Tag Archives: risk

BASE Jumping – The link between rules and risk

December 15, 2015

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By Deanna Campbell – Thompson Rivers University JD Student

The recent deaths of BASE jumper and pioneer rock climber Dean Potter along with his friend Graham Hunt this past spring in Yosemite National Park, have renewed the call to legalize BASE jumping particularly in U.S national parks which provide access to some of the best and arguably safest spots.

Base JUMPING is parachuting or wing suit flying from a fixed structure or in most cases, a cliff.

The sport of base jumping in North America operates in a legal grey zone. Base jumping is actually not illegal but some of the actions required to execute it are. Rather than the act or sport itself being outlawed, other laws and by-laws are relied on instead. Possible charges include breaking and entering, reckless endangerment, vandalism and trespassing.

Base jumping is however illegal in US national parks under “aerial delivery” laws that prohibit some forms of aerial activity in particular areas. If you are caught, you can be fined up to $2,000, have your gear confiscated and incur the costs of any required rescue.

Base jumping has not seen the same popularity in Canada; however, there are versions of it such as the new sport of speed-flying. It is also not without risk and death. A speed flyer died this past July jumping off the Stawamus Chief in Squamish, BC. Speed flying or any other aerial activity for that matter is not illegal in BC Parks. It is also not regulated or supported given the high risk associated with it. Rather, governmental officials have taken the “we do not condone or promote it” approach.

BASE jumpers argue that the enforcement of policies which outlaw BASE jumping increase the danger of it. For example, it forces flyers to jump in non-optimal conditions to avoid detection by park rangers, i.e., in low light. The threat of arrest adds an unnecessary distraction in a situation that demands full concentration and calculation. Many jumpers choose to not use their best equipment, knowing that if they are caught their gear will be confiscated.
The logic is simple: If you remove the criminal sanction, you decrease the risks and make the conditions within which the sport operates safer.

But is it really that simple? BASE jumping is an inherently dangerous sport with or without safeguards. It is estimated that between 5 and 15 people die each year from it. For a sport that sees a significant number of deaths even in a legalized environment (an average of six jumpers die a year in Switzerland where it is legal), and participants who openly acknowledge that despite the skill required, “you have to accept you might die doing it,” it is not entirely unreasonable that officials are hesitant to legalize or condone it, especially in an environment like a National Park that sees a number of tourists who are not there to take in the sight of someone potentially falling to their death.

Then again, all extreme sports see injuries and deaths. If there is a way to minimize those deaths then it is not really any different from other regulated high risk activities. But this would also open up the potential for liability on the part of park and government officials. One way to deal with that however is to require jumpers to have liability and rescue insurance similar to what Switzerland does.

BASE jumping is legal in many other areas and countries like Switzerland and Norway. The small Swiss town of Lauterbrunnen allows BASE jumpers free reign, letting them jump off the Alps and land in fields below. The Swiss BASE Association also has a jumper’s code of ethics and landing cards authorizing landing only in those designated areas.

A similar system could possibly work in the U.S. and Canada. Flyers/jumpers would be required to prove they have sufficient experience including safety training, and then remote cliffs and areas could be opened up to the sport.
Despite these potential regulatory schemes, BASE jumpers still have a great deal more work to do to find legal legitimacy in their sport, as the tragic death of Potter and many others may only serve as further rationale to keep the sport where it is, operating in the shadows and on the fringes.

 

 

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Low Pay, High Risks, Extreme Glory

October 18, 2015

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By Deanna Campbell – Thompson Rivers University 3L JD Student

In the weeks leading up to the one of the biggest mountain biking events of the year, the risk versus reward debate has arisen in a sport not unfamiliar with the discussion. This October marks the 10th edition of Red Bull Rampage, an extreme mountain bike event that sees some of the world’s best big mountain riders take freeriding to the next level in unforgiving terrain outside of Zion National Park in Utah, USA.

Many competitors and commentators take issue with the small amount of prize money awarded to athletes given the dangers and risk involved. The Freeride Mountain Bike Association (FMBA) regulations set out the minimum prize money amount to be awarded ($35,000 USD) but it is up to the event organizer (in this case Red Bull) to determine the actual payout. Only the top five riders ride away with paycheques and placing anything less than 1st can award you with as little as several thousand dollars. And what about those who do not place? Should all athletes participating in Red Bull Rampage be compensated?

