Time for a bit of self-promotion. I edited a book Leading Cases in Sports Law, just released by Springer as part of the Asser International Sports Law Series. Click here for access to a preview of the table of contents and individual chapters.

The idea of the book was to bring together a collection of key cases in sports law accounting for both the historical development of the topic and critical, contemporary issues in sports law.  The collection includes case law from numerous jurisdictions across the common and civil law traditions and includes leading awards at the Court of Arbitration for Sport, which individually have contributed to the robustness of modern sports law. It is written by over 20 leading sports law academics and practitioners drawn from over a dozen jurisdictions worldwide. Although organised thematically, the individual submissions provide careful and in-depth analysis of each case, outlining its factual background, isolating its key principles and placing it in its wider context.

The book has already received its first review in the periodical Global Sports Law and Taxation Reports, wherein Professor Ian Blackshaw commented “…this is a very useful and informative Book and well worth the price of €137.14. As such, it is one that should certainly be on the shelves of any self-respecting sports lawyer!”

Haven’t done anything for a while here but was watching the highlights of a hurling match at the weekend when a fairly sickening challenge occurred which led to a player being concussed.

That tackle prompted this blog.

Please note that a version of this blog was published as “Cost of concussion can no longer be taken lightly” The Sunday Independent, Dublin, 28 April 2012. The blog can also be read in conjunction with an excellent article by Tom English “Rugby concussion rule causes alarm” Scotland on Sunday, 31 March 2012.

During last Sunday’s Allianz National Hurling League Division 1 semi-final, Galway’s Fergal Moore was concussed as a result of a violent collision with an opponent. The coming together was fierce but fair. Thanks to his helmet and prompt medical attention, including a spinal board stretcher, Moore will make a speedy recovery.

A concussed player having to be assisted from the field of play – such as the unfortunate Ulster and Ireland rugby centre Luke Marshall, who was concussed recently in successive Six Nations matches against France and Italy and again in Ulster’s quarter final exit from the Heineken Cup – is one of the most worrying sights in any contact sport.

It is also one that might have serious legal implications.

Unlike Moore and Marshall, a Colorado High School student, Rhett Ridolfi, was not so lucky when, in 2008, he suffered severe and chronic brain injury during American football practice. Ridolfi was injured early on in a coaching session and despite complaining of severe dizziness, Ridolfi’s coaches and other school staff asked him to continue with tackle drills.

Ridolfi’s mother, acting on behalf of her paralysed son, subsequently sued the coaches and staff for negligence. The family also sued Riddell, one of America’s leading helmet manufacturers, on product liability grounds and mainly for certain design defects in the helmet but also for inadequate warnings on the dangers of concussion even when playing with a helmet.

This month, a Colorado jury found the school staff liable. The jury also held that, although there were no design defects in the product, the helmet manufacturers had not adequately warned users of its equipment on the continuing risk of concussion.

$11.5million was awarded in damages – the high figure due to the fact that Ridolfi needs constant medical care. Riddell must pay about a one-quarter share of the damages. The bulk of the compensation balance must be met by the school staff, though as government employees, they will not be personally liable.

The case has attracted significant attention in the US and mainly because the country’s biggest professional sport, the NFL, is facing a lawsuit from more than 4,000 retired players and spouses who are claiming that the NFL knew for decades about the chronic health risks associated with cumulative concussions in the sport but failed to warn its players or take preventative steps.

Riddell has also been named as a defendant in the law suit which is expected to be heard as a class action in a federal court in Pennsylvania in the summer.

Testimony from retired NFL players has revealed stories of chronic headaches, Alzheimer-like forgetfulness, altered personalities and sometimes a downward spiral into depression, violence and suicide. The most shocking incident, said at the time to be linked to cumulative concussive injuries, occurred in December 2012 when Kansas City Chiefs’ linebacker, Jovan Belcher, shot his girlfriend, then drove to his home stadium and subsequently committed suicide in front of his coach and general manager.

Research is focussing on whether repeated brain trauma of the kind suffered by football players is leaving them with a condition called chronic traumatic encephalopathy (CTE). In 2012, a study published in the journal of the American Academy of Neurology included nearly 3,500 former NFL players. The researchers determined that professional football players were three times more likely to die as a result of certain neurodegenerative diseases than the general population.

Concerns about concussion are not confined to the NFL. Closer to home, when rugby player John Fogarty announced his retirement from Leinster in November 2010, he gave an extraordinary interview to a national newspaper recounting his experience of a career throughout which he suffered what he called “repeated bangs”. Concussion, he said, equated to an occupational hazard for the modern rugby player.

His assertions were supported with the publication of the autobiography of fellow Leinster player Bernard Jackman. The book revealed the largely self-inflicted pressures on professionals to play while injured or even soon after a concussion.

