By Callan MacKinlay – Thompson Rivers University 2L JD Student
Tailgate Parties are becoming more and more common at sporting events, especially with regards to American football in the United States. Some of the teams regard this behaviour as free advertising and do not prohibit the parties from continuing all night long on their property. While this issue is not nearly as common in Canada, it does occur often in certain jurisdictions. The Calgary Stampeders (a professional football in Canada) are a team that has a tailgate party at almost every game. In the past, the team has had issues with the parties and has since stepped up efforts to ensure that the parties are carried out in a safe manner in accordance with the law. The question that needs to be asked here is: do these efforts constitute the assumption of a duty with regards to tort law?
Negligence law is the most obvious area where a duty may arise. According to reports, the Calgary Stampeders have a surveillance system that they use to monitor the state of the tailgate parties. Specifically, they watch for overtly drunk individuals or rowdy behaviour that might escalate into violence or a danger to the other party-goers. If they notice this sort of behaviour, they either notify security or they inform the police. The Stampeders have also set up regulations that essentially create a reasonableness standard for the fans, stating that tailgating is allowed, so long as the “fans use discretion and common sense.”
With these regulations and the surveillance in mind, have the Stampeders created a duty where there was none before? That is, knowing that there is a danger that the fans might become rowdy or overly drunk, doesn’t regulating and surveilling the behaviour create a duty under negligence law? I would say that it does.
In Mercer v SE & C Railway Company, the defendants had created a duty by locking a gate to block pedestrians from crossing the rail when a train was passing. When they failed to lock it in one instance and someone was injured, they were held to have created a duty because the community relied on their previous behaviour.
In the modern instance of tailgating, what if someone manages to slip under the radar of the surveilling authority at McMahon stadium and leaves the tailgate party inebriated and crashes their car into someone, injuring them? What would stop that person from including the Stampeders in a negligence lawsuit? It is likely that the Stampeders would rely on their regulations as set out in their tailgating page on their website as evidence that they assume no liability, but their actions speak much more loudly than their words. What is the difference between someone relying on their surveillance as proof of the safety of the conduct and someone relying on the gate being unlocked meaning that no train was coming? It would make for an interesting case.
In short, while tailgate parties might be a way to increase word of mouth and fan fervour for your team, it creates additional legal problems that have to be mitigated either by strict surveillance and regulation or by outright prohibition. What each team does in the future will lead to different risks inherent with taking on any new duty.
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)  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:
A full parliamentary enquiry into concussion in sport
A coherent set of concussion protocols covering all sports
Independent peer-reviewed research into concussion and British sport
Better co-ordination between sports, schools, colleges and doctors
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….
Although Tottenham’s website thankfully confirms that Hugo Lloris has been given the all-clear following a precautionary CT scan, if the outcome had been more tragic, Tottenham, the FA and the Premier League could all have been sued in negligence law, and most likely would have lost.
This article will review what liability exists, why, and what steps need to urgently be taken in order to manage this risk.
Tottenham Hotspur played Everton in a Barclays Premier League match on the weekend. Near the end of the game (77th minute according to BBC live text website), the French international goalkeeper, Hugo Lloris suffered a head injury and brief unconsciousness following a collision with Romelu Lukaku’s knee in a challenge.
After a brief delay for treatment, Lloris was not substituted and played out the remaining 15mins of the match.
SO WHAT NEGLIGENCE LIABILITY EXISTED?
While the challenge between Lukaku and Lloris was not negligent, the actions by the team and authorities afterwards could create a liability along similar lines to the English boxing case of Watson v. British Boxing Board of Control (BBBC)  EWCA Civ 2116. In that case, the governing body of boxing (the BBBC) were found liable for failing to implement what were known medical protocols to mitigate the risks of brain damage.