Some argue that in the interest of fairness, every competitor who qualifies should be amply compensated as a professional performer for participating in Red Bull Rampage or any FMBA event. Every rider lays down their lives for the competition. To be sure, one need only watch footage or view photos of some of the horrific crashes and close calls at Red Bull Rampage over the years. It is surprising that there have not been any fatalities yet. Proponents of compensation for all liken the athletes to performers in a show. Win or lose they are putting on a spectacular performance, one the promoters cash in on regardless of where the athletes place. Crashes are just as much a part of the competition, they add excitement and drama to the event and set the bar for which all competitors can be judged.

And Red Bull Rampage is costly for the riders. Mountain bike athletes rely primarily on income through support from sponsorships, and prize money from competitions. Unless financial incentives and support from sponsors are provided, athletes pay their own way to Rampage. The FMBA requires all athletes to purchase and have medical insurance and sports liability coverage. This can be expensive and in some cases insufficient. Mark Matthews, an athlete who competed in Red Bull Rampage 2013, suffered a serious injury during his run and required surgery. His insurance provider refused to pay citing his professional sports activities as “too dangerous.” He was left with $40,000 in medical bills. Examples like this leave many arguing that given the little amount of money competitors already receive in contrast to the large revenue generated from the competition, Red Bull should at least provide and cover the cost of health insurance for the competitors.

The riders also have little to no recourse if they get injured or die. The disclaimer that Red Bull has athletes sign absolves Red Bull and any third parties of any and all liability even in the event of Red Bull’s own negligence. Riders voluntarily assume all and any risks releasing everyone from liability except themselves.

While all this seems unfair, it doesn’t equate to any obligation, legal or otherwise, for Red Bull to compensate all athletes. To do so would change the nature of the competition and the nature of the relationship Red Bull has with the competitors. Red Bull is the promoter and Rampage is a contest, not an exhibition. There are some events/venues that pay athletes directly for appearance fees (i.e. golf, tennis) but this is freeride mountain biking, where competitions are traditionally a winner takes all format. You only get compensated if you place. This makes good sense – it would take away from the spirit and tradition of the sport to reward everyone for just being there and taking risks. Competitors are well aware of the inherent dangers in their sport and accept that risk when they compete. There are, so the argument goes, winners and losers and winners are the parties who ought to be rewarded.

As for the “losers” the risk does not go without any reward. Just competing in Rampage comes with mass exposure, possible sponsorships deals, and a huge sense of athletic achievement. Not to mention glory. You would be hard pressed to find a mountain biker who said he or she was in it for the money and not the glory.

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The real risk in extreme sports

February 6, 2012

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The Vancouver Sun published on February 1st an op-ed piece about risk in extreme sports (click here for the article) that I wrote with Jeff Jackson, a professor in the Outdoor Adventure Program at Algonquin College in Pembroke, ON. Here are a few excerpts:

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It has been interesting to observe the amount of media coverage assigned to Sarah Burke’s crash while training on the superpipe in Park City, Utah, her hospitalization and subsequent death on Jan. 19. The accident was splashed on the front pages of newspapers and given considerable air time on the news or sports shows daily.

…..

Events such as this are an awful reminder that the risk so cavalierly discussed in the abstract is real and the consequences of it being realized can be fatal.

That Burke died is tragic, but not unimaginable.

…..

Spectators at home or on the slopes watch sports like downhill skiing or superpipe to see super fast speed or spectacular flips, twists and jumps. But we also can’t help but wonder and ask if the public and event organizers of extreme sports also secretly wish for crashes because it makes for great TV — just as long as the athlete walks away without severe injury.

But how can this qualification be made? Any sensible person should be aware that skiing at 150 km/h or hucking huge air on a six-metre superpipe must carry with it the risk that someone could get really wrecked.

So why do we act surprised? Maybe the collective, almost cathartic outpouring of grief in response to Burke’s death is a substitute for subconscious guilt at enabling this to happen.

…..