Jackman’s view appeared validated by a 2010 survey of the then 150-strong Irish Rugby Union Players Association. Just over 40% of those surveyed admitted to having been pressurised to play while injured.

The revelations in Ireland were reinforced by All Blacks Conrad Smith and Richie McCaw, who, again in 2010, admitted to “playing concussed” at least one or twice a season.

So what is the reaction of leading sports governing bodies to the recorded medical risks and accompanying legal vulnerabilities arising from concussion?

Two points are noteworthy.

First, the NFL, as with rugby league in Australia, which has also faced concerns about a recent rise in incidents of concussion, is considering implementing rule changes such as the banning of helmet or shoulder-leading charges.

Second, many American sports, as with rugby union, have pointed to the implementation of sophisticated player concussion protocols and including versions of the “brain bin” where a player, suspected of such an injury, is retired for 10 minutes from a game for independent medical assessment.

If that player is proven to have been concussed then a mandatory rest period, typically three weeks, follows. The selection of Luke Marshall by Ulster and Ireland, for instance, adhered to IRB concussion protocols.

And yet justifiable concerns remain.

At the professional level, the pressure on a contracted player not to lose their place through injury, especially during an important phase in the season, must be intense. Equally, coaching staff are under intense, short term pressure to win. Cumulatively, these stresses might be brought to bear on a team’s medical staff, who as a match swirls around them, are faced with a player pleading to play on and a coach screaming down a radio mic for an update.

The rugby analogy which shows the danger is the infamous Bloodgate incident involving Harlequins where, in effect, a player, as well as a doctor and a physio, were bullied by a demanding coach into feigning an injury for tactical reasons.

Admittedly, the above is rare and independent assessment of players, which is central to most concussion protocols, avoids such conflicts of interest.

More worrying is the problem at amateur level in contact sport. The problem there is not the improper reporting of concussion but no reporting at all. In 2010, a research paper presented at a Royal College of Surgeons/Physicians of Ireland conference, noted that in a survey of 133 under-20 year old Irish club rugby players, nearly half reported sustaining at least one concussion during a playing season but that 44 per cent of them had not sought subsequent medical assessment and about one-quarter of those surveyed admitted that they had continued to play while knowing that they were concussed.

This underreporting needs to be addressed.

Finally, personal injuries cases such as the Ridolfi case should not be dismissed as yet more evidence of the overly litigious nature of American society. The Ridolfi family are in a tiny minority who have succeeded in obtaining damages. The courts in the US have found that both equipment and coaching standards in American football are generally reasonable. As long as these standards remain fit for purpose, then not every accident leading to injury on the football field should give rise to compensation.

And yet, accidents can also be prevented.

Better a properly fitted helmet than a CT scan; and better mandatory rest policies for concussed players than writs for compensation to pay for a lifetime of medical bills.

Sources

Ken Belson, “Judge Rules Against Football Helmet Manufacturer”, The New York Times, 14 April 2013.

Ken Belson, “NFL Doctor Says Disease is Overstated” The New York Times, 27 March 2013.

John Fogarty, “It affects every facet of your life. It takes from you. I’m a different person when this is bad”, The Sunday Independent, Dublin, 17 November 2010.

E Lehman et al, Neurodegenerative causes of death among retired National Football League players” 79(19) Neurology 1970–1974, 6 Nov 2012.

Gerry Thornley, IRUPA Survey: Drop in Standard of Care Striking” The Irish Times, 8 Jan 2011.

He’s fessed up at last but what are the legal implications arising out of Armstrong’s confession on Oprah. Put simply, they are hard to predict. There are a lot of experts out there saying that he will be pursued by former sponsors etc but without actually seeing the contracts in question and their moral clauses (if any!), this is just speculation. Other charges (perjury) or civil suits in defamation etc  may be defeated by statutes of limitation, as complicated by cross-jurisdictional issues and the difficulties in actually securing damages (the Sunday Times case). Landis’ whistleblower proceedings under US federal law will also be difficult to sustain,  and will no doubt be lengthy and complex – aggravated by the fact that it is a fairly unprecedented use of the statute in question.

One interesting and understated vulnerability for Armstrong – and this is speculation on my part – may be his charitable foundation (Liestrong, sorry, Livestrong or whatever it is called) and fraud/deception charges here, possibly from donors but also from tax authorities given the tax breaks given to charities. This could be called the Al Capone effect, whereby he is not done on the obvious charges but something indirect.  

In some ways the best thing for the sport would be not to get distracted by Armstrong’s spin on Oprah nor the legal claims of sponsors (many of whom at the time queued up to be linked with Armstrong).  More important will be full cooperation with the UCI IC’s truth and reconciliation commission, which hopefully will now take place.  Truth and reconciliation commissions, and associated matters such as amnesties, due process concerns etc, are difficult to calibrate properly. Nevertheless, there is a lot of experience that can be drawn from elsewhere and the general guiding principle is the three C principle – causes, context and consequences. Why did he do it? How did he get away with it for so long? Who helped him? What impact did this have on others at the time? What can be learned by the sport in the future to prevent this occurring again?

