The liberty of the individual to engage in dangerous but otherwise harmless pastimes

Tomlinson vs. Congleton

House of Lords Appeal (2003) UKHL47

Lord Hobhouse: "It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the environment by the remainder of society of the liberties and amenities to which they are entitled."

In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen that should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless,  at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen."
 

‘Volenti Non Fit Injura’ -one knowing the risks one willingly takes the risks

1. Serious or fatal accidents involving mechanically propelled vehicles in leisure activities call in to question, has someone been negligent? Or, was the accident caused by an act of God? (An accident unrelated to human intervention).

2. In challenging activities, experience shows us that in the vast majority of cases, accidents have a single cause; for example a participant or competitor making an error of judgment, losing control and crashing.

The nature of most activities is to be challenging and therefore stimulating i.e. very near or on the limit of losing control!

Although organisers may put in place every ‘reasonable’ safety procedures to cover this eventuality it is not always possible to cover ‘unforeseen’ and unavoidable incidents that may result in serious or fatal injuries.

3. Auto activity’s stimulation for the human animal is the fear of the repercussions of going beyond the limit, balanced with the exhilaration of the skill of going nearer to the limit, in skill or speed, than all the others who have gone before, or are taking part at the same time in the activity.

Deep in the psyche of the human being is the need to be recognised as the best hunter-gatherer in the tribe, thereby taking back the trophy for their family. This is very stimulating and exhilarating for the participants and elevates them out of an otherwise bland 21st century existence. Those who participate, spectate and support people in challenging situations using mechanically propelled vehicles should all understand the risks verses the enhanced enjoyment factor: The legal precedent is ‘Volenti Non Fit Injura’ (one knowing the risks one willingly takes the risks) Brooklands vs. Hall 1933 1KB205.

4. All organisers should ensure that: -

a) The participants and spectators are aware of the risks. (Harrison vs. Vincent RTR8(CA)
b) There is no criminal disregard for the participants’ and spectators’ safety. (Wooldridge vs. Sumner 1963 2QB43).

There are now substantial Health & Safety manuals on procedures and ‘good practice’ that cover or overlap into event organisation.

5. UK Health & Safety Law mandates that no person involved with a work-related activity should knowingly be placed in a dangerous situation. Successful prosecutions may result in substantial fines or a custodial sentence. To blatantly breach laid down procedures could amount to criminal disregard.

6. Public opinion dictates that those responsible for safety, including volunteer club members, can no longer remain outside the scope of the HSE and police enquiries in high profile cases, no matter which organisation or what venue is involved.

The critical path analysis for off highway auto event activity organisers: -

i) Is there a clearly identifiable formal organisation or individual ultimately responsible? I.e. a recognised Club with a constitution, a Limited Company, a Partnership or Sole Trader? If not any person or persons deemed responsible might be charged.

ii). Is there a legal and binding agreement between the landowner or his leaseholder and the organising entity? I.e. an interest in land contract. If such an agreement does not exist then the landowner may be solely or jointly liable for actions he permitted on his land.

iii). Was the event being run under an authorisation permit issued by a Department of Transport recognised authorising Governing Body? If not a participant may be charged under the Road Traffic Acts. Organisers may also be charged under the laws of complicity this carries the potential of massive fines, community service orders or up to 6 years’ imprisonment.

iv) Was the event being run under nationally recognised operational rules and regulations?
Ref: DOT Guidelines HGU9227

v). Were the organisers, marshals and staff qualified and suitably experienced? Do they hold appropriate certificates of competence? If not, organisers may be held to have been incompetent.

7. The critical path analysis after fatal or serious accident.

a) Organisers must inform a police officer. The police officer may then take over as the Coroner’s Agent or suggest that the organisers appoint their own suitable person, possibly a JP or solicitor. They will receive and record all documents, statements and reports applicable to the accident and when requested provide these to the Coroner or the courts.

b) Immediately collect as many witness names as possible (use the public address system to ensure that no witness leaves the event without leaving their name with an official). Record if the witness has photo or video evidence to collect later. (25 – 50 witness statements are not unusual).

c) Photograph or commission photography of the accident site. Take photographs from as many angles as possible.

d) Measure and record all facts, marks, impacts and all details leading up to the accident.

e) Impound and inspect (without altering) any vehicles involved. Collect written reports from an appropriate scrutineer or release the vehicle to the police vehicle inspectorate.

f) Collect written report forms from the senior medics engaged at the venue.

g) Complete a HSE RIDDOR form within 24 hours.

h) Inform the insurers of the event.

i) Inform the appropriate Governing/Authorising Body.

j) Collect endorsements from senior competitors or experts on the course condition and suitability. Record any prior criticism received of the course suitability and any changes introduced as a result.

k) Ensure the security of the participating individuals’ signing on forms (the participants’ contracts) and make copies for the Governing/Authorising Body.

8. Whilst following the basic procedures listed in this document it is the policy of the IOPD to provide authorised event organisers with a set of guidelines that are simple, practical and easy to follow. Each event can be unique and in it, every situation can be multifaceted. The IOPD relies largely upon a common sense and practical approach by experienced and knowledgeable officials following basic systems of good practice.