Extreme sport used to be the domain of the lunatic fringe. Those who participated had their own personal reasons for performing high-risk activities. Now, however, extreme sport has become mainstream and usurped by corporate interests giving rise to the X-Games and inclusion of high-risk sports in the Olympics. Some athletes are getting rich in the process. Snowboarding superstar Shaun White earns about $8 million a year in sponsorships.

There is a fear the adventure and extreme sport community is being adversely affected by “big business” whose representatives coerce extreme athletes into taking risks they’re not ready or equipped to take.

At issue is the perception athletes at the leading edge of risk are making decisions motivated by bling or profit rather than strictly based on a dispassionate and rational assessment of the situation.

Unspoken in the discussion is that a free-market economy is based upon risks and rewards. What some people find offensive is that this fundamental premise grounded in competition is now being applied to extreme sport and adventure. That rather than climbing a mountain for intrinsic reasons — ‘because it’s there’ — instead athletes are performing outrageous and high-risk stunts because that’s what it takes to win or a sponsor demands it. And there’s nothing wrong with that.

In a free society, we are able to make our own decisions, whether as a Wall Street broker trading in derivatives living in a Manhattan penthouse suite, a ski bum living out of a VW bus, or an extreme athlete operating at the edge of what’s humanly possible. So long as we go in with our eyes wide open, fully aware of what we’re getting ourselves into. It also means we live with the consequences of those decisions whether it’s fame or fortune or life and limb.

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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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Perspective and Probability in Heli-skiing

January 7, 2012

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I was interviewed on Radio NL 610 AM late last week in regards to two avalanche fatalities in the final days of 2011. Part of my message was that while these deaths are distressful, some perspective is in order. For example, there were four shooting murders in the four days after Christmas in Surrey, BC, just three hours west of where I live. Further, there are approximately 400 drowning deaths a year in Canada. Some have argued (as did my interviewer in an earlier editorial) that the answer lies in the regulation, legislation and criminalization of the behaviour (ie. reckless skiing, boarding or sledding) which gives rise to these deaths. I believe that many people who pursue such activities balance the risks and make informed decisions but I also acknowledge that some go in blind with little real skill and are essentially playing Russian roulette. The bottom line for me is the right of recreationists to take risks and make mistakes – even if it costs them their lives. The ‘solution’ (assuming there is a problem) is not to legislate or criminalize but to educate and hope that good and safe decisions are made.

The second avalanche fatality involved a client with a commercially guided heli-ski operation. According to a piece in The Globe and Mail (click here to read the article), what I found interesting was Canadian Mountain Holidays Inc. lawyer Marty von Neudegg’s efforts to brand heli-skiing in the aftermath of an avalanche fatality as a “wilderness experience sport’ rather than “extreme sport” which almost makes it sound like he’s selling safe heli-skiing. He comes closer to the edge in acknowledging that risks exist but the inconvenient truth is that heli-skiing is inherently dangerous and that even the best guides cannot eliminate all risks. Says von Neudegg, ‘There are risks, for sure, but our guides … want to come home at the end of the day and they are not pushing the edge. We try to stay well inside the boundary, but obviously in this case, something went wrong.’

It is incredibly sad that Greg Sheardown died and my heartfelt sympathies go to his family. Clearly something went wrong though. But that doesn’t necessarily mean someone did something wrong. CMH has had 11 avalanche fatalities in 9 million group ski runs; those are pretty good odds. This may just be an unfortunate and tragic instance of the laws of probability catching up in the heli-skiing industry.

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Bicycle races are coming your way so forget all your duties, oh yeah!: An analysis of Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB)

September 20, 2011

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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. 

BACKGROUND

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! [18]. 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 [26]. 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 [2001] 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 [34]. 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.” [3]

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 [35].

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 [35]. 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.” [37]

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 [40], 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 [2002] 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 [38] 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 [46]?

“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 [40]. The problem was that the defendants risk assessment extended to prohibiting a proposed mountain biking activity as being unsafe [12]. They did not consider any of the risks associated with falling off a bike, or colliding with other riders during the race [24]. (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.” [42]

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.” [28]

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 [2011] 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 [41]. 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 [2009] 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.” [45]

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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Taking NIMBYSM to new heights

September 14, 2011

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

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

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

 

AUTONOMY / PATERNALISM

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

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

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

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

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

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

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

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

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

 

THE COST OF FAILED JUMPS

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

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

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

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

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

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Common sense, common safety and the common good in risk-based recreation

January 20, 2011

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Solicitors Journal (Vol 155 no 2) just published an article Kris and I wrote entitled, ‘Bump in the night‘ about Scout Association v Barnes [2010] EWCA Civ 1476 which concerned a 13-year-old scout who was injured while playing an indoor game during a meeting at their scout hall. Here are a few excerpts:

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“It is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities,” said Lord Justice Jackson in his report on the costs of civil litigation.

