House of Commons portcullis
House of Commons
Session 2003 - 04
Publications on the internet
Standing Committee Debates
Promotion of Volunteering Bill

Promotion of Volunteering Bill

Column Number: 99

Standing Committee C

Wednesday 19 May 2004


[Mr. David Amess in the Chair]

Promotion of Volunteering Bill

Clause 2

Statements of Inherent Risk

Amendment proposed [this day]: No. 49, in clause 2, page 2, line 47, leave out subsection (4).—[Fiona Mactaggart.]

2.30 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 51, in clause 2, page 3, line 2, after 'duty' insert

    'in respect of the participation by a person in an activity to which the Statement related'.

No. 7, in clause 2, page 3, leave out line 12 and insert

    'the volunteer has shown a reckless disregard for safety.'.

No. 8, in clause 2, page 3, line 12, at end insert—

    '(4A) A court shall not take the absence of a Statement of Inherent Risk into account in deciding whether a volunteer is negligent.'.

Mr. Julian Brazier (Canterbury) (Con): I wanted briefly to describe to the Committee a few current cases, details of which were sent to me by the insurance adviser to the Central Council of Physical Recreation, to show that there is a real problem.

A football referee is being sued because the local park pitch had a small hole in it and a goalie fell into it. That is a real case. It has been reported in The Sun. All the cases that I am citing have had to be disguised, for obvious reasons, although in the first the person concerned was willing to go on the record. A member of a walking group took part in a trip with about 15 friends, one of whom was injured. The person who originally organised the group was sued on the ground that he was the de facto group leader, simply because he was the most qualified person there. The trip took place in Wales in the summer of 2000. The individual is an active charity worker and the walk was raising money for charity. The case continues.

Mr. Andy Reed (Loughborough) (Lab/Co-op): I wonder, following this morning's debate about the statement of inherent risk, whether the hon. Gentleman agrees that people who had got together as a group of friends might not have signed a statement of inherent risk, so that they would not be covered under the Bill. Can he think of anything else that could be done to enable groups of that sort to be covered? They are vital as well.

Column Number: 100

Mr. Brazier: The hon. Gentleman has made a good point, but as they were fundraisers I think that there is a strong chance that they would be covered. For example, there is a very nice charity—I shall not mention its name as it has not given me permission to do so—that fundraises on a large scale for a medical cause. Its representatives wrote to ask whether I could do various things, which would have been way outside the scope of the Bill. When I replied explaining what we are doing, the charity replied: ''That's terrific, because people who fundraise for us often take part in the sort of activities for which we could use certificates.'' I do not know which charity the man in question was raising money for, but I hope that once it becomes known that the statements of inherent risk are available, their use will become standard practice for those who want to provide protection.

I shall not detain the Committee by reading my entire list of cases, but I shall give one more example. A dance instructor was sued when a member of the dance club slipped on a highly polished floor. The incident took place in spring 2000 at a club in west Yorkshire. The floor had been treated to reduce the likelihood of a slip, but a reasonably shiny surface is necessary for dancing. The case continues.

I do not want to bang on, because we have been round and round the buoys on this issue, but my point is that whereas in other areas of activity, including other parts of the voluntary sector, it has been possible to drive down the risk of litigation by the simple factor of driving out risk altogether, we do not want to be reduced to that in this context. We do not want sport, adventure training and many forms of recreation to become risk free. We need those forms of activity to involve people to a degree in taking responsibility for their risks. The Bill is, crucially, about that.

Judy Mallaber (Amber Valley) (Lab): Does the hon. Gentleman take the view that the removal of clause 2(4) will mean that it will not be possible for the statement of inherent risk to be considered in a court of law, or that it will not be relevant in a court of law? I am not a lawyer and I genuinely do not know the answer.

Mr. Brazier: Removing the subsection would leave us with a piece of paper much like many of the pieces of paper already produced by, for example, scout troops that take children to camp; there would be no guidance to the courts on how to treat it. In my view and that of the legal adviser who helped me to draft the Bill, that would completely emasculate it.

The Minister has again made much of the Hoffman case. The right hon. Member for Holborn and St. Pancras (Mr. Dobson) explained clearly that even the sort of advice that is available through his Inns of Court, the Corporation of London and so on proved that it was of little value to his local swimming club. I cannot emphasise enough just how narrowly drawn the judgment is. I read it again during the lunch break—there is a thorough brief on it in the Library and it was widely reported in the newspapers. It concerns a guy who swam illegally at a site, having climbed over a fence put in place to stop people

Column Number: 101

swimming illegally there and plastered with signs saying ''Danger: No Swimming''. Yet he was able to bring a successful negligence suit at every lower court. The case had to go all the way to the top to be overturned. The idea that that case will somehow provide comfort for people organising swimming, yachting, canoeing or any of the other sports that we have considered is too optimistic.