What is interesting is that despite the time-gap and the obvious differences between the two sports, there is a striking similarity between the two incidents:
No player liability for the initial blow
No referee liability
Referee stopped fight correctly
Referee stopped game correctly
Rules of the game were followed
BBBC rules on medical treatment followed
At face value, FA [p.596] & Premier League [O.9] rules on medical treatment of head injuries followed as qualified medical personnel consulted
Medical professionals from outside the industry recommended more stringent rules
Neurosurgeons attacked the BBBC rules pre-watson incident
Stringent rules on concussion management recommended following NFL concussion suit, and other incidents particularly in Ice Hockey and Rugby
If we adopt the same Watson-esque reasoning for Lloris, a number of parties could therefore potentially be liable in negligence for breaching their duty of care towards the goalkeeper:
The Medical Professionals from the Club, and/or the Manager
Tottenham have based their media defence on the fact that they followed the FA rule on Head Injuries :
“All Clubs shall ensure that any player in a league match having left the field with a head injury shall not be allowed to resume playing or training without the clearance of a qualified medical practitioner.”
Because a qualified medical practitioner from the club assessed Lloris pitch-side, Tottenham argued that they were fully compliant with the relevant rules; and at first glance, this view seems correct. The situation however changes with a closer, more detailed examination of the FA rules on medical treatment. The next page of the FA rules states that:
“Any player remaining immobile and unresponsive to verbal commands following a head injury will be regarded as being unconscious and treated in accordance with established principles for extrication and management of the unconscious player. There will be no return to play during that day……”
and further on that:
“A player may suffer a transient alteration of conscious level following a head injury. It should be noted that under these circumstances, “transient” may coincide with the period of time between the injury and the arrival of the medical attendant at the player’s side. On-pitch assessment will include Maddocks questions as well as demonstration of conjugate gaze, “normal” visual acuity and full visual fields to confrontation. The player will only be allowed to resume play if asymptomatic and with normal co-ordination…..If a deficit is observed the player must be immediately removed from the field of play and regarded as suffering from a concussive head injury. There will be no return to play that day.”
The 4th Consensus statement on concussion in sport (supported and endorsed by FIFA) similarly says,
“If any one or more of these [five] components are present [which includes loss of consciousness], a concussion should be suspected and the appropriate management strategy instituted.”
Given that it was widely reported in the media that Andre Villas-Boas (AVB) [the Tottenham Manager] admitted that:
“He [Lloris] doesn’t remember it so he lost consciousness. It was a big knock but he looked composed and ready to continue.”
This would seem to suggest that with either interpretation, by continuing to play Lloris, Tottenham was in violation of the FA rules. Either Lloris was briefly fully unconscious, in which case there should be no return to play, or he had an observable deficit (dizziness, memory loss etc) in which case he should not have returned to play.
The only justification for allowing Lloris continuing to play would be that the injury was transient. This is however a difficult medical decision that should be made solely by medical professionals, ideally in a quiet, non-pressurised environment. In a post-match interview with Sky however, Villas-Boas suggests (at 2m30 in) that:
“The medical department was giving me signs that the player couldn’t carry on, because he couldn’t remember where he was….but he was quite focused and determined to continue, so when you see this kind of assertiveness it means he is able to carry on, and that is why it was my call to delay the substitution.”
Based on the mechanism of injury and his unconsciousness on the pitch, the evidence strongly suggests that Lloris sustained some type of concussion. Indeed his post-match rehabilitation would support this conclusion as it looks to be proceeding along the lines of a concussive injury (CT scan, medical assessment, rest). Given this, the Tottenham decision to allow Lloris to keep playing would seem contrary to the FA rules on Head Injuries and raises serious question marks over the influence of the medical staff in this decision-making process. Were they overruled by AVB? Or did the medical staff make this decision free from any managerial interference?
If the recommended solution was simple [removal of the player], would have comparatively little effect on the game [a substitute keeper was available and ready] and the risks of failing to do this were significant [death, or serious injury from second impact syndrome / Chronic Traumatic Encephalopathy (CTE)], then arguably if an injury had result, it would have been negligent not to have taken these steps.
The FA / Premier League Rules.
Even if we take the alternative superficial view of this incident (that Tottenham acted within and implemented the relevant FA / Premier League rules on Head Injuries), this is not sufficient to excuse their duty of care to the player. It could however be used as persuasive evidence that the Club had acted reasonably by taking appropriate advice and relying on the FA scientific experts to lay down appropriate medical rules (outside the competence of the club). Liability would then pass to the governing body / league for negligent rule-making.
Indeed, just as the Court of Appeal held in Watson that:
“The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system.” 
