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.
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