Outdoor Activities, Negligence and the Law

Julian Fulbrook

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351913096
• Edition: 1
• Topic: Droit
• Subtopic: Droit des médias et du divertissement

Recent years have witnessed several tragedies during school and youth expeditions. This in turn has led to legislation and the tight regulation of Outdoor Activity Centres, with successive governments issuing guidelines for teachers and others supervising such activities. Inevitably there will always be risk in relation to adventurous pursuits in the outdoors, but the law in this area seeks a balance between the educational benefits gained and the need to safeguard against potential hazards. Mythologies have arisen, including the suggestion that a 'blame culture' is so overwhelming that no youth worker or teacher can sensibly engage anymore in such activities. This succinct guide to the legal position refers to a wide range of outdoor activities and recent legal cases. It demolishes some of the myths, pointing out common pitfalls noted in the research and in the litigation, together with an outline of robust safety features to combat potential hazards.

Chapter 1
Introduction

When four teenagers on a school trip at a Lyme Bay activity centre died in 1993, it sparked a major public debate on the safety of outdoor pursuits. This kayaking tragedy led to a custodial sentence for the owner on manslaughter charges, to the passing of a private member’s bill which became the Activity Centres (Young Persons Safety) Act 1995, and to a raised awareness of safety issues for schools and activity organizations.

But has the balance swung too far? Is there now an aversion to risk, and the threat of legal culpability, which has become counter-productive? Are we in danger of being ‘over-lawyered’ in the outdoors? Are we losing sight of the considerable advantages that adventurous activities can give to participants, and in particular to the development of young people? And what of the much vaunted ‘compensation culture’; is it myth or reality? And even if it is merely a mythical perception, what effect, if any, does this have on outdoor activities?

Criminal charges

In the decade since November 1994, when the Lyme Bay defendants, OLL Ltd and Peter Kite, its managing director, were convicted of manslaughter, there have inevitably been other tragedies leading to the courts. Lyme Bay is unique because it was the first immediate custodial sentence for a company director on a corporate manslaughter charge.¹ One important point in the Lyme Bay case was that it was possible to pinpoint a ‘directing mind’ in such a small company, whereas in a large business, as with the Zeebrugge disaster in 1987, when 188 people died after the capsize of the ferry Herald of Free Enterprise, criminal charges failed because no individual senior personnel were found to be sufficiently at fault. Private prosecutions were also brought after 51 people died on the Marchioness when this pleasure cruiser on the Thames sank in 1989, and after the explosion of the offshore oilrig Piper Alpha which killed 167 people in 1988; but in both cases these failed for lack of evidence. When the trawler Pescado sank in 1991 with the loss of all six crew, the managing agent Joseph O’Connor was acquitted of manslaughter, but was found guilty of gross negligence and was sentenced to three years’ imprisonment. It can therefore be seen that manslaughter charges are both complicated to bring and very difficult to succeed with.

A very important and unique instance of a teacher being imprisoned, following a school trip, was the case in 2003 of Paul Ellis, who was sentenced to 12 months after Max Palmer, aged ten, drowned in Glenridding Beck while engaged in ‘pool plunging’. Mr Ellis, who was head of geography at Fleetwood High School, pleaded guilty to a charge of manslaughter, admitting that his conduct had fallen so far short of a reasonable standard of care that it amounted to ‘gross negligence’. Morland J at Manchester Crown Court stated that he had initially considered passing a three year prison sentence, as the teacher had in his view been ‘unbelievably foolhardy and negligent’, but accepted factors in mitigation.² Mr Ellis was a member of Britain’s second largest teaching union, the NASUWT, who for several years have urged their members not to lead or participate in school trips. The union refused to comment after the sentence on Mr Ellis, but the general secretary of another union, David Hart of the National Association of Head Teachers, noted that this case ‘demonstrates all too clearly the very vulnerable position teachers are in if they act recklessly and without due regard for the safety of pupils in their care’.³ The current general secretary of the NASUWT, Chris Keates, told the House of Commons select committee on education in 2005 that her members ‘faced spurious legal action from parents unable to accept that there was such a thing as a genuine accident’ and that there was a ‘huge fear of litigation in schools’.⁴ The NASUWT claim to have supported twenty members in legal action relating to school trips in the last three years, although only Mr Ellis faced criminal proceedings. This is in the context of a Government estimate that there are around 7 million outdoor school visits each year, although this is probably rather narrowly defined; even so there must be thousands of school trips each week.⁵ However, any attempt to make Mr Ellis into a martyr seem doomed to failure; the subsequent Health and Safety Executive’s report on Glenridding Beck in 2005 is absolutely damning and the case is clearly an aberration on the normal conduct of school trips. Dr Stephen Garsed, the HSE inspector, concluded that the two main causes of the tragedy were ‘the inappropriate actions of the leader’ and weaknesses in school management which allowed an ‘unsuitable leader to be in charge of a party of schoolchildren in a high-hazard environment’. His investigation showed that the teacher had lied about his leadership qualifications; he failed to make the most basic inquiries about whether the children in his care could swim; he took his group to the hills and to jump into Glenridding Beck with no protective clothing such as wetsuits, waterproofs or buoyancy aids; he allowed the children to ‘plunge’ when the water temperature was just 8 degrees, the stream was ‘raging’ after heavy rain, and when he had been starkly warned by teachers in another school group that the pool was ‘too dangerous’ in these conditions; and he had no rescue equipment such as a throwbag, nor indeed the knowledge of how to use it.⁶ The Glenridding Beck investigation in 2005, and the criminal trial of Paul Ellis in 2003, therefore reveal a hopelessly reckless disregard for safety judged against any guidelines or indeed against even plain common sense. It is indeed a textbook example on most of the obvious issues in how not to lead an outdoor trip.