So this finding is equally instructive to this incident. It would be surprising if anybody in professional sport was not aware of the risks associated with concussion following protracted litigation in North America from both the NFL American Football players association, and NHL ice-hockey players, not to mention recent rugby incidents – most notably George Smith’s infamous return to the field following a heavy collision.
Could or should the FA have done more? Arguably yes. As regulators of the game, there needs to be a clearer stance taken as to how the rules should be applied, and whether in the first instance, they are actually strict enough. While there have recently been some clubs that display admirable restraint, for example Norwich’s substitution and treatment of Robert Snodgrass following a heavy collision with a defender, there have equally been occasions this season where concussed players have continued to play – indeed ironically, Lukaku himself was briefly knocked out during the Everton-West Ham game on September 21st. If the FA and Premier League are aware that players are not being substituted, then their continued tolerance of this practice must surely constitute tacit acceptance?
As Watson shows though, even full adherence to the FA rules may not act as a defence to a negligence claim if other sports or medical professionals implemented more stringent standards.
For example, any ice-hockey player suspected of concussion in the NHL is removed from the bench to a quiet place so that a full Sports Concussion Assessment Tool (SCAT2) test can be administered.
Similarly, the NFL test for American footballers based on the SCAT test typically takes 8-12minutes to complete.
Perhaps most tellingly though, Dr Barry O’Driscoll (formerly the IRB medical advisor) recently stated that “it’s ferocious out there…there is no test that you can do in five minutes that will show that a player is not concussed….to have this acceptable in rugby, what kind of message are we sending out?”
What is considered reasonable should therefore be judged in the context of safe practice recommended by the medical experts in the field, for example, adopting the 4th Consensus statement on concussion in sport, supported and endorsed by FIFA (amongst other signatories), or reviewing literature and protocols from North America where awareness of concussive injuries seems to be much better understood. It is not sufficient for The FA to argue that their rules on head injuries are the strictest that they have ever been, or that with FIFA F-MARC accreditation the medical facilities at St. George’s Park are world class, instead what is needed is a world-class implementation of safe, effective rule-making and sadly this weekend’s incident exposes the deficiencies in the current system.
This article would suggest four actions need to be taken urgently:
The FA or League to impose disciplinary sanctions for clubs acting against the safety of a player – If no sanction exists for ignoring or misapplying the FA rules on Head injuries (or any other medical condition affecting the safety of participants), then medical staff and managers are not incentivised, beyond their own professional values, to make ‘correct’ or ‘safe’ decisions. What is instead needed is for the FA to implement fines or other disciplinary measures for a failure to follow agreed medical protocols. The FA (and clubs) have a duty of care to protect the safety of the players, and much as hard-helmets and ear-protection are mandatory and punishable by health & safety violations in the construction industry, so the FA need to implement a system of enforcement for the (mis)application of their rules.
The FA or League to implement ‘medical suspensions’ akin to yellow and red cards. Just as players might receive suspensions following red cards, so automatic minimum medical suspensions could be triggered followed head injuries. If players, coaches and officials were not just educated about the risks of concussion and return-to-play protocols, but had to abide by minimum suspensions (for example, 5 days), then this would help to reinforce the potential seriousness of the injury. Clubs would of course be free to extend this recuperation as needed, but a minimum mandatory rest-period could also help change public perception that athletes were not being brave by continuing to play and wimps for being substituted, but rather that this decision was taken out of their hands by the governing body. A system of governing body / league ‘medical suspensions’ would also assist with epidemiology as it would make it easier to track repeated concussive injuries or identify particular high-risk athletes.
The FA to review concussion best practice in other sports. Following the clear principle laid down by the Court of Appeal in Watson, the FA as the industry regulator has a duty of care to provide best medical practice, and continuously review these protocols in light of other sports or medical guidelines, with a view to making alterations to the current rules if necessary. [At the time of writing, this recommendation seems to already be in progress]
Consider whether independent medical teams should have ultimate decision-making authority over clubs.Finally, to avoid any appearance of undue influence, conflict of interest or pressure being exerted on club medical staff (as was observable with Dr Wendy Chapman, the club doctor at the centre of the ‘Blood-gate’ scandal in rugby), it may be advisable for the FA to leave the decision over whether a player sustained a concussive injury, or other medical condition affecting the safety of a player, to an independent doctor available on the side-line. Of the four recommendations, this last point is however more controversial and would add an additional expense to games, particularly since the other three recommendations could equally be applied throughout the Football League structure comparatively easily.