Armstrong said that his career was one big lie. He didn’t sustain that lie – that conspiracy – on his own. His crimes (using the word in a sporting context) were not, as Cooke so eloquently showed, victimless.  It is and will be unpalatable for many to sit and watch Armstrong “cooperate” and many will continue to doubt his version of “the truth” but if done properly a truth and reconciliation commission would, I think,  ultimately be cathartic for the sport and would achieve much more in the round than an adversarial court room hearing on a specific aspect of law – be it fraud, defamation, perjury etc.

From now we know that Armstrong was right when he wrote, all those years ago, that it was not, just, about the bike.

I recently attended a conference organised by Interpol on match-fixing in sport. The background to the conference is that in May 2011, Interpol entered into a 10-year initiative with FIFA to develop and implement a global training, education and prevention programme with a focus on regular and irregular betting as well as match-fixing. To achieve its objectives, and on receipt of substantial funding from FIFA, Interpol launched a dedicated “Integrity in Sport” unit to develop and implement the training which will, in turn, be the basis for the creation of a training wing within the Interpol Global Complex for Innovation in Singapore. See further here.

The conference was attended by a number of academics with expertise in the area, though I must admit that the most impressive speaker was former footballer Simone Farina.

Simone Farina played professionally for a number of football clubs in Italy’s lower divisions. In the autumn of 2011, Farina was offered €200,000 to help influence a match between his then club, Gubbio, and Cesena in the Coppa Italia. He refused the bribe, reported the matter to the Italian police and his evidence has been central to the latest match-fixing scandal in Italy – one that has led to the arrest of about 30 people so far.

Farina’s information has also led Interpol to focus on a number of Singaporean businessmen who they believe can be implicated in the scandal.  

Farina spoke eloquently at the conference on his motivation for acting as a whistleblower and for which Sepp Blatter  - no sniggering please – has appointed him a FIFA Ambassador for Fair Play.

The most interesting part of Farina’s talk was however the huge personal cost associated with his actions. He was released by Gubbio and could not find employment in 2012 at another Italian club. He has subsequently been appointed as a community coach at Aston Villa. The clear implication from his speech was that he feels that he has been shunned and boycotted by Italian football, as a consequence of his actions.

And thus while the academics at the conference, me included, spoke theoretically and long windedly about gambling-led corruption in sport etc; Farina’s simple and straightforward message about “doing the right thing” was an old-fashioned but truly inspirational moment.

Normally, I am not one for the role model argument when it comes to sports stars and normally I see Charles Barkley’s point – “I’m not a role model… Just because I dunk a basketball doesn’t mean I should raise your kids” –  but on hearing Farina, there is no doubt that he is not just a sporting role model but a role model in any walk of life. Put simply, while the rest of us talk about integrity in sport; he epitomizes it.  

Happy Christmas!

A guest blog today from Professor Ian Blackshaw!!!

ECJ CASE NOTE

THE EUROPEAN COURT OF JUSTICE HANDS DOWN AN IMPORTANT PRELIMINARY RULING ON THE EUROPEAN UNION DATABASE DIRECTIVE

BY PROFESSOR IAN BLACKSHAW

Introduction

On 1 March, 2012, the European Court of Justice (ECJ) handed down an important preliminary ruling on the meaning and effect of the European Union (EU) Database Directive of 1996 (96/9/EC) (Directive) on the legal protection of sports databases. This ruling has generally gone unnoticed, perhaps because it deals with an esoteric and sophisticated aspect of Copyright Law, which, in any case, is a highly technical subject.

The ECJ ruling was in response to a preliminary reference under Article 267 of the TFEU from the English Court of Appeal in the case of Football Dataco Ltd et al v. Yahoo UK Ltd et al (Case C-604/10-ECJ). The full Judgement of the Third Chamber of the ECJ can be accessed at http://curia.europa.eu/juris/document.

This case concerns English and Scottish Football League Fixture Lists, in which the plaintiffs claim they own copyright under the provisions of Article 3 of the Directive, whereas the defendants (all seven of them) claimed that such copyright does not exist in Law and, therefore, they are entitled to use these Lists for the purposes of their business without having to take a Licence from the plaintiffs and pay any corresponding royalties.

Article 3(1) of the Directive provides as follows:

“In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.”