Turning to my amendments, let me explain why, after taking legal advice, I suggest moving from the ''manifestly unreasonable'' standard to the ''reckless disregard'' standard. When we drafted the Bill, despite having the help of two experienced lawyers— Michael Harbottle, who had worked on a previous charities Bill, and Roy Amlot QC—no obvious form of words suggested itself. We needed a new standard, and we used the words ''manifestly unreasonable'' as a way of trying to achieve that.

I am now extremely indebted to a legal academic, Peter Charlish, a specialist in the area, for suggesting that instead of ''manifestly unreasonable'' we use the expression ''reckless disregard''. He cites a 1962 Court of Appeal ruling, Woodridge v. Sumner and another. I shall not quote the many pages of the ruling; basically, it stated that a photographer who was kicked at a horse race was unable successfully to sustain a negligence suit that had come all the way to the Court of Appeal because, in the circumstances, it was reasonable that the Court should expect a higher standard of negligence than would apply in an ordinary commercial arrangement. It was a sporting event, there were horses around and it would have been necessary to prove reckless disregard.

By a happy accident, over the past generation or so our common law jurisdiction-sharing cousins in America, whom we think of as the most litigious people on earth, have, in many of their states, adopted the reckless disregard standard for sport and adventure training. Their cases cannot be used as precedent in British courts but they can be used for persuasive purposes—people can consult them. There is a lot of case law, as well as the one pivotal case that I mentioned, about the idea that ''reckless disregard'' amounts to something more than ordinary contributory negligence.

My amendment No. 8 addresses a concern that has been mentioned by Committee members—the hon. Member for Loughborough (Mr. Reed) is nodding; he was one of them—and by outside organisations. That is that people might fear that if they did not produce a certificate of inherent risk when they were bee-keeping or making cakes they might find themselves disadvantaged in a court case. I am told that in theory the wording is redundant, but it is no bad thing to include it in order to make it clear that no court can take—

Judy Mallaber: Will the hon. Gentleman give examples of what the ''reckless disregard'' wording would cover, which the current wording would not? My right hon. Friend the Member for Holborn and St. Pancras talked about retracting the concept of

Column Number: 102

negligence a little. However, the wording that the hon. Gentleman suggests seems to raise the stakes in terms of the negligence that might or might not be allowed, and I am not comfortable with it.

Mr. Brazier: It is an intermediate standard. The only case in British law is Woodridge v. Sumner and another. The Committee might find it burdensome if I read out the full brief, so I shall give a flavour of it, as it was an example of a case that succeeded on the negligence standard in the lower courts. The Appeal Court, however, held it not to meet the higher standard. It quoted volenti non fit injuria, which the right hon. Member for Holborn and St. Pancras mentioned, and then said that it should apply the higher standard in such a case. The summarising paragraph of its judgment reads:

    ''An experienced horseman, while taking part in a competition for heavyweight hunters at a horse show, galloped his horse so fast round a corner of the arena that it took a wide sweep to the edge of the course. After completing the turn the horseman got the horse almost straight onto its course, but the horse then became temporarily out of control and plunged some 20 or 30 yards down a line of shrubs bordering the arena to a point where the plaintiff, a photographer, was standing by a bench in line with the shrubs. The plaintiff, who had no experience of horses, took fright at the oncoming horse, and, in attempting to save a lady sitting on the bench from danger, stepped or fell back into the path of the horse and was knocked down and seriously injured. In an action for damages for personal injuries, the trial judge found that the horseman had ridden his horse too fast round the corner of the arena and that his endeavours to bring his horse back into the arena when he knew or ought to have known that it would be dangerous to persons in the place where the plaintiff was, constituted negligence. He awarded the plaintiff damages''.

The Court of Appeal's view was as follows:

    ''A person attending a game or competition took the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act might involve an error of judgment or lapse of skill, unless the participant's conduct was such as to evince a reckless disregard of the spectator's safety''.

That is one example. There is always a risk of error of judgment in adventure training and certain types of sport. If we are to apply to them the same standard of negligence that we would apply in the rest of life, the only solution is to try to squeeze them out or to make them absolutely safe—a solution at which the Minister has constantly hinted. If we do so, young people will find other ways of amusing themselves.


House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2004
Prepared 19 May 2004