While Jackson LJ’s comments reinforce the approach endorsed by the House of Lords in Tomlinson v Congleton Borough Council [2003] UKHL 47 and section 1 of the Compensation Act 2006, the challenge for the judiciary has been to balance the needs of compensating injured claimants with defending inherently dangerous activities from a ‘compensation culture’.

In writing for the majority [in Barnes], Ward LJ acknowledged the difficulty in drawing the line between emasculating those responsible for caring for children and enfeebling the children themselves and wondered whether this is an instance of an overprotective nanny state robbing children of fun because they were exposed to some risk in a game.

The judgment effectively came down to a consideration of the social value of the activity. Given that the modification to the game (to play it in the dark) was only to increase the excitement associated with it and was not for any social or educative value, this could not justify the additional foreseeable risks.

This judgment has far wider implications than just the scout movement, indeed as the court themselves realised potentially all recreational activities stand to be reassessed by what is effectively a judicial value judgment of the utility of the risks being run. The inherent problem with this approach, however, is that, if strictly applied, many activities such as climbing or skiing may struggle to demonstrate a wider social utility in the conventional sense of the phrase, and the famous words of George Mallory to answer why he wanted to climb Mount Everest – “Because it’s there” – would no longer apply.

While the emphasis in Barnes on establishing a social utility as a defence against risk is clearly in line with the current governmental policy on providing access to risk in safe, controlled environments, this will have a detrimental effect on some recreational providers. Perhaps the approach should now be ‘Common sense, common safety, and the common good…’

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The full article is here.

The court case is here.

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When is a coach liable for the injuries of their athlete?

October 17, 2010

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Davenport v. Farrow [2010] EWHC 550 (QB)

Read the full case here (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/550.html&query=davenport&method=boolean)

The case concerns a claim by Richard Davenport (24yr old GB track athlete) against his former coach David Farrow (a top-level UK Athletics L4 coach). Davenport claimed damages for personal injury, consequential loss and damage caused by Farrow’s:

  • Negligence
  • and/ or breach of contract
  • and/ or breach of statutory duty

The personal injuries alleged were stress fractures of the spine (bilateral spondyloses at L5) which prevented him from training or competing from 2005-2007. Essentially the claim turned on when these fractures occurred – during an intensive training camp as alleged by the claimant, in which case, issues arose as to what if any steps should have been taken to investigate and/or manage them; or prior to 2001 as alleged by the defendant in which case, no duty would arise and the claim would fail.

Although both parties called expert medical witnesses in support of their case, it was impossible to state with any certainty when the injury occurred and the nature of the evidence was that both conclusions could be supported by the symptoms described.

The Court however concluded that it was more than likely that the stress fractures occurred at an earlier stage than Oct/Nov 2004, as Davenport had claimed. Mr Justice Owen gave the following reasons in support of this finding:

  • The claimant could not describe with any clarity when the symptoms came on, despite detailed and accurate records being kept of his high-performance training [58]
  • The level and intensity of the training camp in 2004 was not markedly different from the previous year’s training and was considered to be an acceptable practice for an athlete of Davenport’s ability and aspiration [60]. This was important as Farrow was a volunteer coach and designed and managed the training regime.
  • During 2004, Davenport was treated for a number of leg injuries, in South Africa, the UK and at competitions and despite referrals to a number of independent medical professionals, no complaint was made about any back injury [60-65]
  • While the claimant suggested that Davenport thought that the claimant lacked motivation, had an attitude problem and was lazy [32], and as such did not take his complaints seriously, an independent witness gave evidence that the claimant’s parents shared Farrow’s view [66].
  • If an athlete had been suffering from acute spondyloyses in Oct / Nov 2004, he would not have been able to have continued to have trained at the level and intensity that he was running at [67]

Given these conclusions, the claim failed.

