Conclusion

Conclusion As we have seen, repeatedly after death or injury in outdoor activities, a suggestion has been made that this was merely an ‘accident’. Unfortunately, rather closer analysis shows that these are very rarely events without a cause. Almost invariably there will have been multiple reasons for such a catastrophe, and just as in road ‘accidents’ the principal causes will usually be human error. The tort of negligence has never demanded absolute liability on perpetrators of harm, but in personal injury cases the courts insist that individuals do not behave ‘negligently’. There are various euphemisms for what this means in practice – such as ‘fault’ or ‘carelessness’ or ‘blameworthiness’ – but the critical standard to bring a legal action is that conduct must be shown to have breached a duty of care. There is now a growing list of legal precedents to demonstrate what this means in relation to outdoor activities in Britain and in comparable common law jurisdictions. In addition to these legal cases, the essential principles on breach of a duty of care are well established in related fields. Contrary to mythology, they are also relatively straightforward. Tort law may be a ‘forensic lottery’,1 but that has more to do with procedure, the vagaries of legal assistance, and with esoteric points of causation in medical cases, rather than with the substantive law in a relatively straightforward area linked to well-established tort topics such as roads, premises and workplace liability. The essential requirement of the law on outdoor activities can be summarized as the requirement to be a ‘reasonably prudent’ teacher, volunteer or leader of trips and expeditions. This does not mean becoming a paragon of virtue who is faultless on every occasion, but it does mean observing ‘common standards’. Such standards will inevitably change with research and experience which develop knowledge and understanding of safety issues, and the ‘reasonable person’ will always want to update their skills by training, reading the literature, and practice. The essential tool to show ‘reasonableness’ is the concept of risk assessment. It probably always was the major consideration, although such an attitude was often referred to as ‘just plain common sense’. In an informal process this type of analysis is a natural development of an unconscious search for safety by considering hazards, risks, and preventative measures to combat harm. In a bowdlerized and pejorative form, this essential theme has become ‘risk assessment paperwork’, in mountainous form, where it can get out of all proportion to the activity involved. No doubt to some hard-pressed teachers, chafing at the amount of other paperwork they need to deal with, risk assessment

can seem an insuperable obstacle to any and all trips and outings. Fortunately a great deal of excellent information is now readily available to teachers, and also to providers and voluntary leaders, so this seemingly Herculean task can be more easily surmounted by looking at the documents provided by the DfES, by voluntary organizations, and notably by the AALA. Increasingly too these very sensible guidelines are freely available for downloading. However, the important legal point to note is that although the courts will always prefer an evidential ‘papertrail’ which documents a ‘reasonably prudent’ approach to an outdoor activity, the critical requirement is the right approach and not the right paperwork. The documentation is important because of centuries of experience in trial courts of the sometimes great difficulty with witnesses who in oral testimony may have trouble remembering quite what they thought before, during or immediately after an occurrence. The supremacy of a written document over hazy recollection, sometimes many months or years after an event, therefore leads inevitably to Step Four of the HSE Five Steps procedure, which is to write down preventative measures against perceived hazards. This is in pursuit of the lawyer’s principal maxim ‘Get it in writing’. Not only is such documentation a useful defence in resisting any legal claims, but it acts as a vital prophylactic checklist to prevent injuries arising in the first place. Where safety considerations are paramount, as with the pre-flight procedure of air pilots in the cockpit, then such a procedure is an ordered method of accomplishing an important task. A similar process of planning ought to become ‘common practice’ in outdoor activities too. Just as with any driver on the road, there is the remote possibility of criminal culpability for teachers, providers and volunteers. Indeed, on the road, liability commences at the standard of negligence, with the charge of ‘driving without due care and attention’. With outdoor activities it commences at the higher level of ‘recklessness’ or ‘gross negligence’ for the manslaughter charge, about which there seems to exist currently an almost unreasoning terror among some teachers, volunteers and leaders. In the overall context of millions of school visits and outdoor activities led by volunteers and providers this charge of manslaughter is exceedingly unlikely, as the negligence displayed must be shown to be ‘gross’. As we have seen, such a criminal charge is uncommon and exceptional, and in any event needs proof at the higher evidential level in criminal trials, where the burden on the prosecution is to demonstrate their allegations ‘beyond a reasonable doubt’. Manslaughter therefore requires irresponsible conduct well above the ordinary standards of negligence. A cursory glance at these rare criminal cases shows that only extreme culpability will produce a successful prosecution: the multiple-layered irresponsibility with young lives of Lyme Bay in 1993 which Ognall J described as a ‘complete failure to heed … [the warning] given in chillingly clear terms of the risk you were running’ or as at Glenridding Beck in 2002 which Morland J described as a party leader who was ‘unbelievably foolhardy’. None of the most elementary precautions were taken in these cases, and on a series of ‘checklist issues’ established by experience over the years on

