Notes on evolving Risk & Duty of Care judgements based on a presentation by Roy Amlot QC of the Campaign for Adventure.
The Campaign for Adventure was founded three years ago with a mandate to move legal rulings away from US compensation culture and towards promoting more risk awareness and individual responsibility for hazardous actions. Members include peers, MP’s and lawyers and the Duke of Edinburgh is the president, and the prime mover is Julian Brazier the lead MP who engineered the Compensation Act 2006.
The preamble of the Compensation Act 2006 states:
“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.
An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”
This is highly relevant to countryside activities in that the Act is saying that any risk assessment should not lead to a discouragement of a “desirable activity”. Where there is an obvious risk then user should be competent to assess the level of hazard and act accordingly.
The Act has led to some important appeal decisions, and it is understood that this is beginning to be reflected in first instance decisions.
Recent Positive Appeal Decisions following the Act
- 2008. Bouncy Castle. Child suffered head injuries.
Supervision attention diverted = not constant supervision = non compliant.
Decision reversed on appeal. Judgement of unreasonably high level of standard of care which was impracticable to provide. - 2008. Bouldering. Litigant injured jumping from 16ft high wall – attempted to jump to a beam = tetraplegic.
First instance decision 25% responsibility by climber. Safety matting insufficient. No assessment of skill of climber.
Reversed on appeal because of inherent risk had been accepted by climber. - 2007. Diving. 17 yr old in Corfu dived into shallow end of swimming pool = tetraplegic.
Decision: Should have prominent no diving & depth signs.
Reversed on appeal. No duty to warn of obvious risk – able bodied person capable of assessing risk. - Richmond Park Diving. 18 yr old dived into lake (prohibited) and broke his neck.
City of London initially absolved on level of care, but reversed on appeal. Subsequently the Law Lords led by Lord Hoffman stated user undertook risk, and no duty of care arises where such a decision is freely taken.
Implications
Any reversal of the trend towards US style compensation culture has to be welcomed by landowners, providers and users, as fear of litigation has been detrimental to the provision of many outdoor recreation activities such as mountainbiking on privately owned land.
Currently mountain biking in the UK is largely restricted to the byway and bridleway network, some towpath and railtrail provision, and Forestry Commission trails. Only a handful of major private woodland sites offer mountainbiking, including Drumlanrig (Buccleugh Estate, Dumfries), Llandegla (Tilhill, Wrexham), Swinley (Crown Estate, Bracknell), and two smaller sites Trallwym (Builth Wells) and Penshurst Woods (Tonbridge).
It is hoped that this reversal of the compensation trend will further reduce concerns over the potential for claims.
Other Relevant References
Sheffield Hallam University interviewed landowners and reviewed court cases to see how concerned landowners were about liability from recreational accidents, and whether perceptions matched reality. The conclusion was that countryside recreation liability is not a significant problem.
The main findings of this report were:
- The level of liability was low.
- Courts consistently refuse to support claims for recreation injuries.
The number of claims made in the last decade have slightly reduced.
Judges and policy makers keen to promote:- personal responsibility
- avoidance of a risk adverse climate
- reduced growth in compensation culture
- Privacy and management control are actually the major landowner desires.
There is little evidence that larger landowners such as FC & NT misjudge potential level of liability or discourage recreation primarily through liability fears. This may not be true of smaller landowners with less experience of recreation and who may therefore be more risk adverse.
How People React on Offroad Routes. Countryside Agency 2001. Ref: CRN32
Cyclists, pedestrians and equestrians were interviewed about their experiences with other users. It was found that “conflict was very infrequent” and that “their perceptions of conflict were much higher than actually experienced”.
How People React on Offroad Routes. Phase ll. Countryside Agency 2003. Ref: CRN69
This research found that “conflict is a rare occurrence”, and that “route owners/managers should be developing within user groups a culture of thoughtful and tolerant use”.
Colin Palmer
CTC
October 2009
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