 Arguably though, the most interesting part of the judgment was in an area not explored in any real depth by the Court, namely the role of a High Performance coach and the dynamics of that coach-athlete relationship. On 11th January 2004, Davenport and Farrow formalised their coaching relationship by a written contract [7]:

4. THE COACH/MANAGER’S OBLIGATIONS

4.1 The Coach/Manager shall provide coaching and advice to the Athlete (retaining the right to coach other Athletes). Such coaching is to include advice on fitness, health, diet and training schedules, strength and track training schedules, mobility work, injury prevention and rehabilitation, race tactics and strategy, advice on a programme of events to participate in, to accompany the Athlete to events and make himself available to the Athlete at all reasonable time and upon reasonable notice for the purposes of consultation and advice pertaining to the Athlete’s career, both competitive and commercial.

5. PERFORMANCE, FITNESS AND INJURIES

5.1 The Athlete undertakes that other than pursuant to his/her obligations under this Agreement he/she shall not during the term of this Agreement participate in any professional or other sporting activity or practice that may endanger his/her fitness or ability to compete without the prior permission of the Coach/Manager.

5.2 The Athlete undertakes that he/she shall at all times during the Term compete to the very best of his/her ability and he/she shall make all reasonable endeavours to maintain his/her form and health so as to be available for regular competition.

6. THE ATHLETE’S OBLIGATIONS 

6.1 The Athlete will, during the Term but subject to the Athlete’s obligations in his/her education:

(a) make himself/herself available for all competitions and for training and for other duties … as and when required by the Coach/Manager … unless prevented from doing so by his/her obligations under any agreement relating to his/her participation in an international team or by illness, injury or accident or other cause which the Coach/Manager agrees so prevents him.”

What was left unanswered was whether the fact that there was a written contract increased a coach’s obligations towards their athlete? Or was it simply a good practice management of everyone’s expectations?

Farrow also deterred his athletes from playing other sports because of the potential injury risks these activities represented [5] and at: http://www.telegraph.co.uk/sport/4775917/Schools-Sport-Contact-games-taking-toll-on-athletes-says-coach.html. Did he have a point? Or should athletes only specialise much later in their careers? Indeed can athletes gain additional skills and experience from taking part in unrelated activities?

The final area of contention related to the degree of control a coach should have over an athlete. Although a number of other athletes also gave evidence though to suggest that they did not agree that Davenport was unduly domineering or imposed unreasonable demands given the level of commitment to their sport that was expected of them, in the Court case [27], it was suggested by the claimant and another former Farrow Protégé (Emily Pidgeon) that Davenport was:

“a forceful and controlling personality who demanded a high level of control over the young athletes whom he coached. He gave evidence that the defendant wanted a say in all aspects of his life. The defendant would telephone on an almost daily basis, and would question his mother about what she was feeding him, wanting to control his diet. As he grew older the defendant would check on what he was doing outside training, wanting to know if he had gone out, and whether he had got back at a reasonable time. The claimant’s evidence was supported by that given by his mother who said that as the years went by, the nature of her contact with the defendant changed from brief discussions to detailed inquisitions into the claimant’s routine outside training. Although she found it surprising, she accepted that that was how professional coaches operated.”

So what control should a coach exert over an athlete? And how would this relationship affect liability?

POSTSCRIPT

Richard Davenport has now re-recorded his personal best at an athletics meet in the summer: http://www.thisisgloucestershire.co.uk/news/Davenport-races-fantastic-PB/article-2361854-detail/article.html

In 2007, David Farrow was stripped of his UKA coaching licence for five years following an alleged abuse of trust with a senior athlete he was coaching: http://www.telegraph.co.uk/sport/othersports/athletics/2309581/Coach-guilty-of-abuse.html

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Adventure voyeurs and ambulance chasers

March 24, 2010

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http://www.theglobeandmail.com/news/national/british-columbia/season-of-destruction-continues-on-the-bc-slopes/article1507219/

It says something about the Canadian psyche that the media give much greater coverage and the public more attention to three snowmobilers recently dying in avalanches than two people murdered last week at an Edmonton car dealership and the mother and daughter fatally shot in Belville, Ontario.

