Introduction

When four teenagers on a school trip at a Lyme Bay activity centre died in 1993, it sparked a major public debate on the safety of outdoor pursuits. This kayaking tragedy led to a custodial sentence for the owner on manslaughter charges, to the passing of a private member’s bill which became the Activity Centres (Young Persons Safety) Act 1995, and to a raised awareness of safety issues for schools and activity organizations. But has the balance swung too far? Is there now an aversion to risk, and the threat of legal culpability, which has become counter-productive? Are we in danger of being ‘over-lawyered’ in the outdoors? Are we losing sight of the considerable advantages that adventurous activities can give to participants, and in particular to the development of young people? And what of the much vaunted ‘compensation culture’; is it myth or reality? And even if it is merely a mythical perception, what effect, if any, does this have on outdoor activities? Criminal charges In the decade since November 1994, when the Lyme Bay defendants, OLL Ltd and Peter Kite, its managing director, were convicted of manslaughter, there have inevitably been other tragedies leading to the courts. Lyme Bay is unique because it was the first immediate custodial sentence for a company director on a corporate manslaughter charge.1 One important point in the Lyme Bay case was that it was possible to pinpoint a ‘directing mind’ in such a small company, whereas in a large business, as with the Zeebrugge disaster in 1987, when 188 people died after the capsize of the ferry Herald of Free Enterprise, criminal charges failed because no individual senior personnel were found to be sufficiently at fault. Private prosecutions were also brought after 51 people died on the Marchioness when this pleasure cruiser on the Thames sank in 1989, and after the explosion of the offshore oilrig Piper Alpha which killed 167 people in 1988; but in both cases these failed for lack of evidence. When the trawler Pescado sank in 1991 with the loss of all six crew, the managing agent Joseph O’Connor was acquitted of manslaughter, but was found guilty of gross negligence and was sentenced to three

1 The co-directors of a Lancashire plastics factory were prosecuted after a worker had died falling into a machine in 1988, which was the first work-related manslaughter charge. Norman Holt received a suspended sentence of 12 months’ imprisonment. In addition he, his brother

years’ imprisonment. It can therefore be seen that manslaughter charges are both complicated to bring and very difficult to succeed with. A very important and unique instance of a teacher being imprisoned, following a school trip, was the case in 2003 of Paul Ellis, who was sentenced to 12 months after Max Palmer, aged ten, drowned in Glenridding Beck while engaged in ‘pool plunging’. Mr Ellis, who was head of geography at Fleetwood High School, pleaded guilty to a charge of manslaughter, admitting that his conduct had fallen so far short of a reasonable standard of care that it amounted to ‘gross negligence’. Morland J at Manchester Crown Court stated that he had initially considered passing a three year prison sentence, as the teacher had in his view been ‘unbelievably foolhardy and negligent’, but accepted factors in mitigation.2 Mr Ellis was a member of Britain’s second largest teaching union, the NASUWT, who for several years have urged their members not to lead or participate in school trips. The union refused to comment after the sentence on Mr Ellis, but the general secretary of another union, David Hart of the National Association of Head Teachers, noted that this case ‘demonstrates all too clearly the very vulnerable position teachers are in if they act recklessly and without due regard for the safety of pupils in their care’.3 The current general secretary of the NASUWT, Chris Keates, told the House of Commons select committee on education in 2005 that her members ‘faced spurious legal action from parents unable to accept that there was such a thing as a genuine accident’ and that there was a ‘huge fear of litigation in schools’.4 The NASUWT claim to have supported twenty members in legal action relating to school trips in the last three years, although only Mr Ellis faced criminal proceedings. This is in the context of a Government estimate that there are around 7 million outdoor school visits each year, although this is probably rather narrowly defined; even so there must be thousands of school trips each week.5 However, any attempt to make Mr Ellis into a martyr seem doomed to failure; the subsequent Health and Safety Executive’s report on Glenridding Beck in 2005 is absolutely damning and the case is clearly an aberration on the normal conduct of school trips. Dr Stephen Garsed, the HSE inspector, concluded that the two main causes of the tragedy were ‘the inappropriate actions of the leader’ and weaknesses in school management which allowed an ‘unsuitable leader to be in charge of a party of schoolchildren in a high-hazard environment’. His investigation showed that the teacher had lied about his leadership qualifications; he failed to make the most basic inquiries about whether the children in his care could swim; he took his group to the hills and to jump into Glenridding Beck with no protective clothing such as wetsuits, waterproofs or buoyancy aids; he allowed the children to ‘plunge’ when the water temperature was just 8 degrees, the stream was ‘raging’ after heavy rain, and when he had been starkly warned by teachers in another school group that

2 ‘Teacher is jailed over boy’s trip death’, Yorkshire Post (23 September 2003). 3 Ibid. 4 ‘Outdoors is great: just about the safest place a child could be is on a school trip’, The Guardian (15 March 2005).