For the purposes of the Directive, Article 1(2) defines a database as follows:

 “…. a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”

Case C-604/10-ECJ

At first instance, the English High Court held that such copyright did exist in the plaintiffs’ database on the facts of this particular case, whereas, on appeal, the English Court of Appeal was not so sure and, therefore, referred the matter to the ECJ for a preliminary ruling on the following questions that arose to be determined in the case:

(1)   Whether the intellectual effort and skill of creating data should be excluded in connection with the application of art 3(1) Directive 96/9/EC; Whether the “selection or arrangement” of the contents, within the meaning of that provision, includes adding important significance to a pre-existing item of data, and; Whether the notion of “author’s own intellectual creation” within the meaning of that provision requires more than significant labour and skill from the author and, if so, what that additional requirement is.

(2)   Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by article 3(1) Directive 96/9/EC?

In answer to the first question, the ECJ drew a distinction between originality in the structure of the database and originality of its contents (the data), holding that the former qualified for copyright protection, whilst the latter did not. This is in line with the general principle that, for copyright protection to exist in a literary, dramatic, musical or artistic ‘work’, there must be originality. In Ladbroke (Football) Ltd v. William Hill (Football) Ltd ([1964] 1 WLR 273), the Court held that the word ‘original’ requires that the ‘work’ “should not be copied but should originate from the author.” In other words, to claim copyright protection, an author must show that he has used his own skill and judgement to produce the ‘work’ in which copyright protection is claimed (Interlego AG v. Tyco Industries Inc [1998] RPC 343).

Also, the ECJ held that the resources deployed for the purpose of determining the time and identity of teams corresponding to each fixture of the leagues related to the creation of the data in question and were of no relevance in assessing eligibility for copyright protection in the database, in which the protection resides in the selection and arrangement of the data giving the database its structure. Accordingly, the intellectual effort and skill in creating the data were not relevant in determining eligibility for copyright protection. The notion of an author’s intellectual creation refers to the criterion of originality which is satisfied when, through the selection or arrangement of the data contained in a database, its author expresses his or her creative ability in an original manner by making free and creative choices and thus “stamps his personal touch” (para. 38 of the ECJ judgement). On the other hand, this criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom (para. 39, ibid.).

Furthermore, no criteria other than that of originality can be applied in order to determine

the eligibility of a database for the copyright protection provided by the Directive (para. 40, ibid). Thus, provided that the selection or arrangement of data is an original expression of creativity by the author, it is irrelevant whether or not the selection or arrangement includes “adding important significance” to that data (para.41, ibid.).On the other hand, the fact that the setting up of the database required significant labour and skill of its author cannot as such justify copyright protection of it under the Directive, if that labour and skill does not express any originality in the selection or arrangement of that data (para. 42, ibid.). It is for the Court making the reference – in the present case, the English Court of Appeal – to determine whether the football fixture lists satisfy the above-mentioned criteria for copyright protection.

As regards the second question, the ECJ was of the opinion (see paras. 47-52, ibid.) that the Directive, according to its recitals 1-4, aims to remove the differences which existed between national legislation on the legal protection of databases, particularly regarding the scope and conditions of copyright protection which adversely affected the functioning of the internal market, the free movement of goods or services within the EU and the development of an information market therein. In that context, and as provided in recital 60, the Directive carries out a “harmonization of the criteria for determining whether a database is to be protected by copyright”. Accordingly, subject only to the transitional provision of Article 14(2), the Directive precludes national legislation which grants databases, as defined in Article 1(2) of the Directive, copyright protection under conditions which are different from that of originality as laid down in Article 3(1) of the Directive.

Conclusion

The ECJ has clarified that significant labour and skill exercised in setting up a databasedoes not per se ground a claim for copyright protection of it unless there is originality in the selection or arrangement of the data contained in the database.

This is an important ruling for sports bodies and others that wish to protect legally and commercialise their databases, in which much time, effort and money has been invested, and thereby provide themselves with another useful marketing tool and stream of income to promote and popularise their sports.

Prof Dr Ian Blackshaw is an International Sports Lawyer; an Honorary Fellow of the TMC Asser International Sports Law Centre; Visiting Professor at several UK, Continental Europe and South African Universities; Member of the CAS and also the WIPO Arbitration & Mediation Center; and may be contacted by e-mail at ‘ian.blackshaw@orange.fr’.

I thought that two points were of interest on the Armstrong affair. First, the idea the sponsors etc might seek the return of bonuses from Armstrong; and second, who, if anyone, should be awarded the Tours now stripped from Armstrong.

Sponsors: we want our money back

The issue of wanting bonuses etc back is interesting but it sounds much easier in theory than in practice. Sports lawyer Mark Gay was very good on the subject on BBC Radio 4 Today’s programme on Tuesday 23 October and the below distils (i.e., plagiarises) his comments.

