PI Brief Update

Sports Risks: Duty of Care: Back to Basics - Dr Julian Morris, Parabis Law LLP

14/10/15. It is quite usual to reach for a guide book when heading off to foreign climes or setting out for a country walk but to what extent can a reader hold a guide’s producers legally responsible if something goes wrong while following their directions or advice? This point was tested recently following a sad death of an experienced canoeist.

Mr Wall, a canoe club member and grade 1 coach, was paddling with his daughter on a January day in 2012 on the River Teme. Weather and water conditions at the start of the trip were calm. Part of the journey required navigating Bridgewood weir – a horseshoe weir with its apex upstream and the ends abutting a bridge. Sadly, Mr Wall died while negotiating this section of the river.

As part of his membership of the British Canoe Union (BCU), Mr Wall had access to documents, magazines etc they published. In 2003 the BCU had published a book entitled “English white water – the BCU guidebook” (“the Guide”). It specifically referred to the stretch of water being navigated that morning by Mr Wall and his daughter. Mr Wall’s Estate sought to rely on the Guide as a copy was found in the car which stated “…horseshoe weir which is taken river right”. The Estate also drew attention to two further publications (1995) – the West Midland’s River Guide and Places to Paddle – both of which stated the weir should not be shot under any circumstances because it had a large mushroom stopper which had caused fatalities in the past. In essence, the earlier guides advised portering canoes to avoid the obstacle altogether.

The Defendant’s response drew attention to the general warnings in the Guide, and to Mr Wall’s experience and the necessity for him to have inspected, assessed and judged the relative risks himself. It stated that the Guide was reasonably current with no demonstration that it was untrue, inaccurate or misleading. Given those conclusions they considered there was no breach of duty of care; the Defendant therefore sought a strike out.

The BCU summarised its case in three main points:

• It did not owe Mr Wall a duty of care and in particular not that pleaded in respect of the paddle;

• But, if it did, such duty was discharged by the contents of the guide;

• There was no causative loss.

In relation to the former, the BCU maintained the Estate failed as it was not fair, just and reasonable to impose such a duty, none existed and there was no foreseeability. Further, as its duty was in fact to everyone as the publisher of the Guide, Mr Wall’s indirect membership of the BCU was irrelevant to the claim. It had no control or responsibility over Mr Wall’s actions on the day or on the river involved. If a duty of care were found to exist it would mean that every publisher of every guidebook in the world, on whatever topic, would assume an unlimited legal responsibility for the actions and omissions of anyone who read their guidebook at any time after publication. That responsibility would be unlimited, both in terms of its determinate class of those who might read the book and in terms of time.

The inevitable consequence would be that no author would wish to be exposed to liability for writing on a topic which might result in physical injury and certainly not in those activities and sports which involved any element of uncertainty or risk.

In its conclusion, the Court confirmed that there was no relationship or proximity – Mr Wall was not engaged in a BCU paddle or under its control, supervision or instruction – and neither had it assumed responsibility, in respect of the Guide, for Mr Wall’s safety. As such there would be no duty of care and it would not be fair, just or reasonable to find that such a duty be imposed.

Undertaking sport, particularly those with added risk can be dangerous and often involves an element of uncertainty and risk-taking. Presumably, it is those elements which make that sport and recreation appealing to the individuals who partake in it. To cast liability for any event would clearly be wrong. As Lord Justice May stated in the Trustees of the Portsmouth Youth Activities Committee v Poppleton “adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured.”

Dr Julian Morris
Partner
Parabis Law LLP

Image cc flickr.com/photos/widnr/6538504165