In other cases where there have been manslaughter charges, merciful juries, perhaps mindful of the extreme difficulty in finding the volunteers who provide the backbone of most outdoor activity organizations in Britain, have acquitted defendants who had clearly been negligent, but whose incompetence or disobedience of their organizations’ own rules had perhaps not quite attained ‘gross negligence’. The classic example in a voluntary organization is the acquittal of Peter Finlay, who by his own admission had ‘done no planning for the trip’ and was in breach of Scout mountain rules when Jonathan Attwell fell to his death from Snowdon in 1999. If the Scout Association in their subsequent inquiry characterized some of their leaders and instructors as displaying a ‘cavalier’ attitude to safety in the outdoors, then a comparable description of some of the Army training of young people appears on occasions to exhibit the very worst ‘gung ho’ attitude possible. As we have seen, crown immunity draws a discreet veil across some of these worst excesses, although the 2004 manslaughter charges against Matthew Doubtfire lifted the veil sufficiently to show that there had been 16 such drownings in the past seven years. Mr Doubtfire was of course acquitted when a jury failed to agree, but the Army had to admit that Kevin Sharman was a ‘known non-swimmer’ who was taken into perhaps the most dangerous resurgence pool in the country. That case is particularly noteworthy because the HSE had also gained the very unusual Crown Censure against the Army following a special private hearing relating to Kevin Sharman’s death, and although details are very difficult to obtain of this procedure, censures were also issued against the Army after the deaths of teenagers Clare Shore in 1998 and Wayne Richards in 2005. The concept known to lawyers as ‘accidents of litigation’ has to be assessed too; undoubtedly the worst Scouting case was the death of Lee Craddock falling 360 feet to his death in the dark in the caving systems near Gaping Ghyll. The simple reason for manslaughter charges not being preferred in that case was that the party leader died shortly afterwards; certainly the evidence in the later civil case against the Scout Association appeared to show levels of recklessness and ‘loss of control’ by him which would have clearly supported such a charge, although the facts on which this would have been based were vigorously disputed and might not have held up in a criminal trial. In respect of Army training, were it not for the fact of immunity, then there are clearly several cases at this level of culpability, as demonstrated in the Crown Censure cases and other matters which were very close to being put through that cumbersome and secretive process. Indeed, proposals in some sort of ‘Promotion of Volunteering’ Bill to give the same sort of blanket immunity from prosecution to all volunteers, and similar suggestions for teachers, would seem very questionable in the light of this Army record, and would certainly prove counter-productive if it engendered any feeling of teachers and volunteers being above the law. Opinions are necessarily going to vary on disputed facts, and the Crown Prosecution Service will very properly take a wide view of the circumstances of every fatality or injury: theirs is a discretion to exercise and they may decide not

would have been that knowledge of the rock/water interface was still developing and the party leader had fallen ill, leading other teachers to take over in difficult circumstances, but this was of course a very controversial decision and the level of the fine against Leeds City Council at £30,000 was a significant sum. However, all of these criminal cases are exceptional. Although it is always important to analyse the ‘worst case scenarios’, because that is where significant lessons can be learned for all outdoor activities, it is clear that the vast majority of legal cases will not be criminal prosecutions but will be civil claims for compensation on the basis of the negligence standard. However, here too it seems that paranoia may be setting in amongst teachers, volunteers and leaders. Such an attitude is possibly enhanced by the irrational perspectives of some of the teaching unions and commentators. For example, Eamonn O’Kane, then the general secretary of the NASUWT, in reiterating that union’s boycott of school trips in 2004, made the dubious statement that ‘in an increasingly litigious society which no longer appears to accept the concept of a genuine accident, our first responsibility must be to protect our members’ interests’. While understandable that a union would inevitably be expected to represent its members, it is debatable that the proposition of ‘an increasingly litigious society’ can be maintained when tort claims are falling, and the concept of ‘a genuine accident’ in the light of the legal cases and outdoors experience generally is not in accord with reality. Sadly, as we have seen, in the vast majority of these matters there are invariably the same patterns, and these are causative features, often of human error, which are not random ‘accidents’. It would also seem unfortunate that the NASUWT lose sight of the principal aim of educating children, as that objective is certainly damaged by this union’s stance. Mr O’Kane went on to indicate that ‘in recent high-profile cases teachers have been heavily penalized. Some have lost their jobs as a result of alleged misjudgments’.2 While it is of concern if anyone suffers an injustice, it would certainly appear from some of these ‘high-profile’ legal cases where NASUWT members have been sued as parties in tort cases, that negligence was very clearly established. The first NASUWT case appears to go back to Land’s End in 1985, where an inquiry found that the Headteacher ‘failed to plan the trip adequately, failed to organize sufficient supervision and failed to act when he saw the children in danger’. Recent NASUWT cases complained about involved the deaths of Gemma Carter, Max Palmer and Bunmi Shagaya. All three fatalities led to a consideration of criminal charges: a successful appeal in France against conviction on negligent homicide by Mark Duckworth, a guilty plea to manslaughter by Paul Ellis, and criminal investigations still pending against four teachers in the last matter. It would legally be rather difficult to argue on the facts in those cases that at the lower standard of simple negligence there was not a prima facie case on tort liability in each of these matters: the most basic supervisory rule of them all, head counts, was adjudged to be a factor in the deaths of Gemma Carter and Bunmi Shagaya, and Max Palmer’s death was

described by a High Court judge as ‘inexcusable’ and indeed led to a guilty plea by the accused. In a tort action it is of course routinely a school or local education authority which will be held vicariously liable for the actions of teachers, although there might well be consequences for that teacher in their employment. However, a serious assessment of the legal cases, just a tiny handful in an ocean of successful school trips, can hardly justify the sort of comment by an NASUWT health and safety expert, writing in a personal capacity, who suggests that:

the fact of the matter is that when something like this happens there has to be a scapegoat and in ALL cases it is ALWAYS the teacher who takes the blame. No matter how careful you are it is impossible to make a risk assessment of every factor. When something goes pear shaped, and with the benefit of hindsight, it becomes very easy to point the finger. My personal advice to all members is to completely BOYCOTT ALL SCHOOL TRIPS – and I’m not just referring here to fancy high wire expeditions, I mean outings to the churchyard in pursuit of local history, to the park, farm visits etc.3