A sponsor who entered into a contract with Armstrong back at his “peak” might face difficulties in terms of statute of limitations (typically six years in contract disputes though there might be a possibility that you could get around this by claiming fraud on Armstrong’s part but legal fraud as opposed to sporting fraud would be very difficult to prove – the WADA codes as has a time bar and with Armstrong it would mean investigations could only begin around 2004). Other difficulties include the fact that at the time, in the 2000s, that various sponsors/companies paid to sponsor and invest in a multiple Tour de France winner and, bluntly, that is what they got in the sense that that is what many of us believed at the time i.e., they got their money’s/consideration’s worth. A retrospective claim based on what we now know for this sponsorship/investment would be difficult to sustain. Moreover, they would be various (costly and lengthy) jurisdictional issues in pursuing Armstrong. Finally, as with all of these things you have to follow the money. The various sponsorships, prizewinning etc “earned” by Armstrong were likely paid into management/agency accounts and are very unlikely to be held by Armstrong personally. Again, very difficult to locate/get this money.

Sponsors who currently sponsor Armstrong may have the best chance if the contract contains a morality clause.

Overall, Armstrong is likely to face litigation that will drain his resources but how effective that will be in the end is difficult to predict.

The Tour de France: we want our titles back

In its reasoned decision the USADA thinks that Tour titles should not be given to other riders who finished on the podium, such was the level of doping during Armstrong’s era. The USASA said 20 of the 21 riders on the podium in the Tour from 1999 through 2005 have been “directly tied to likely doping through admissions, sanctions, public investigations” or other means and of the 45 riders on the podium between 1996 and 2010, 36 were by cyclists “similarly tainted by doping”.

Lawyers will have great fun (and accumulate large fees) determining the phrase “similarly tainted”. If you apply the USADA’s approach strictly, then in one year you’d have to go down to the 10th place finisher to find a “winner” of Le Tour.

The NY Times is less exacting than USADA but still it has said that since 1998, more than a third of the top finishers of the Tour de France have admitted to using performance-enhancing drugs in their careers or have been officially linked to doping – see here.

Legal technicalities aside, one of the better quotes on cycling during the Armstrong era is from a former Armstrong rival Filippo Simeoni of Italy who told The Associated Press that the succession issue was “a good question. That entire decade was one big bluff.” See further here.

Overall, not sure what to make of it but having read David Millar’s book recently, the last few months’ events were inevitable.

The suggestion that there should be an amnesty/truth commission for cycling might have some merit – something strongly cathartic without the adversarial elements of a court/arbitration hearing probably needs to be done.

If anyone in the UCI or Wada is reading this – very doubtful – please note that I am available to act as a truth commissioner!!!

Did a gig with Paul O’Connell, Ireland rugby international, on violence in sport. See below a newspaper report.

O’Connell foresees legal action over incidents

JOHNNY WATTERSON

Sat, Oct 06, 2012

VIOLENCE IN SPORTS AND THE LAW: IRELAND AND Munster secondrow Paul O’Connell has said although he does not believe there is a problem with violence in sport, the conditioning and weight training undertaken by professional rugby players could lead to situations where they could be injured more easily.

“Generally in sport a few punches might be thrown over various incidents and it’s generally not a problem because guys don’t do damage,” said O’Connell. “But now with training and weights guys are becoming more and more powerful and someday someone’s going to do damage with a punch and the law may have to be involved.”

O’Connell made his observation when he appeared in University of Limerick with Law Professor Jack Anderson from Queen’s University Belfast in an open discussion on violence and aggression in sport as part of the Contemporary Understanding of Emotions in Society. The conversation examined the role and impact of violence and aggression in sport from the perspective of a player and the role that law might or might not play.

“The appeal of contact sports for spectators and players alike lies in the controlled aggression and physicality of the playing field,” said Prof Anderson. “When a player oversteps the mark, the tendency has been for the players to sort it out themselves on the field with the mantra being ‘what happens on the field stays on the field’. And yet no area of society, not even sport can operate outside the law. Players must be aware that acting in violent manner which is clearly outside the rules and spirit of the game, may make them liable to legal action and even criminal liability,” he said. “An assault is an assault whether it occurs on the street, in the family home or on the sports field.”

Nearly every week, players, referees or managers, who through their actions or words, go beyond the boundaries of what a sport will allow, although, few players have been prosecuted outside the laws governing their particular sport.

Last year it was reported Everton striker Victor Anichebe settled out of court with Newcastle after instigating legal action over a tackle from Kevin Nolan that left him sidelined for 11 months, while Rangers footballer Duncan Ferguson also served time in prison for a head butt on Raith Rovers’ John McStay and served a sentence at Scotland’s notorious Barlinnie prison in 1995.

On July 2008 Joey Barton was given a four-month suspended sentence after admitting assault occasioning actual bodily harm on former team-mate Ousmane Dabo during a Manchester City training ground dispute.

