Tag Archives: inherent risk

Suffering Sports Spectators: The Canadian view on liability for injuries to spectators at sporting events

October 10, 2014

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By Danika Heighes – Thompson Rivers University 3L JD Student

Sports, especially contact sports such as hockey, have an inherent risk of injury. When players take to the ice they assume liability for their possible injury within the regular course and scope of the game. The logic behind the assumption of risk doctrine is quite sound: a player provides consent for the activity in question after being fully aware of the risks involved in that activity. But what happens, when the injured party is not a player, but a spectator?

Recently spectator injuries at Chicago Blackhawks games have resulted in two lawsuits. On June 12, 2013 during Game 1 of the Stanley Cup Finals, Patricia Higgins was struck in the face by a puck. Higgins was seated behind the safety net in section 115, in the southwest corner of the stadium, when an errant puck had flown up and under the protective netting to strike her in the face. As a result of the incident, Higgins suffered a bone-deep gash that required 20 stitches, a bruised retina, a concussion, and required reconstructive surgery. In July, she filed a lawsuit against the United Center for $50, 000, plus legal costs, claiming the safety netting wasn’t “functional” to protect her from the puck.

In September 2014, a second spectator lawsuit was filed regarding the Chicago Blackhawks. Gerald Green was seated in the northwest corner of the rink in the second row as the Chicago Blackhawks hosted the Minnesota Wild on May 2, 2014 in a playoff game. Although Green was seated in an area behind protective glass and the spectator netting, he was struck in the side of the head by a puck that flew over the protective glass at a high rate of speed. According to the lawsuit, Green sustained a “severe neurological injury”, has trouble formulating words, can no longer do mathematical equations and can no longer work to support his family of four. Green’s lawsuit against the NHL and the United Center claims negligence, seeks at least $200,000 in damages and expects the team to extend its safety netting further around the rink. In addition, Green claims he was not warned of the serious risk associated with being hit with a hockey puck.

Which brings us back to the question: who is liable for a spectator’s injury at a sporting event? Specifically in Canada, spectators at a sporting event are assumed to have accepted the ordinary, reasonable, and foreseeable risks associated with attendance. Nonetheless, in general, when a spectator is injured an action will be brought against the occupier of the facility where the sporting event was held and potentially against the individual participant, team, or league. The principle behind this is that the occupier has a duty to ensure that the premise is reasonably safe. However, as the great cricket case of Bolton v Stone illustrates, there is a difference between guarding against foreseeable risk and an absolute guarantee of a completely risk-free environment. Thus, when the courts determine whether an occupier has discharged its duty of care, they consider the nature of the sporting event, any inherent risks, whether the spectator can foresee those risks, and the industry standard for safety precautions. The United States, however, has a very different set of rules governing spectator injuries.

The current NHL industry standards regarding spectator safety has been in place since the 2002 death of a 13-year-old girl. Currently every arena has safety netting which is roughly 120 feet wide and 30 feet high. This netting is consistent with European hockey leagues, and minor leagues. In addition, every hockey ticket sold in the NHL has a waiver of liability written on them asserting that the spectator assumes any risks inherent to the sporting event, including “flying pucks”. The lawsuits both allege that the current netting does not protect spectators. However, both Higgins and Green were seated in the lower bowl, where the risk of a flying puck is greater than other sections. In fact, the appeal of the corner sections is that the line of sight is not encumbered by the netting.

Frankly, the current standards guard against reasonably foreseeable risk, even if they do not absolutely guarantee a completely risk-free environment. How can any spectator at a hockey game state that they were not warned of the serious risk associated with being hit with a hockey puck? At some point, a spectator must take liability for their own safety at a hockey game where it is reasonably foreseeable that a puck will leave the ice during the course of a game.

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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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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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Risk, free markets and free will

October 17, 2011

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It is interesting to note that in the last couple of days, National Football League Pittsburgh Steelers 2010 NFL Defensive Player of the Year and All-Pro safety Troy Polamalu sustained a concussion in a game with the Jacksonville Jaguars, Jay Beagle of the National Hockey League Washington Capitals was knocked out cold (colloquialism for being rendered unconscious) from a punch at the fists of Arron Asham of the Pittsburgh Penguins, a 27 year old man died 300 m from the finish line at the Scotiabank Toronto Waterfront Marathon, and 2005 IndyCar champion Dan Wheldon died in a crash at the Las Vegas Motor Speedway.

The point here isn’t to chronicle the injuries and deaths in sport but to rhetorically ask – in connecting the dots between these sports which each possess varying degrees of inherent risk and its athletes who consent to those risks ordinarily inherent in the sport – despite the different outcomes from brain injuries to fatalities, is acknowledgement and assumption of those risks enough or should more be done?

Or are these athletes participating on their own free will, motivated by vanity and insecurity (apologies to Simple Minds), and benefiting from what the market will bear? Or are they being exploited by commercial forces that regard them as collateral damage in their pursuit of the bottom line?

Just asking.

