OUTDOOR ACTIVITIES, NEGLIGENCE AND THE LAW.

289 Pages·2016·3.33 MB·English

by  FULBROOK, JULIAN

OUTDOOR ACTIVITIES, NEGLIGENCE
AND THE LAW
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Outdoor Activities, Negligence
and the Law

JULIAN FULBROOK
London School of Economics, UK
First published 2005 by Ashgate Publishing
Published 2016 by Routledge
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Copyright © Julian Fulbrook 2005
Julian Fulbrook has asserted his right under the Copyright, Designs and Patents Act, 1988, to be
identified as the author of this work.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
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Product or corporate names may be trademarks or registered trademarks, and are used only
for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
Fulbrook, Julian
Outdoor activities, negligence and the law
1. Liability for school accidents - Great Britain
2. Liability for sports accidents - Great Britain
3. Recreation - Law and legislation - Great Britain
I. Title
344.4'1075
Library of Congress Cataloging-in-Publication Data
Fulbrook, Julian.
Outdoor activities, negligence, and the law / by Julian Fulbrook.
p. cm.
Includes bibliographical references and index.
ISBN 0-7546-4235-6
1. Liability for schools accidents—Great Britain. 2. Liability for sports
accidents-Great Britain. 3. Recreation—Law and legislation—Great Britain.
I. Title.
K.D1994.F852005
344.41'075-dc22
2005017283
ISBN 13: 978-0-7546-4235-0 (hbk)
Contents

Preface vi
List of Abbreviations ix

1 Introduction 1

PART I: PROVIDERS AND PARTICIPANTS

2 Lyme Bay, the Legislation and Licensing 17

3 Learning the Lessons: Schools 41

4 Learning the Lessons: the Voluntary Sector 71

PART II: THE LEGAL PRINCIPLES

5 The All-important Duty of Care 105

6 The Breach of Standards of Care 132

7 Defences 163

PART III: PRACTICAL APPLICATIONS

8 Risk and the Outdoors 189

9 Planning and People 215

10 Facilities, Equipment and Clothing 237

11 Conclusion 253

Table of Cases 263
Select Bibliography 269
Index 273
Preface

This book aims to set out a concise account of the law on outdoor activities. In
particular, it analyses the yardsticks of negligence and statutory liability on which
judgements are made in the courts about teachers, volunteers and leaders.
In recent years, perhaps because of a series of high-profile legal cases, there
has developed what amounts almost to an irrational terror, particularly in staff
rooms, on what the law seeks to do. This has been compounded by the attitude of
some teaching unions; for example, after the inquest in 2002 on two teenagers
who were swept away at Stainforth Beck in the Yorkshire Dales, Nigel de
Gruchy, the General Secretary of the National Association of Schoolmasters
Union of Women Teachers (NASUWT), stated that ‘We have reluctantly
concluded that until society accepts the notion of a genuine accident, it is
advisable for members not to go on school trips’. That remains the policy of his
union. Unfortunately such an attitude imperils the off-site learning of millions of
young people, who lose out on an array of experiences which could do much to
enhance their education and develop their maturity.
Mythologies have burgeoned, which appear to suggest that the legal process
has a malign intent to undermine any prospect of adventure in the outdoors, or
indeed any school trip to undertake field work, or to visit libraries, the theatre,
museums, or even the local park. When the Chief Inspector of Schools, David
Bell, indicated after his Ofsted report in September 2004, Outdoor Education:
Aspects of Good Practice, that teachers had ‘nothing to fear’ if they followed the
right guidelines, he was assailed from all sides. Acerbic comments were made on
‘parasitical lawyers’, ‘a culture of litigation’, ‘professional careers wrecked due
to what many would see as an accident’, ‘paperwork’, ‘medical forms’, ‘risk
assessments’, and the recycling of Mr de Gruchy’s comment that the existing
guidelines are ‘virtually impossible for any normal human being to follow’. Such
statements seem to ascribe a deliberate strategy to the legal process, with a
purpose designed to denigrate the teaching profession and the voluntary
organizations who provide a very high percentage of outdoor activities for young
people, and to make life as difficult as possible for local education authorities and
other providers.
On the contrary, this book will demonstrate that an analysis of the legal cases
shows some very straightforward principles in the law on outdoor activities.
While the criminal law is occasionally invoked for serious wrongdoing, most of
the cases are civil claims for compensation based on common law principles of
tort and on statute. And interestingly, the number of legal claims is going down,
contrary to popular misconception. Although the law may appear on occasions to
be a mysterious process, there has been a rational development of guidelines in
these cases, and it would be helpful if these were more widely known.
Preface vii