A rugby player was jailed this year for breaking an opponent’s jaw. Jack Weston, a number eight for Keynsham RFC, twice punched Ben Staunton of Oldfield Old Boys when the amateur sides met in a local derby in November last year. During a melee, witnesses described how Weston ran into the mix and punched Mr Staunton twice. Mr Staunton described the first blow as six out of 10 and the second 10 out 10. The punches landed Weston a red card, followed by six months in prison.

© 2012 The Irish Times

 This week’s post is very short, mainly because I am preparing for a gig with Ireland rugby legend (and fellow ginger) Paul O’Connell. The “gig” is a seminar organised by the University of Limerick’s Research Cluster in Emotions in Society, which will discuss the topic of violence and aggression in sport. The seminar (the organisers are describing it as a conversation)  will take place on Wednesday 3rd October at 4pm at the University of Limerick. All welcome!!!

 The conversation will examine the role and impact of violence and aggression in sport (PO’C) from the perspective of a player and the role that law might or might not play in its understanding and management (me).

The above aside, I want to take the opportunity to congratulate my colleague at the law school at Queen’s, Professor Phil Scraton, for his magnificent, unrelenting and powerful work as part of the Hillsborough Independent Panel.

 Phil posted a few comments to a number of us in the immediate aftermath of the publication of the Panel’s report and I copy them below.

Professor Phil Scraton, Fri 14/09/2012 10:36

On Wednesday 12 September I had the privilege, along with fellow Panel member Dr Bill Kirkup, of addressing the hundreds of bereaved family members gathered at the Anglican Cathedral to be the first people to hear the findings and receive the 400 page Report of the Hillsborough Independent Panel. The media was excluded and this two hour presentation followed over two years research and analysis of nearly half a million documents revealed to the Panel by 85 organisations and individuals. A main task of the Panel was to demonstrate how the disclosed documents ‘add to public understanding’ of the disaster, its context and consequences. The presentation lasted almost two hours and the reception we received was overwhelming and humbling.

Here are two quotes from the presentation:

‘It is evident from the documents disclosed to the Panel that the safety of the crowd admitted to the terrace was compromised at every level: access to the turnstiles from the public highway; the condition and adequacy of the turnstiles; the management of the crowd by the SYP and the SWFC stewards; alterations to the terrace, particularly the construction of pens; the condition and placement of crush barriers; access to the central pens via a tunnel descending at a 1 in 6 gradient; emergency egress from the pens via small gates in the perimeter fence; lack of precise monitoring of crowd capacity within the pens. These deficiencies were well-known and further overcrowding problems at the turnstiles in 1987 and on the terrace in 1988 were additional indications of the inherent dangers to crowd safety. The risks were known and the crush in 1989 was foreseeable.’

‘The Panel found no evidence among the vast number of disclosed documents and many hours of video material to verify the serious allegations of exceptional levels of drunkenness, ticketlessness or violence among Liverpool fans. There was no evidence that fans had conspired to arrive late at the stadium and force entry and no evidence that they stole from the dead and dying. Documents show that fans became frustrated by the inadequate response to the unfolding tragedy. The vast majority of fans assisted in rescuing and evacuating the injured and the dead.’

The final slide read:

IN MEMORY OF THE 96 MEN, WOMEN AND CHILDREN WHO DIED AT HILLSBOROUGH

and to

THE BEREAVED, THE SURVIVORS, THE RESCUERS AND THOSE WHO HAVE DIED PREMATURELY DUE TO THEIR LOSS AND TRAUMA

The work of the Panel has been challenging throughout. Last summer the Panel’s independence was called into question and on 24 August I released a comment on the Panel’s collective position:

‘The Panel is not a gatekeeper. Our role is not to determine what is or is not published, our responsibility is full public disclosure. Our role is not to filter information but to secure access to documents that otherwise would have been restricted for years to come. We are engaged in an unprecedented process and our priorities are the families, the survivors and the broader public interest.’

I truly hope that our substantial Report, and all that is now flowing from it, demonstrates that our priorities remained steadfast.

Thank you so much to all families and survivors and those with an unwavering commitment to supporting those who still endure the consequences of the trauma of 15 April 1989. And a personal thanks to my close family and friends who have supported me through this period. Whatever our struggles they pale when considered in the context of bereavement and survival.

Phil

‘Freedom is always and exclusively freedom for those who think differently’ Rosa Luxemburg

Professor Phil Scraton PhD

Institute of Criminology and Criminal Justice

School of Law

Queen’s University

28 University Square

Belfast BT7 1NN

The GB wheelchair rugby team finished a very credible fifth at the London Paralymics.

The team was mixed and included Kylie Grimes. In 2006, an 18-year-old Grimes sustained serious injuries, leaving her paralysed from the chest down, when she dived into a swimming pool at the home of a friend. Her subsequent claim gives an interesting insight into the courts’ perspective on sports-related risk: Grimes v Hawkins [2011] EWHC 2006.

