Evidence submitted by All Party Group
on Adventure and Recreation in Society (A RISc)
On behalf of the All Party Group on Adventure
and Recreation in Society (A RISc), I am writing to say how much
I welcome your committee's enquiry into the "Compensation
Culture". I also enclose this submission, made by officers
of the A RISc APG, with some disturbing examples of court cases
that, in our opinion, should never have been brought. They illustrate
that whether or not a wider compensation culture exists, a number
of very bad decisions in the Courts are causing great harm to
the sport and adventure sector in the UK. I hope this submission
will be of use to you and your committee in its deliberations.
Tensions exist in sport and adventure training
with respect to the inherent risks that are associated with these
aspirations. If these tensions are not resolved then the good
work of hundreds of thousands of volunteers will be progressively
undermined. Such a failure would have a profound impact on young
people and our wider communities across the UK.
Thus we welcome this opportunity to explain
our conviction that the compensation culture is not a myth and
that changes in the law are needed to prevent the slow strangulation
of risk taking and adventure in sport and recreation.
Adventure training and recreation groups have
already gone well beyond the sensible process of establishing
good safety procedures. They have abolished whole areas of activity
and many have withdrawn from providing opportunities for young
people to take responsibility. To take just two examples, many
Sea Cadets no longer sail on the sea and the second biggest teaching
union has advised teachers not to participate in school trips.
Yet instructors continue to lose cases, as the courts have repeatedly
produced unfair findings of negligence, especially where young
people have been allowed to take responsibility for themselves
and suffered or caused accidents. The six attached cases are a
small sample of those brought to our attention.
Today 80,000 youngsters are on waiting lists
for the Scouts and Guides alone. Statistical evidence that fear
of litigation is the top barrier to volunteering comes from the
much-quoted CCPR survey. The Scouts and Guides make the point,
however that it is not just about rising insurance premia, dire
as those are; a scoutmaster who is accused by lawyers in court
of being incompetent is very unlikely to return to scouting even
if he wins.
We believe that the problem is the repeated
failure of the courts to recognise the inherent risk in giving
people the opportunity for adventure and taking responsibility.
The steady growth in insurance premia and large numbers of out
of court payments often simply reflect genuine appraisals by legal
advisers of the attitudes of the courts in recent years, rather
than their pandering to urban myths.
A "safety first" culture in other
areas of life is possible, at the price of extra cost and time.
In adventure and sport, however, elements of risk are essential,
if young people are to learn to take responsibility; risk helps
us to learn our limitations and build confidence in our abilities.
Experiences from hillwalking to rugby develop character, teaching
leadership and teamwork. For children and young people such experiences
are particularly important.
THE SOLUTION
If we are to encourage volunteering in the sport,
adventure and recreational sectors and provide children, young
people and adults with worthwhile experiences, we must raise the
burden of proof and re-establish the legal principle of "reckless
disregard" in this sector. Several American states have done
this for sport and adventure training, by statute. In effect,
it means that a higher burden of proof is needed to establish
negligence. There is also a case for making a parallel change
in the (criminal) health and safety laws, to recognise the special
position of sport, adventure training and recreation. By doing
this the courts would be forced to recognise that certain activities
carry certain risks and that accidents—even, rarely, fatal
accidents—can happen without contributory negligence by
instructors.
It is important that those participating in
adventure and sport accept a level of responsibility for their
own safety and have this recognised by law. Of course, whilst
the law may recognise these factors it is also important that
Judiciary have an adequate knowledge of the inherent dangers of
adventure sport and the risks they are supposed to pass judgment
upon. To that end the Judicial Studies Board should incorporate
teaching about risks and responsibility in adventure training
context into their curriculum for those judges likely to handle
such cases.
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