In addition, there has been a great deal of research around the world to
establish the precise causes of deaths and injuries in the outdoors. Sadly, very few
of these instances indicate what Mr de Gruchy terms ‘a genuine accident’. What
they usually demonstrate is that organizers failed to follow some well-worn
pathways of ‘good practice’. That is also the basic legal standard that tort law
seeks to support. So it is vital that lessons are learned from those occasions when
matters go wrong in outdoor activities. While the fatalities on school trips hit the
headlines, those in relation to voluntary organizations are not always analysed in
such detail, but they are no less illuminating. Similarly, Britain is not alone in
sustaining injuries and ‘near misses’, nor in developing legal principles in relation
to them, so it is important to look at comparative experience elsewhere.
Perhaps the best-known case on a school trip disaster is that of the deaths of
four teenagers at Lyme Bay in 1993. Its unique features led both to the first
successful prosecution for manslaughter of an activity centre and its owner, and
also to legislation in the Activity Centres (Young Persons Safety) Act 1995.
However, as we shall see, the remit of the Adventure Activities Licensing
Authority (AALA) set up under that Act does not cover many school trips in
Britain; certainly none of them abroad; nor does it deal with most of the activities
of voluntary organizations, either at home or abroad; and there are other quite
significant areas of outdoor activities which are wholly outside the legislation. In
retrospect it would seem that this Act of Parliament was a ‘sledgehammer to
crack a nut’, drawing up tight regulations from a particularly heinous set of
circumstances at Lyme Bay, which now restrict activities which, on the whole,
are well-conducted. Nevertheless it is clear that, outside its narrow legislative
focus, the AALA licensing authority has had an immensely powerful influence on
safety generally in the outdoors in Britain. Not only has the inspection service
done much useful work in researching fatalities and injuries but its publications
are outstanding, so it has been possible for all those engaged in outdoor and
adventurous activities to learn some key lessons. When in response to the latest
tragedy the Government of the day invariably considers drawing up yet more
‘new guidelines’, then a wise response of Parliament and the courts would be to
look at what the AALA and others have already discerned to be appropriate
responses which could forestall harm.
This book is written as a legal analysis, but hopefully it can prove useful for
the general reader, for organizers of outdoor activities, and for those interested in
examining the law in its social and historical context. Part One looks in detail at
providers and participants, analysing the Lyme Bay case which led to the 1995
legislation, and then at the subsequent fatalities in respect of both schools and the
less well-explored area of voluntary youth organizations such as Scouts and
Cadets. Part Two of the book examines the legal principles, and particularly that
central concept of the Duty of Care which governs cases for civil compensation in
the law of tort. Finally, in the third part, there is a drawing together of the law and
its practical application to outdoor activities, with the hope that this will lead to
further research that will prove helpful in preventative measures against what are
clearly risks in the outdoors – but these are by no means risks so overwhelming
viii Outdoor Activities, Negligence and the Law
that they should halt outdoor activities, and certainly not by reason of an
irrational fear of litigation.
I owe a great debt to many people and institutions. I would like to thank my
colleagues and students at the LSE who have provided great assistance and many
useful comments, and in particular: Stuart Andrews; Jesse Elvin; Colleen
Etheridge; Carol Harlow; David Person; Tamara Relis; Bob Simpson; Giorgio
Monti; and Bill Wedderburn. Richard Lewis at Cardiff University has been a
sustaining force over many years. In the world of outdoor activities I would first
like to thank my brother Paul, not only for sharing my first expeditions, but many
others by land and water. In addition the expert input of Graham Bucknell, Sheila
Collins, Ross Faragher, Mark Gittoes, Ray Goodwin, and Jim Raffan has been
extremely helpful. Marcus Bailie kindly read through a draft in advance, and
while he will not necessarily agree with all the judgments, not least on the
AALA, this was invaluable. The library staff of the Institute of Advanced Legal
Studies and the British Library of Political and Economic Science in London
have been very accommodating, as have the staff at the incomparable Harvard
Law School Library on several summer forays. Finally I would like to thank my
wife Mary and our three children, not just for enduring some rugged terrain and
campsites in the pursuit of ‘research’, but for being very supportive throughout.
Any errors that remain are my own.

Julian Fulbrook
London, April 2005
List of Abbreviations

AALA Adventure Activities Licensing Authority
APIL Association of Personal Injury Lawyers
BCU British Canoe Union
CCF Combined Cadet Force
CPR Cardio-pulmonary resuscitation
DfES Department for Education and Skills
DofE The Duke of Edinburgh’s Award scheme
HASPEV Good Practice Guide for Health and Safety of Pupils on
Educational Visits
HSC Health and Safety Commission
HSE Health and Safety Executive
LEA Local Education Authority
MLTUK Mountain Leader Training UK
MoD Ministry of Defence
NASUWT The National Association of Schoolmasters Union of Women
Teachers
Ofsted Office for Standards in Education
RoSPA The Royal Society for the Prevention of Accidents
RYA Royal Yachting Association
UCAS Universities and Colleges Admissions Service
volenti volenti non fit injuria, a legal defence, which translates from
the Latin maxim as ‘No injury is done to one who consents’.