The incredible interest in snowmobile avalanche fatalities begs the question why do we care so much? Did we show the same sympathy and compassion to the Edmonton and Belville victims? Do we care as much about the seven people who die daily in car accidents in Canada? Have we become so inured and, dare I say it, bored with the ordinariness of such deaths that we’ve become adventure voyeurs and ambulance chasers into the wild?

The matter seems motivated by the cost of search and rescue (which – if the truth be told – is infintismisally small relative to the costs of health care and social programs, not to mention the more than $6 billion spent on the Winter Olympic Games) and the safety of searchers (which is a valid consideration but too must be placed in perspective – no search and rescuer in BC has died looking for a snowmobiler).

The case has yet to be convincingly made by anyone why it is in the public interest to criminalize snowmobilers who trigger an avalanche. Charging them with criminal negligence causing death is problematic because the case would rely on what a reasonable person would have done in the circumstances. Extreme sport is, by definition, not the stuff done by a reasonable person. There is nothing safe about such pursuits; danger is intentionally sought after. That’s the whole point. In this light, the prospect of a conviction seems remote.

Some have suggested that sledders’ defiance and disregard for the safety of spectators merits their punishment by the law. This is not an instance of a victim being hit by a stray bullet in a drive-by shooting. The spectators at the unsanctioned event called the Big Iron Shootout are no less culpable for being there than the sledders highmarking on the slopes of Boulder Mountain. They were, after all, positioned in an open and obvious avalanche trap for the sole purpose of watching the spectacle of highmarking.

Others are too quick to pound the square peg of adventure into the round hole of socially acceptable behaviour and judge the reasonableness of risk-taking actions against such conventions. Those who participate in adventure – whether it be snowmobilers, climbers or backcountry skiers – are (or should be) willing to accept responsibility for their actions.

As someone who has spent a considerable amount of time in the mountains, I would not want anyone telling me what I can and cannot do and where it can or cannot be done. It is understandable that snowmobilers feel the same way. I am shocked and saddened that so many in the outdoor community seem to feel that it is appropriate that snowmobilers be regulated.

Many outdoor recreationists are angry that snowmobilers are, in their view, irresponsible and disrespectful of the mountains. Perhaps it is that anger and sense of betrayal that spurs them to lash out and propose shackling the wilderness with regulation.

The climbing instruction ‘Bible’ is aptly entitled Freedom of the Hills. Implicit in its title is that backcountry recreationists have the right to take risks which may unfortunately include decisions that result in their deaths. It is troubling that there are those who paternalistically believe that government has the right to protect – sledders in this instance – those who do not wish their protection. If this happens, I fear that it will represent the thin tip of the wedge representing just the beginning of a process which will inevitably sweep up all users including skiers.

And when heli-skiers are again killed in an avalanche as did the nine who perished in a single event in 1991 (or the two in Wells Gray Provincial Park earlier this week) or climbers die as occur annually, we should not be surprised if the government steps in to clean up our mess because we’ve said it’s OK to intervene. The problem, though, is that perhaps this isn’t as messy or bad as critics paint it.

Maybe this is just the natural consequence of playing in the uncontrollable environment of the mountains where users have different tolerances for risk. This may come across cold hearted but maybe it’s the inevitability of adventure. Just as in Vegas, the house always wins.

It is sad when people die in the mountains. Indeed, it is sad when people die – period. The solution doesn’t lie in B.C. Solicitor General Kash Heed’s proposal to pass laws governing how and where people should recreate. Heed underestimates the difficulties that lie ahead – much like misreading an avalanche slope – in considering closing mountains to public access, charging for reckless behavior (don’t most people already consider backcountry skiing and mountain climbing to be inherently dangerous if not outright stupid?) or pressing criminal negligence charges, or in ominously thinking about moving ‘to a different stage’ to do whatever the government can to regulate such recreational activity and restrict access to Crown land. This would sound the death knell for adventure. 

The inconvenient truth is that recreationists have the right to take risks. With echoes of his late father, Justin Trudeau submits that there should be no limits of access to the backcountry for Canadians and that it is not the business of the state to oversee where people play in the wilderness. The answer resides in educating sledders and communicating to them in a meaningful way about the risks they take and hoping they make the right decision.

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