In an earlier case involving drownings, after two schoolgirls had lost their footing in October 2000 and had been swept away in Stainforth Beck, the Crown Prosecution Service decided there was not enough evidence to prosecute teachers, senior school staff or Leeds City Council for manslaughter. This Stainforth Beck case arose out of a ‘river walking trip’ on an annual adventure week, but there were clear distinctions from Glenridding Beck, as the full hazards of this ‘low risk activity’ were not clearly understood at the time and the actions of the teachers were not judged by the coroner to have met the standard of ‘unlawful killing by gross negligence’. This was a controversial view, contrary to the evidence of several witnesses and the protests of the parents.⁷ However, one of the expert witnesses at the inquest was Marcus Bailie, Head of Inspection at the AALA; he actually praised the actions of the teachers, who he said had ‘acted in a way which was exemplary and perhaps heroic’, after the teenagers had been swept away.⁸ Nonetheless he pointed to serious lessons to be learned from this case, such as an underestimation of ‘the power of water’ and ‘inherent practical weaknesses with joint leadership’.⁹ The Health and Safety Executive subsequently prosecuted Leeds City Council on lesser charges, for breach of health and safety regulations, leading to a fine of £30,000 plus the costs of the HSE amounting to £50,000.¹⁰

Other teachers and drivers concerned in school trips abroad have been prosecuted for manslaughter equivalence infractions: for example in 2002 Mark Duckworth, a teacher from Cockburn High School in Leeds won an appeal in a French court against a suspended sentence for six months’ imprisonment on involuntary homicide after Gemma Carter drowned at Le Touquet.¹¹ Several lessons need again to be learned from that case of ‘impromptu paddling’ at the seaside after an evening meal.

Manslaughter has different aspects, but an important facet of one sort of manslaughter is death through ‘gross negligence’, and Professor Slapper has shown how ‘the offence occupies an indistinct place between, in modern terms, tort and crime’.¹² As indicated by Lord Mackay of Clashfern LC in the leading case on manslaughter, R v Adomako, it is also ‘open to a trial judge to use the word “reckless” if it appears appropriate’.¹³ Whether the kind of conduct required for a manslaughter charge is portrayed as either ‘gross negligence’ or ‘reckless’, this criminal law standard is clearly a level above the civil compensation threshold of ‘ordinary negligence’. However, the borderline is inevitably opaque and a ‘jury question’ to determine on the individual circumstances of each case. Some commentators have called for changes in the law, which would allow for reform of the current manslaughter provisions, and its supplementation by an offence of ‘corporate killing’, which might set a lower barrier for the culpability of trip leaders and their organizations. A proposal in the Queen’s Speech in November 2004 now heralds Parliamentary debate on a draft Bill, which is to be published shortly. Although this measure has been promised for some considerable time and the complexities have been much debated, it is not entirely clear what potential criminal liabilities, if any, might impinge on schools and outdoor organizations in the future. One critic, a partner in the leading solicitors’ firm Ince & Co, has suggested that such a ‘blame culture satisfies an understandable demand for retribution but drives mistakes underground. This deprives the wider community of the lessons to be learned’.¹⁴

Civil claims

However, the more important focus of the law on outdoor activities is on civil remedies to obtain compensation for injuries. The last decade since Lyme Bay has seen a small number of high-profile investigations and civil claims, leading to significant alarm in schools, clubs and organizations about their legal liability. The mechanisms for such civil claims is the tort of negligence, which sets yardsticks for a duty of care which may be owed to participants, but there are many mythologies about both the hazards of outdoor pursuits and also the hazards of litigation. To read some commentaries it would appear dangerous in the extreme to organize any outing for youngsters at all. There also seems to have developed in some quarters a repeated mantra about a ‘blame culture’ which has allegedly been sapping the very fabric of society. For example, Professor Atiyah, the distinguished analyst of tort, has argued that the law is ‘too generous’ and that he along with ‘many members of the public feel uneasy about the increasing spate of claims for damages’.¹⁵ A High Court judge, Rougier J, commented in 1996 that ‘It is a truism to say that we live in the age of compensation’ and that ‘There seems to be a growing belief that every misfortune must, in pecuniary terms at any rate, be laid at someone else’s door, and after every mishap, every tragedy, the cuppe...