the-wrist penalties.

Hunter is a young man studying business at the U of A who accepted the risks ordinarily inherent to playing hockey, such as being tripped, cross-checked and fighting. He would not, however, have consented to enduring a blindside hit and being driven into the ice.

Canadian university hockey should not suffer if the league doesn’t have the moral courage to do the right thing. Universities should send a message that thuggery will never be tolerated by kicking players off their teams if and when it occurs …  Liambas should be prohibited from playing in the league.

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US zip-line lawsuit

February 7, 2011

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A lawsuit was recently filed in United States District Court (District of Utah – Central Division) by the estate of a man who died whilst zip-lining. The complaint alleges that on 11 August 2008 at the Rockin’ R Ranch in Piute County Utah, Daniel A. Hoagland, MD dutifully followed the instructions given him, climbed the zip-line tower, held on to the strap which connected the stick to the zip-line, sat on the stick and left the tower. The strap immediately snapped causing Dr. Hoagland to fall resulting in his death. The complaint describes the strap as narrow, weathered and worn-out.

The lawsuit is seeking general damages, special damages including loss of financial support and lost wages, punitive and exemplary damages, plus other costs.

The lawsuit alleges negligence or, in the alternative, gross negligence which the complaint describes as conduct which is willful, intentional or reckless causing Dr. Hoagland’s death. The complaint lists 15 separate alleged breaches of duty. The two most salient allegations relate to failure to maintain a safe zip-line and failure to secure participants to the zip-line via a harness and lanyard.

The defense will likely rely upon the doctrine of inherent risk and that the plaintiff signed a waiver and release of liability. US courts have dismissed similar claims under the doctrine of primary assumption of risk such that – for example – if falling is an inherent risk of climbing and if the plaintiff fell whilst climbing then the eventuation of that risk is something to which the plaintiff accepted.

That Dr. Hoagland was not wearing a harness – while distressing – is not necessarily material to the case. It is probable that he was informed of this hazard and that, as a man of science, he understood the law of gravity and the risks herein.

Zip line using stick and no harness - photo is NOT from Rockin' R Ranch

Where it becomes potentially troublesome for the defendant is in the state of the equipment. Contrary to the claim, the defendant is under no duty to operate a ‘safe’ zip-line. Under the circumstances, it is unreasonable to assign a duty to make a contraption such as this infallible. Risks can be minimized or mitigated but never eliminated. To remove the risk of falling from a height whilst zip-lining or climbing, the only plausible option would be to not get off the ground. At issue then is what are reasonable risk management practices in the circumstances of operating a commercial zip-line operation.

Recall that the strap broke immediately after Dr. Hoagland weighted it. This might suggest that it was of insufficient integrity or quality to hold his weight. He would have consented to the ordinary risks inherent to zip-lining but have not consented to zip-line on defective or deficient materials or engineering.

It is possible, however, if the waiver was properly prepared and presented that it could bar recovery for a mechanical failure which was not reasonably foreseeable or detectable. Hypothetically, if the strap followed manufacturer’s specifications relating to its use, had not exceeded the manufacturer’s recommended shelf-life, and the alleged materials defect was not detected by the defendants in routine inspection, then its structural failure could not have been reasonably foreseeable.

It is unlikely that a waiver would cover a strap in the condition alleged by the complainant. If it can be shown that the strap was defective or deficient and that it was plain to see to anyone who directed their attention to it then it becomes a different story altogether. This is the second prong to the claim. Gross negligence would not be covered by the waiver.

The crux of this case will therefore be what is a reasonable zip-line and what are reasonable equipment inspection and maintenance practices.

Stay tuned.

Read the statement of claim here – Zip-line Statement of Claim – Hoagland v Rockin’ R Ranch.

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