Whether footballers are viewed as human beings, or as multi-million pound club assets, they deserve the protection and safety of the very best medical protocols, whether they want this protection (or in this incident, not). The injury to Lloris represents a warning to the FA that it is not just the professional football clubs that would face negligence liability, but rather the regulator would also be liable for a failure to act in the face of foreseeable injuries. Concussions may be comparatively invisible, but that doesn’t mean the regulator should be as well….
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):
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.
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).
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.
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…” 
The recent decision of the Supreme Court overrules this and Lord Sumption (giving the leading opinion) summarises non-delegable duties at  as applying where:
The claimant is especially vulnerable and/or dependent on the protection of the defendant against the risk of injury
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.
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
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.
The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
While Lord Sumption may have queried that:
“It must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation.” 
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  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”  (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……
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:
“184.108.40.206 – 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.
The claimant (Robert Wilson) received £167,514 damages from the High Court for a lumbar vertebra fracture sustained while sliding down a fireman’s pole from an obstacle course on 4th August 2009. He alleged that the defendant’s adventure activities centre had breached their duty towards him in negligence and under the Occupiers’ Liability Act 1957 through both the actions (or more accurately omissions) of the instructor and through failing to provide an adequate safety system to cushion his landing from the obstacle. Ultimately he only succeeded in the former, but the case is interesting for the causative reasoning.
The incident occurred during the final dismount of the “Burma Bridge” section of the ‘Challenge Valley Course’. This course had been in operation for the last 20 years without serious injury and had been used by an estimated 300,000 people. It was set in a wooded area of the Defendant’s centre and comprised 16 obstacles of varying difficulty. The “Burma Bridge” obstacle was in three sections, an inclined log with footholds leading to a wooden platform set in the trees. From here, participants made their way across a rope bridge to a platform set in a second tree from which they then dismounted by using either a vertical scaffold pole or a ladder.
On paper, there is no allegation that the obstacle, activity or centre was inherently unsafe, indeed the ‘Burma Bridge’ was rated by the defendant as having a risk of 3 (for both likelihood of risk occurring and severity) on the traditional five part scale, and while the defendant had identified a number of contra-indicated groups (children under 10yrs, participants with certain special needs etc), the claimant was a 46yr old part-time scout leader, who had already completed the first obstacle (a 6ft log wall) without undue difficulty. Although there is evidence that he didn’t see himself as particularly athletic and had made self-deprecating jokes about being a “fat taxi driver”, there is no suggestion that he was not capable of safely navigating the course with the other 11-12 scouts attending the centre as part of a camp.
Clyne Farm Centre was a member of the British Activities Holiday Association (BAHA) and subject to their BAHA Code of Practice. There is evidence that they had undergone internal and external safety inspections and sensible risk assessments and instructor training notes had been produced in advance of the accident. At the time of the incident, an “occasional” instructor (Miss Haines) was accompanying the group to demonstrate and explain each obstacle. No criticism was made of Miss Haines’ qualifications or experience.
The key question facing the Court was whether these Codes and documents were appropriate and/or followed at the time of the incident?
On the day in question, the weather was wet and there had been heavy rain the night before. This was important as the Court heard how this increased the slipperiness of the pole, resulting in a number of dismounts that went faster than the participants were expecting. The Court held that Miss Haines did give two warnings about the weather conditions (once at the start of the activity  and repeated again during a demonstration ). The Court however rejected her evidence that she had given a third warning just before the dismount down the pole, as this was contradicted by her oral evidence .
Indeed, Mrs Justice Swift DBE was highly critical of Miss Haines’ “fanciful” evidence , preferring instead that of the claimant and the witnesses [110-113]. This was an important conclusion as Miss Haines had tried to argue that the claimant was the author of his own misfortune by showing off and deliberately letting go of his hands while sliding down. The Court however forcefully rejected this account .