At the time of the incident, Grimes was 18 years old.  She was healthy, athletic and a keen sportswoman and was both a very competent horsewoman and an accomplished swimmer.  As a result of the injuries she sustained, she is tetraplegic.  The trial judge noted (at para 2) that the impact on her life of the events of that night had been “catastrophic” but that she remained an impressive and courageous young woman who “conducted herself with great dignity throughout the trial”.

Grimes’ case was twofold: the defendant was in breach of his duty to her under section 2(1) of the Occupiers Liability Act 1957; the defendant either by himself or through his daughter, Katie Hawkins, was in breach of a common law duty of care to the claimant.

Facts

On the night of the 4^th/5^th August 2006, the defendant and his wife were away for the night, as was their older daughter.  They left their younger daughter (then 18), at home.  At the time of the incident, Grimes was friendly with Hawkins.  They were not close but knew each other through the college they both attended.   On the evening of 4th August they were both at a local pub, as were a number of other young men and women of about the same age, most of whom had been students at the college.  Grimes said she had only drunk 3 or 4 small glasses of wine and that she was not drunk.  The trial judge accepted her evidence on this point (para 16).

Although there was some dispute over it, the trial judge found that the claimant was invited as a guest to a party of about 20 young people who arrived at the defendant’s house from about midnight.  The house was a large one and had a heated, indoor pool with an unmarked deep and shallow end. On the night in question, Miss Hawkins provided swimwear so that people (including the claimant) could go swimming and the judge found that Hawkins  not tell anyone not to dive into the pool.

A number of people began jumping or “bombing” into the pool from both sides.  The claimant jumped into the pool by the steps at the shallow end.  She said she was in the pool for about half an hour, mostly swimming around, sometimes chatting with friends, standing in the shallow end.  She knew where the deep end was, though it appears that she did not go near that end of the pool because that was where people were “bombing” at that time (paras 29-30).

The claimant then dived in. Grimes recalled that she dived diagonally towards the deep end, assuming it would be safe to do so.  Further, she executed a shallow racing dive.  Catastrophically, she almost immediately collided with the bottom of the pool. The trial judge held that Grimes had in fact dived in diagonally from a point nearer to the edge of the pool at the shallow end than the edge of the pool at the deep end and, although the claimant intended to execute a shallow racing dive, the dive was in fact steeper than Grimes intended (paras 42 and 43).  An ambulance duly arrived.  The claimant was transferred onto a stretcher and taken to hospital.

In cross examination (the following directly quotes paras 48 and 49) the claimant accepted that she knew it was dangerous to dive into shallow water but denied that she had done so.  She knew, she said, that it was dangerous to dive where the water depth was unknown.  The obvious danger, as she recognised, was the risk of hitting her head.   She did not need to be told that, she had known it for years.  She was a very competent swimmer with a number of qualifications.  She knew how to dive.  She also replied that she would have expected to be warned of any hidden dangers in the pool, and she would have heeded any such warnings.  She said if Katie Hawkins had told her not dive she would not have done so. 

Expert evidence was provided to the court (paras 50-62) which noted that that there are no regulations in respect of private swimming pools in the jurisdiction, though there are some national standards which apply, generally, to public and commercial pools and including recommendations for warning notices and for advice notices setting out safe diving techniques, together with depth markings. The experts noted that some private swimming pools have depth markings and “no diving” notices but that most of the many thousands of such pools have neither.  Further, one of the experts observed that she would not expect such notices since in the domestic, private context given that guests could be verbally warned of any unexpected dangers.   This expert witness did not accept however that there were any dangers which required warnings in this case. Both experts agreed (para 63) “that the general guidance from all bodies that issue any advice upon swimming pool safety is that the consumption of alcohol in connection with the use of swimming pools is not recommended…Common sense would in any case suggest that alcohol consumption affects judgement and the appreciation of risk”.

The Law

The claim was brought both under the Occupiers’ Liability Act 1957 and in common law negligence.  The court held, conventionally in such instances, that the breaches alleged were common to the duty under the 1957 Act and at common law.  The defendant, Miss Hawkins’ father, admitted (para 66) that he was the occupier and that the claimant was a visitor within the meaning of the 1957 Act and thus he “owed a duty to the claimant to take such care as in all the circumstances of the case was reasonable to see that the claimant was reasonably safe in using the premises for the purposes for which she was invited or permitted by the occupier to be there”. The trial judge was satisfied that in the circumstances, the defendant’s common duty of care owed to the claimant included while she was using the swimming pool, a purpose which included diving.