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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:

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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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Risk and Responsibility

October 14, 2011

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Gripped climbing magazine just published an article (http://gripped.com/2011/10/sections/articles/risk-and-responsibility/) I wrote entitled, “Risk and Responsibility.” It is reproduced below:

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I’m troubled by the idea that the climbing community is slowly, albeit inexorably, creeping towards emasculating risk from climbing. There’s a connection – I think – with the attitude of entitlement that many of our youth today possess. At school, it manifests itself in the way they believe they should receive grades they perhaps don’t deserve. On the rock, this is evident in how some climbers think they should have free access to every cliff or that challenging climbs should not be dangerous.

For example, it’s become increasingly normal for climbers to be guided up long routes like Mt. Everest. There is nothing wrong with being guided (I work in a university program that trains guides), but the attitude of deferring decisions to a guide has increasingly extended to blaming others when things go sideways. Modern climbers get sandbagged on old school 5.9s and complain about the grades or add bolts to existing lines because they think the routes are too scary and someone could get hurt.

It’s more than the style-versus-safety debate. The current mindset almost disavows risk. And when someone does get injured, instead of looking inwards and understanding how it could have happened, we look to the courts for restitution.

Climbing has fallen on hard times:

  • A bolt breaks in Australia resulting in the death of a climber and a lawsuit is pending.
  • A commercially-guided expedition doesn’t summit and the operator is sued for breach of contract.
  • A climber is injured during a fall and sues the climbing gym.
  • A guide is sued after the alpine ice he’s leading dinner plates causing him to fall and pull out the belay anchor resulting in the death of his client.
  • Belayers and the manufacturers of the belay devices are sued for not catching a fall.
  • A climber dies during a descent in the Tetons and the National Park Service is sued for a failed search and rescue response.

The list goes on.

The courts have ironically become the last line of defence in bringing personal responsibility back to climbing. In the majority of the cases cited above, the lawsuits were unsuccessful but that doesn’t change the fact that those climbers believed there were entitled to compensation when shit happened.

It seems we’re forgetting that injury and death are the natural consequences of playing in the uncontrollable environment of the vertical arena. We climb superficially aware that we can get hurt but act surprised when someone actually is injured. The fact is there is a statistical likelihood that you will get hurt while climbing. While risks can be managed and minimized, they cannot be eliminated.

There’s been an almost a subconscious extending of the safety net, security and predictability found in climbing gyms to the mountains and crags. This is a dangerous drift. It’s like pounding the square peg of adventure and the mountains into the round hole of automatic belay devices and climbing gyms. It just doesn’t fit nor does it make sense.

The climbing instruction Bible is aptly entitled Freedom of the Hills. Implicit in its title is that climbers have the right to take risks, which may unfortunately include decisions that result in their deaths. Climbers accept – or should accept – that climbing is inherently dangerous and that they can get hurt in any number of ways: falling, falling rock, bad rock, bad pro placement, bad bolt placement, etc.

Depending on the route or the circumstances (indoors or out, rock or ice, sport or trad, etc.) climbing may not be as harmful as playing Russian roulette but it is inherently dangerous. For example, the chief attraction to sport climbing is arguably the strength, skill and artistry required to ascend a route. Exposure to risk is secondary to the aesthetic and physical challenge of climbing. The biggest fear on a sport route isn’t getting hurt but fear of failure and not ticking the line. But you can still get hurt clipping bolts. This is very different when compared to what an alpinist is exposed to on a north face where the potential for rock or ice fall and shitty rock always exists and failure takes on an entirely different – and potentially lethal – meaning.

If you want to stay safe, you should not venture outdoors. Stay inside, removed from all risk, and watch your soul get eaten away by tedium. You may not get physically hurt but you will also not experience the independence, self-reliance, beauty, and wisdom that climbing can offer.

Risk is integral to climbing. Some forms of climbing are, of course, more hazardous to your health and each type has its own rewards and tolerances for risk. We should not, however, confuse what is appropriate for gym climbing in terms of risk and safety, with what is acceptable for other forms of climbing. ‘Cuz it clearly isn’t but, as the above cases indicate, some people sure appear to be thinking along those lines.

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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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Search and Rescue Volunteer Dies in BC

June 30, 2011

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A search and rescue volunteer with Nelson Search and Rescue drowned in the Goat River near Creston, British Columbia yesterday while helping undertake a search of a submerged vehicle. The young woman fell overboard from a watercraft and did not surface. Efforts to locate and rescue her were unsuccessful (click here for the article in The Vancouver Sun).

Search and rescue is inherently dangerous. Approximately 6 volunteer (unpaid professional) search and rescuers have tragically died in training or missions in BC in the last 20 years; this averages to 0.3 fatalities per year.

No data is readily available for comparable statistics to BC firefighters but according to the US Fire Administration and the US Federal Emergency Management Agency, 1091 American firefighters died while on-duty between 2000-2009. This averages to 109 deaths per year.

They are true heroes that deserve our gratitude. Their professionalism, technical expertise and tolerance for risk are unparalleled. Our thoughts and prayers go to her family and friends and to the Nelson Search and Rescue Group.

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