The allegations of a breach of duty by Miss Haines can be summarised into two specific areas:
Failure to demonstrate, or properly instruct the correct technique to be adopted when descending the fireman’s pole.
Failure to offer the option of using a ladder to descend
The other suggestion raised, that Miss Haines failed to ensure that the Claimant had a good grip on the pole or had been stabilised as he moved to the platform, was later dropped following evidence that any attempt to support the weight of the participant would have been unsafe for both parties .
It is perhaps more straightforward to tackle the latter area first. The Defendant risk assessment and training notes specifically stated that all participants should be given the option to descend via either the firemen’s pole or a ladder located alongside the platform . While the Court held that Miss Haines had failed to explicitly offer this choice of alternative methods, it was probable that the claimant would have continued to use the pole (despite his express oral evidence to the contrary being rejected as having the benefit of hindsight) .
By contrast, the failure to demonstrate or instruct the correct technique is potentially more complex. Importantly, the Court accepted that there was not an absolute need to perform a demonstration for every obstacle, rather the nature and substance of this briefing was a discretionary judgment by the instructor taking into account the risks and the group experience . The problem in this instance is that Miss Haines did not adapt or review her briefing to match the group.
Miss Haines concluded that the method of sliding down a firemen’s pole was so obvious that it did not need either a demonstration or further instructions beyond that participants should grip it tightly . To a certain extent, the competent performance of the younger children confirmed this . Unfortunately, the claimant was not a young child and had no experience or knowledge in how to slide down the pole . It is not challenged that the accident was caused because the claimant ultimately did not wrap his legs around the pole to slow his descent , the question is whether the instructor should have given clear and specific oral instructions, or performed a demonstration, or some combination thereof? Somewhat surprisingly, the defence team did not introduce any additional evidence on this point from any other instructors at either the Centre or in the wider industry as to what they felt was appropriate or what their practice was . This seems a curious omission.
Ultimately at , the Court seemed content to leave this choice of methodology to the instructor’s professional opinion, what is clear however is that given the importance of ensuring that there was an instructor accompanying the group and advising on the safe way to navigate the obstacles, this omission to provide ANY advice constituted a failure to exercise proper care, compounded by the lack of adaptation for older participants [140-144].
The other limb of the claimant’s case is that the defendant had failed to provide appropriate shock absorbent material (for example loose particulates like woodchip, or bark) to reduce the risk and/or severity of any injury caused by impact with the ground. This was important as the Court accepted that the Claimant descended the pole at quite a speed with “his bottom taking most of the impact on landing” .
The Court heard evidence on this issue from two expert witnesses, Mr Andrew Petherick (claimant), Mr William Mackay (defendant) who conducted a joint inspection of the accident site on 16th March 2012. Although this 2012 examination of the site was potentially compromised by earlier excavations (not notified at the time to the claimant) which had been requested by the defendant’s initial expert (Mr Alan Preston) to refute whether the base of the pole was made of concrete , the Court did accept that the defendant merely complied with the requests from his expert and there was no intention to deceive . Good practice would however suggest that experts in this area are made aware of their responsibilities to the court process.
The Court also discussed at length the specifications provided by various British and European Standards (BS EN) on the type and depth of materials for play:
BS 5696 ‘Play equipment intended for permanent installation outdoors’ (1976)
BS EN 1177 ‘Impact absorbing playground surfacing’ (1997)
BS EN 1176 ‘Playground equipment and surfacing (2008)
BS EN 15567 ‘Sports and recreational facilities – Rope Courses’ (2007)
While there was some dispute as to whether these standards applied to this case, and if so, to what extent, ultimately though, this proved to be somewhat of a red herring. Although technically the BS EN standards did not have retrospective effect, the BAHA Code of Practice stated that “the operator must be able to demonstrate that the course meets current standards” [Appendix 7]. As such, the BS EN standards should be used as guidance as to what is appropriate . Interestingly, there is no question that the defendant was not aware of the requirements of the standard, as he had been on the working party to initially devise it! 
