article by Libby Purves – The Times July 13, 2004
THE WESTMINSTER village crouches in the "brace" position, awaiting Lord Butler of Brockwell's verdict on intelligence before Iraq ("I thought they'd done that – who is this Lord Button?" asked a voice in the local post office). It is the sort of week when a Private Member's Bill, limping humbly towards its final stage on a Friday afternoon, might get overlooked.
So in the lull before Lord Button strikes, in this season of camping and watersports and hillwalking, let's hear it for the rather misleadingly titled Promotion of Volunteering Bill, from Julian Brazier, MP. He is the Shadow Trade and International Development Minister, but never mind that: it is Mr Brazier the sportsman, sailor, volunteer instructor and former sport-parachutist who has thrown his heart into this. It had its birth after a spirited parliamentary presentation by a ginger group calling itself the Campaign for Adventure, and the problem it takes on is the increasing reluctance to lead, teach and organise sport and adventure.
The tendency to sue for even minor injury is causing insurance premiums to rocket (one rollerskating club had them quadruple within a year). Volunteers – including teachers working after hours – are nervous. Even as the Government decries obese and idle children, some 80,000 potential Guides, Scouts, Cubs and Brownies can't join because there aren't enough leaders. Sports clubs tremble, schools cancel trips. Mr Brazier's Bill is an attempt to redress the balance and move back toward the situation where there has to be "reckless disregard" for safety before a case can succeed.
The Charities Minister, Fiona Mactaggart, has made disobliging comments about the Bill as it staggered through its committee stages, majoring on her belief that fear of litigation is "an urban myth . . . the perception does not match the reality". She has obviously not heard how the Guides were advised to settle out of court, paying £5,000 to the parents of a child who burnt her hand (a bit) while frying sausages; nor the other settlement over the child who slipped on a path. The minister obviously has not heard teachers' unions advising their members against school trips; she is unaware that a yacht skipper who told an experienced crew member to put out an inflatable fender as he came to dock was hauled into court for five days and found guilty of "inadequate supervision" when the man used his foot instead. She may not know of the goalkeeper suing for a sprained ankle because there might have been a little hole in the turf, or the mountain guide who fastened a tie into the rock face hurriedly as a landslip approached. Some months later a judge, sitting in nice warm chambers with a cushion under his bum, ruled that the man on the crumbling rock face had "overrated" the risk.
Of course, trends do get exaggerated into urban myth; but Ms Mactaggart is being complacent. People on the front line really are worried, and insurers are ever more chary. You might argue that a lot of awful cases are out-of-court settlements; and certainly from time to time a robust judge is willing to invoke "volunti non fit injuria" and uphold the principle that accidents do happen. But many don't dare to defend themselves: for case law has created a climate in which the likelihood of a successful suit makes it prudent to settle fast.
Mr Brazier's Bill, very short now that the committees have had a chew at it, provides a simple tool for organisations that use volunteers, from Sea Cadets outings to rugby clubs. If it passes, they may (not must) "present to any person who is to undertake any activity a statement of inherent risk". If they are sued, a court can: "(a) have regard to the statement of inherent risk so as to recognise that certain risks are inherent to activities and that accidents may occur without negligence; (b) take note of the statement of inherent risk in determining whether the person or persons suffering harm had knowingly accepted that there were risks involved; and (c) only uphold any claim for negligence or breach of statutory duty where the volunteer has shown a reckless disregard for safety."
Two questions arise. First, how is this different from the normal disclaimers we all sign? My son, aged 14, casually informed me as he embarked on scuba training that he and I had to sign "a bit of paper to say that I don't mind dying". Simple answer: such documents have absolutely no validity in law. Secondly, why did Mr Brazier confine his Bill to volunteers: why not protect professionals? The answer to that, the MP admits, is that the titles of Private Member' s Bills are important, and so is simplicity. If he had merely called it an "Adventure Risk Management Bill" it would not have got so far. The title "Promotion of Volunteering" meant that the Government could not dismiss it too arrogantly. Excluding professionals also removes a complicated overlap with contract law. But if it does get through, it could provide a template for future measures which would protect them.
You may, by now, be pursing your lips and muttering "Lyme Bay" or "Maria Asumpta", calling up the sad wraiths of cases where stupidity, cheeseparing or bad planning led to tragedy. Relax. the statement of inherent risk does not let idiots off the hook. Recklessness would still be criminal; real negligence recognised in civil courts. Some organisations have got the wrong end of the stick and worried about a snowstorm of paperwork every time they take kids camping. Relax again: Statements are not proposed to become compulsory, and courts would not be allowed to take into account an organisation's not having done one. Nor would they require constant renewal.
Perhaps the thing I like best about them is the notion, in cases involving children, of shared responsibility and the duty of obedience. To return to the Bill, statements would aver: ". . . that the person undertaking the activity shall obey the instructions given by the person who will be involved in providing the activities; (c) that, if the person undertaking the activity is aged less than sixteen, the person's parent or guardian must (i) explain the risks set out in the statement to that person, and (ii) inform that person of the need to obey the person who will be involved in providing the activities."
This is crucial. A school in Suffolk took five gruelling and frightening years to overturn, on appeal, a suit brought by the family of a boy who joined in a ski trip of younger children at his own request, repeatedly ignored teachers' warnings and orders and ended up paralysed. The school won, but only just (one mark of such cases is that the verdicts are so narrowly drawn they do not affect the broader problem). In another case, a kayak race, a volunteer stood on the bank before a narrow stretch, verbally warning every boat not to overtake there. A crew ignored him, overtook, and caused damage. The marshal was successfully sued for inadequate supervision because he should have taken it for granted that they would disobey.
That's the spirit of the age. Nothing can be the fault of the most ill-conducted child or show-off adult. Nobody is really, truly, even temporarily the master of his fate. The State must ensure that everyone – even as they fly through the air or slice through the water in exhilaration – is on a set of invisible baby-reins: the presumption that not much can be expected of them.
Suppose this little Bill passes – and heaven knows, it probably won't, even with all the sports and aero clubs praying for it and big guns from all parties favouring it (Frank Dobson, Kate Hoey, daring hang-glider Lembit Opik). But if it does by some miracle get through, it will be a small blow struck for self-respect and adventure. It is not a perfect Bill: some of the outdoor and volunteer organisations say they approve its spirit but would like a more comprehensive measure. But, oh, get real: there is no sign of the Government taking its eyes off fox-hunting, smoking, smacking and so on for long enough to offer us any such thing. The Brazier Bill is all we have.
Good luck to it. Join the Debate at firstname.lastname@example.org