Risk and the Outdoors

Risk and the Outdoors Is anything risk free? The literature and the legal cases on outdoor activities demonstrate that injuries can occur in so many ways, sometimes even in a bizarre combination of freakish circumstances. But are there any common themes which could allow preventative steps to be taken? And in particular what should the ‘reasonable person’, or in many instances the reasonable teacher or reasonable expedition leader, do to avert harm? The answer is assuredly that there are appropriate steps to take, because lessons have been learned. Perhaps the most obvious is that travelling to the activity is invariably much more dangerous than the organized activity itself. All forms of transport, and particularly the use of minibuses, can be considerably more hazardous than many outdoor activities. At the outset therefore of most outdoor activities, providers, schools and voluntary organizations will be judged on whether they are exhibiting ‘reasonableness’ on routine matters such as road fund tax, insurance, appropriate level of driver certification, seat restraints, roadworthiness, adequate rest for drivers and appropriate routes. We have seen in the cases the dire consequences of doing otherwise. These standard issues in transport liability are therefore a vital prerequisite. Indeed some of the lessons of the transport cases transfer across to motorized sport vehicles when used off-road, or on snow or on water. Following the death of a jet-skier in 2003, after a collision between two such specialist boats on a Club lake near Ripon (Jet Ski is a Kawasaki trade mark of a ‘personal watercraft’ capable of speeds up to 80mph), a coroner indicated that this had resulted in a ‘blunt-force impact normally associated with road crash victims’.1 Risk assessment Myths abound on the actual dangers to be encountered in outdoor activities, so it is important to unravel the cases and look in detail at their factual circumstances. The fundamental approach in the modern era has been to make a risk assessment. This is a process which can be very informal, or can be formalized, often in writing, and at some levels can become very technical, often unnecessarily so.2 As a basic tool of guarding against hazards, risk assessment has had a lengthy history across many fields, in such varied areas as medicine, insurance and

1 ‘Jet-skier killed after accident on club’s lake’, Northern Echo (4 September 2003). 2 See David Wright and John Copas, Chapter Two on ‘Prediction Scores for Risk

finance, but gathered impetus after the Health and Safety at Work etc Act 1974, when it entered common parlance. Although that Act principally concerns the workplace, the ‘Five Steps’ approach of the Health and Safety Executive has been widely adopted in outdoor activities, as in so many other walks of life: ‘a risk assessment is nothing more than a careful examination of what, in your work, could cause harm to people, so that you can weigh up whether you have taken enough precautions or should do more to prevent harm’.3 Under section 3 of HSWA 1974, there are provisions to protect individuals who may be ‘affected’ by work activities, even though they are not employees of the business or undertaking concerned. Crucially, this encompasses visitors to premises, including members of the public and their children, but it also takes in under the principle of vicarious liability anyone affected by an employee’s actions.4 As a legal requirement, the aim of a risk assessment is ‘to make sure that no one gets hurt or becomes ill … accidents and ill health can ruin lives’.5 Step One is hazard identification. The HSE leaflet lists some common possibilities, starting with the ubiquitous ‘slipping and tripping’, and a requirement to ‘pay particular attention to visitors’ (‘they may be vulnerable’). Step Two is to identify individuals at risk, and the HSE again notes that in considering ‘who might be harmed, and how – Don’t forget: young workers … who may be a particular risk’.6 Step Three is to consider the likelihood and severity of the risk, and whether precautions are adequate. In legal terms this third step is to engage with fundamental concepts such as ‘foreseeability’ and ‘probability’. What more could ‘reasonably’ be done to reduce the risk? For example, when kayaking on the open sea, as at Lyme Bay, a straightforward assessment of the hazard of drowning (Step One) would indicate danger to all participants (Step Two), and the probability of it occurring in the prevailing conditions of March 1993, with so few precautions taken, as extremely high (Step Three). Step Four is to write down and itemize control measures. For example, the pre-eminent risk of drowning in novice kayaking is initially ‘high risk’, until itemizing the standard precautions to show the risk would be ‘adequately controlled’: a suitable location for first-timers on a pond, small lake or slow flowing river; supervision by appropriately qualified instructors; a standard swimming test well in advance of the activity to sort out any non-swimmers needing particular attention and to give some water confidence; and a mandatory wearing of an approved buoyancy aid. The risk of drowning then actually becomes very low. Such preventative measures long predate formal risk assessment, and can often be portrayed as ‘common sense’. But these ‘controls’ are securely grounded in kayaking experience and are backed up by solid research. For example, in Canada, where canoeing and kayaking are national pastimes, about two-thirds of drowning victims were not wearing a ‘personal flotation device’, according to research from the Lifesaving Society of

3 HSE, Five Steps to Risk Assessment (Sheffield: HSE Publications, latest version, 2004) 2. 4 See generally DfES Guidance Health And Safety: Responsibilities And Powers (Organization & Management DfES/0803/2001, 2001).