So, what were the specifications? The interpretation of the relevant standards centred around two key phrases :
Critical fall height – “The height from which is assessed a surface will absorb the impact of a child’s fall sufficiently to reduce the risk of serious head injury”
Maximum free height of fall – “The distance between any accessible part of equipment intended for play and the surface underneath”
From these two distances, it was possible to calculate the necessary minimum particulate depth for the landing area. The latter free height of fall determination was also important, because if the height had been greater than 3m, the defendant would have been in breach of BS EN15567 which required a braking device to be used. Three alternative formulations of calculating this height were discussed :
from the seated position on the platform – 3.1m
from the top position of the hands in a hanging position (which would have been greater than 3m). This was Mr Petherick’s preferred choice as it represented a worst case scenario 
from a climbing position – Mr Mackay’s preferred choice, which according to Table 2, para 220.127.116.11 of BS EN 1176:2008, this distance is calculated from a maximum hand support (3.5m) minus 1m (which would result in a fall height of 2.5m)
The Court held that this latter figure was correct, thereby negating the need for a braking device. Ironically, while Dame Swift was critical of Mr Mackay’s understanding of the fall height calculation , it would seem that she has similarly erred in her calculations in  that the depth of particulate should be 250mm, as this omits the additional 100mm required by the table to allow for particulate displacement. Surely the correct depth value should be 350mm?
When this calculation is combined with Mr Petherick and Mr Mackay’s joint statement , this error is not critical, as the statement clearly identifies five areas of agreement that the impact attenuation area should be:
300mm deep with an additional 100mm to allow for displacement of the particulates
The minimum dimensions of the landing area beneath the pole were laid down by BS EN 15567 and should have been approx. 1.38m (depending on the final agreed fall height)
Lined with polythene (terram) to prevent impregnation of the landing area by soil or water
Should contain no hard objects such as tree roots
Should be regularly raked / dug up to avoid compaction
The reality for Clyne Farm is unfortunately a catalogue of errors, with none of the above requirements being met:
Particulate depth was only 150mm
The distance from the pole to the nearest edge of the tree was only 0.77m 
There was no terram lining 
Substantial tree roots were visible below 150mm in the landing area 
The contemporaneous photograph of the landing area appeared to show heavy compaction in the vicinity of the bottom of the pole 
It is a fairly easy jump from this conclusion to establishing a breach of duty to provide a safe landing area. Surprisingly though, the case then came to a sudden stop. When proving causation, the Court rightly held that it was necessary to prove whether the “failure to provide adequate impact attenuation caused or materially contributed to his injury?” 
The problem for the Court is that it was not enough to state that there was a breach, rather the claimant also had to establish a causal link showing that proper impact attenuation surfaces would have protected against or reduced the severity of his injury. The failure to introduce any expert medical or technical evidence to support this, left the court with no choice but to dismiss this part of the claim !
To a certain extent this is an unsatisfactory situation. It is also somewhat difficult to reconcile with the other part of the claim for instructor breach of duty, because if the woodchips had been compliant with the relevant standards, then this could have been used as a defence against the injury. As it is, we are left with the situation that the breach of duty to instruct ‘caused’ the injury (the falling uncontrollably) while the lack of suitable impact attenuation surfaces (the heavy landing) were held to also be a breach but not necessarily causative. I’m confused, isn’t it the landing that hurts not the falling?
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.
The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.
On 2nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.
About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub .
The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” 
They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:
1)What was the appropriate standard to judge the quality of the inspection
2)Whether this inspection would have revealed the stub (causation)
The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”
So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.
Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:
Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas .
In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!
This test therefore rejects the earlier first instance decision :
“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”
WOULD AN INSPECTION HAVE REVEALED THE STUB?
Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service  1 AC 32, the Court of Appeal was unsure that the stub could have been discovered . In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails .
An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at  Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).
1 Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” 
I suppose this begs the obvious question, when should courts interfere?
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  EWHC 2004 (QB), reasserting the Court of Appeal’s approach in Poppleton v Trustees of the Portsmouth Youth Activities Committee  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  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  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.
The dangers of relying on Queen lyrics as legal precedent is illustrated in the personal injury case of Simon Reynolds (a 49yr old property consultant), who suffered head injuries when he fell from his bicycle following a collision with another rider in a team-building race on 19th June 2008.