The claimant contended that the pool was not safe for diving for a number of reasons including (a) that the risk of an accident occurring with such a group in the pool in such circumstances was serious and obvious, and the consequences of a pool accident, especially a diving accident, could be catastrophic; and (b) that there were no oral or written warnings or indications that diving was unsafe in any part of the pool, or of the depth contour of the pool; and that it would have been easy to instruct users of the pool that night that diving was unsafe, and/or to forbid the guests from diving; or to lock up the pool house to prevent any access to the pool.

The claimant further submitted that the defence of willing acceptance of risk under section 2(5) of the 1957 Act was not of application on the ground that the claimant had assumed that it was safe to dive in because she had seen so many others jumping and “bombing” in the water. 

The trial judge did not accept this and neither did he accept the assertion that it was impossible for the claimant to ascertain the depth of the water because of the amount of agitation on the water’s surface.  He found (at para 74), “the fact that the claimant executed the dive diagonally indicates that she had given some thought to the matter and did not think the water was deep enough immediately in front of her.  She was right about that.  She sought to reduce the risk by diving into deeper water.  She was an accomplished swimmer.  She knew how much water she needed to dive in.  In my judgment either she misjudged the dive, or she misjudged the depth of the water, or she did both.” 

The trial judge followed (at para 76) with this:

“There is always risk in swimming and diving, in any pool.  Even where an expert diver dives into a purpose built diving pool his dive is not free from risk.  Much depends on the diver’s technique, the angle of entry and so on.   It is well known that diving always carries with it a risk of injury (particularly to the head or neck) if the dive is badly executed, or carried out in water that is too shallow to accommodate it.  None of this is specialist knowledge.  Every adult of normal intelligence knows it.  The claimant in this case knew it.” 

The defendant’s relied on the decision of the House of Lords in Tomlinson (FC) v Congleton Borough Council and Others [2003] UKHL 47. There, the claimant had dived into a lake, which he knew well.  His head collided with the sandy bottom of the lake and he suffered serious injuries.   In dismissing the appeal, Lord Hoffmann placed particular weight on the importance of the exercise of free will and the defendants (and the trial judge) in the instant case relied particularly on paras 44 and 45 of Lord Hoffmann’s judgment in Tomlinson:

“44. The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138 – 1153 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone, to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for 6 out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury. So compared with Bolton v Stone, this is an a foriori case.

45. I think it will be extremely rare for an occupier of land to be made under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. ”

The trial judge further cited paragraph 27 of Lord Hoffman’s speech in Tomlinson: “Mr Tomlinson knew the lake well and even if he had not, the judge’s finding was that it contained no dangers which one would not have expected.  So the only risk arose of what he chose to do and not out of the state of the premises”.  In short, the trial judge’s view in Grimes was the Tomlinson approach applied: there were “no hidden or unexpected dangers” and furthermore the claimant had “familiarised herself with the contours of the pool” and “the risk here (for the claimant) was the risk inherent in diving” (para 84). In contrast, at para 85, the defendant “was not required to adopt a paternalistic approach to his visitors, all of whom were adults, all of whom were making choices about their behaviour, exercising their free will”.

Finally, the claimant argued that the defendant owed to the claimant a duty at common law to take reasonable steps to ensure that the claimant was reasonably safe when visiting his home as his guest, a duty that could have been discharged by either i) putting the pool out of bounds and/or  ii) forbidding diving in the pool. The claimants submitted that that the duty was established on an application of the three limbed test set out by the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605 (proximity, foreseeability of damage, fair just and reasonable).  The trial judge relying inter alia on para 46 of Lord Hoffmann’s judgment in Tomlinson and on para 17 May LJ’s judgment in Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton [2008] EWCA Civ 646  found that a duty to protect against obvious risk or self inflicted harm exists only in cases in which there is no genuine or informed choice and that a duty should in the circumstances, only exist where the defendant has in some relevant way assumed responsibility for the claimant’s safety,

The trial judge found that in the present case there was an absence of an assumption of responsibility (which per Caparo would have meant that there was an insufficiently proximate relationship between those running the premises and the claimant) and neither would in be fair, just or reasonable in the circumstance, where the claimant had taken an informed risk, for a duty to be imposed.

Conclusion

The influence of Tomlinson in cases of this nature appears enduring (see also Evans v Kosmar [2007] EWCA Civ 1003). As for Giles, she was asked (in The Times on 6 September 2012 “A brutal game for fearsome hard men and one woman” by Melanie Reid, an award winning journalist who herself broke her neck in an accident) about the dangers of wheelchair rugby and replied “I’ve broken my neck – what more can I do.” Who, Reid says, could begrudge Grimes a little nihilism.  Reid goes on “Risk. Like so many of us in wheelchairs, Grimes played with it and lost. She daily swallows the bitter consequences. The dark, gladiatorial image of her sport suits the young, active, risk-losers who want a reason to keep living; who find salvation in aggression.”