The race was part of a team-building event for the 35 staff working in the Canterbury office of Strutt & Parker (a national property consultancy and estate agency). Following a normal morning of work, 30 of the staff met in the boardroom to be divided into six teams of five for a mystery treasure-trail around East Kent, culminating in a trip to Fowlmead Country Park for the second stage of the day.
For those that have never been, Fowlmead Country Park is set amongst 200 acres regenerated from the shale spoil of the former Betteshanger Colliery site, and contained a 2 mile long tar macadam-surface road and cycling track. The idea was to run three types of events, an active and energetic event (the bicycle race), a harmonious and steady event and a thoughtful and considered event.
Each team would effectively sub-divide itself into two pairs and a single person to compete in these events, although it was stressed at the High Court that the purpose of the event was for fun and enjoyment rather than as a competitive and regimented exercise like many traditional team-building days. By the time, the groups reached Fowlmead, many were quite rowdy, having consumed Peroni beer along the route for refreshment.
The bicycle race was held in heats of two teams of two riders, the objective being to finish either 1st, 2nd or 3rd, with the losing team of two being eliminated. The claimant was in the last of the three preliminary heats. Unfortunately, this proved to have quite a competitive undercurrent to it, with tension at the starting line as the claimant jostled for position in a narrow gap, despite the startline for the four riders being 8m wide! . The claimant led for the start and was on target for a first place finish, when 20-25m down the finishing straight, he deliberately leaned to his right to cut up his closest rival, Alistair Cracknell, who was attempting to pass him down a gap on the inside. Cracknell lost control of his bike and in the resulting collision, the claimant was also thrown from his bike and suffered head injuries.
In echoes of recent overtaking manoeuvres (and collisions) in Formula One, the Court held that the claimant made a deliberate decision to behave in an aggressive manner, reckless as to the consequences . This positioning by moving to the right despite there being no racing line or need to do so on a finishing straight is a key factor behind the accident and also immediately distinguishes the case from Caldwell v. Maguire and Fitzgerald  EWCA 1054 where the claimant was not aware of the position of the horses behind him going into a tight left hand bend. As such, the court held that the claimant should hold the greater proportion of the blame and found him two thirds liable.
During the course of the case, a number of questions were raised:
Was the event part of the claimant’s employment? (which would bring him under the more favourable duties owed by the Health and Safety at Work Act 1974)
Should all the riders have been provided with mandatory cycle helmets to wear?
Had the defendants adequately assessed the risks of the event?
DO ALL ESTATE AGENTS RACE BIKES AT WORK?
While both sides accepted that there were corresponding common law (negligence) and statutory (health and safety) duties, the question of whether the event constituted ‘work’ was important for establishing the extent of the duty, as statutory duties in this instance were arguably stricter . Unsurprisingly perhaps, the defendants argued that the event was not compulsory and that,
“the afternoon was intended to afford entertainment and enjoyment to staff in a social atmosphere, and for no part of their work.” 
By contrast, the claimant suggested that all employees were expected to attend, the event was managed and organised by the employer, would be to the employers benefit by fostering an esprit de corps and that there was no deduction from their salaries .
The Court struggled to pinpoint any case or principle on the limits of employment, trying unsuccessfully to apply traditional vicarious liability and the Salmond “close connection” tests . Oliver Jones QC (sitting as the Judge) finally concluded that a jury would:
“simply say that the defendant’s staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.” 
With respect though, it is difficult to see how this conclusion can be justified, indeed it is internally inconsistent with the conclusions over the employer’s assessment of risks and their duties under the Compensation Act (see later). How can an employer be liable for the organisation and management of an event , yet their employees not be engaged in a ‘work activity’ whilst attending it? When my employer arranges team-building events or away days, attendance is expected, especially if they fall on traditional working days. I thought that Lister v Hesley Hall Ltd  widened the scope of employment and vicarious liability, not narrowed it to only traditional working activities. I can hear the reverberations across golf courses all around the country. The effect of this Reynolds definition of employment is that while you are concluding business deals or networking on the golf course, you may not actually be working!
The judgment also continues at  to suggest that justness and reasonableness would be offended if the Health and Safety at Work Act and associated provisions were ever intended to be applied to cases such as these. While it is true that the drafters of the Acts probably didn’t envisage bicycle racing estate agents and property consultants, however if these activities were being carried out as part of an employer-organised event, why shouldn’t they apply? Indeed isn’t that the subtext behind paragraph ?
“I have been referred to and considered the terms of section 1 of the Compensation Act 2006. Whilst the reward of employees by employers in ways such as that chosen in this case is a desirable activity, I am quite satisfied that requiring employers to take reasonable precautions for their employees’ safety will not discourage employers from doing it, or discourage employees from taking part. On the contrary, fun activities are likely to be more attractive if employees are assured that their safety has properly been considered.”
IS CYCLING DANGEROUS?
Crucially, the case hinged around the duty of Mr Church and Mr Backhouse (senior partners at the defendants) to arrange and to organise the event, and to ensure that their employees were reasonably safe in engaging with the activities laid on . The problem was that the defendants risk assessment extended to prohibiting a proposed mountain biking activity as being unsafe . They did not consider any of the risks associated with falling off a bike, or colliding with other riders during the race . (As a very new cyclist, I can testify that both of these risks are patently obvious, indeed anybody that has watched me ride might even go as far as to say expected!) To suggest that the defendants were naïve in this respect is somewhat of an understatement. I accept that one might expect all riders in a professional race to be competent and to a certain extent this is self-selecting (although one only has to note Bradley Wiggin’s recent injury to see that collisions are a part of even professional races). In the current case though, the teams were randomly chosen with no pre-checks or the riders’ competency, indeed the cycle race did not even have a written risk assessment. While it is obvious that the defendants were not aware of the risks, this omission could have been identified had they sought the advice of the Fowlmead management in the risk assessment process, or as the Judge put it:
“This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use.” 
Given the failure to perform an adequate risk assessment, the Court was left with little choice but to conclude that:
“Neither partner organising the event had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors.” 
Even then, by itself, this failure was not a direct cause of the injury to Mr Reynolds, however following Uren v Corporate Leisure UK Limited  EWCA Civ 66, a failure to carry out an adequate risk assessment could be indirectly causative of the injury if the precaution it should have identified (cycle helmet) would have avoided the injury . Sadly this was the case here.
SHOULD YOU WEAR A HELMET WHEN CYCLING?
While there is no law that suggests that the use of a cycle helmet is compulsory, the Health and Safety Executive (HSE) recommended their use and helmets were available at the event. Personal injury case law on cycling, most recently, Smith v Finch  EWHC 53 QB (discussed in detail on this blog) also suggests that the failure to wear a helmet when cycling casually on the roads could amount to contributory negligence. Given that finding, it should come as little surprise that this principle is extended to sport:
“Those who engage in competitive racing, even for fun, or perhaps because it is fun, should be held partly to blame for the failure to protect themselves.” 
Because the claimant did not wear a helmet, despite suitable equipment being offered and available to him (even though only 1 other rider availed himself of a helmet), the Court held that this constituted contributory negligence.
My advice to any cycling event organisers – make sure that your riders wear helmets and don’t take Queen lyrics too seriously!
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Kris is an Associate Professor of Sport Law, and Co-Director of the Centre for International Sports Law (CISL) at Staffordshire University, UK. He originally trained and competed as an elite gymnast until a shoulder injury at university forced him to retire as an active competitor. He now spends his spare time coaching Trampolining, Gymnastics, DMT, Cheerleading, Parkour and anything that involves throwing yourself through the air with various degrees of twist and rotation!
Jon is an Associate Professor, and Co-Director of the Centre for International Sports Law (CISL) at Thompson Rivers University, British Columbia. Jon worked as a climbing guide, trained and coordinated search and rescue, managed risk and sales in the United States with a European-based manufacturer of outdoor equipment and advised recreation programmes on their exposure to legal risk. His extra-curricular background is just as diverse and includes stints playing semi-pro volleyball in Brazil, researching wolves in the Canadian Rockies, climbing and leading expeditions from Alaska to Argentina, Tajikistan to the Tetons, and many points in between. He has been married to Wendy for 15 years and together they have 2 wonderful kids – Tegan (10) and Brock (8) – whom he continues to emotionally scar as their football coach!