Leisure legal 10 - Jun 12

Leisure legal

June 2012 – edition 10

Noise > Food safety > Risk and reward >>

Leisure legal

In spite of the difficulties,business will be brisk thissummer, with the headlineevents of the 2012Olympics and Paralympicsalmost upon usÊ

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You have been sent this material because you have previously registered your interest in receivinginformation from Berrymans Lace Mawer LLP. If you no longer wish to receive the mailing, pleaseunsubscribe. This document does not present a complete or comprehensive statement of the law, nordoes it constitute legal advice. It is intended only to highlight issues that may be of interest to clients ofBerrymans Lace Mawer LLP. Specialist legal advice should always be sought in any particular case.

Solicitors with offices in Birmingham, Bristol, Cardiff, Leeds, Liverpool, London, Manchester andSouthampton. Berrymans Lace Mawer is a trading name of Berrymans Lace Mawer LLP, a limited liabilitypartnership registered in England under number OC340981, which is authorised and regulated by theSolicitors Regulation Authority and accredited to quality standards ISO 9001 and Lexcel. The registeredoffice is at King’s House, 42 King Street West, Manchester M3 2NU where a list of members is availablefor inspection. Information is correct at the time of release. © Berrymans Lace Mawer 2012

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ContactBLM Birmingham

James Harvey T 0121 633 6622 E [email protected]

BLM Leeds

Richard Clarke T 0113 261 5577 E [email protected]

BLM Liverpool

Michael Brown T 0151 471 5446 E [email protected]

BLM London

Helen Grimberg T 020 7 865 8473 E [email protected]

BLM Manchester

Simon Morrow T 0161 838 6791 E [email protected]

BLM Southampton

Andrew Hibbert T 023 8038 2613 E [email protected]

Changing your detailsIf any of your details have changed, you would prefer to receive publications by email alert, or you no longer wish toreceive this publication, please let us know by emailing Janet Willmott at [email protected]

Since the last edition of Leisure legal, the leisure industry has seenmany challenges, ranging a half-baked attempt at a pasty tax-hike, tothe potential collapse of the euro zone. In spite of the difficulties,business will be brisk this summer, with the headline events of the2012 Olympics and Paralympics almost upon us.

With the influx of tourists expected, the pubs and restaurants in Londonand throughout the UK will face unprecedented numbers of customers.Françoise Snape’s update on food safety will help stay ahead of localauthority action, offering guidance and practical advice on managingclaims and prosecutions, whilst having pragmatic regard to thecommercial importance of reputation in the food industry. Staying withthe pub theme, Simon Morrow examines employers’ duties to staffworking in high-decibel environments, and the steps they can take toprotect their employees.

Employees are a vital part of the success of any business, butparticularly so in the leisure industry. Laura Samuel examines a recentSupreme Court decision on fixing a retirement age, and sets out theguidance given. Mark Chetwood analyses ‘non-delegable’ duties ofcare, which are of importance to providers of leisure activities asdiverse as swimming pools, entertainment centres and bowling alleys,and Richard Clarke looks at the onerous obligations on health clubs.

Matt Ford and Mark Chetwood tackle the tricky issue of sport,analysing risk in golf and rugby respectively. Sports clubs can benefitfrom some clear, practical guidance. James Harvey’s article onunincorporated associations will be required reading for virtually everyamateur sports club or association in the country. James touches onthe civil and criminal liability that members may face, and gives someneat advice on how to handle the inevitable risk of running a club.

This edition seeks to guide businesses through the minefield of risk thatis inevitable in the leisure industry. We hope you find it useful and, asalways, we welcome comments and suggestions. If you would like todiscuss the articles or any issues raised, please do get in touch.

Helen GrimbergPartner

Welcome to the 10thedition of Leisure legal

Page 2 - Food safety: the sweet and sour

Page 3 - Noise in the leisure industry – a health check

Page 4 - Justifying retirement – when are an employer’saims legitimate?

Page 5 - ‘Non-delegable’ duties of care

Page 7 - Teeing off: risk and reward

Page 9 - When cricket and rugby clash

Page 10 - Sports clubs: liability by association?

Page 12 - ’Fit’ for purpose?

Editorial

Contents

Berrymans Lace Mawer page 1

Leisure legal

Food safety: thesweet and sour

Local authorities are responsible forthe enforcement of Food Safetylegislation to ensure that the 550,000plus registered food establishments inthe UK comply with food safety law.Suspension/revocation of approval orlicence was up 59.1% (from 36 in2009/10 to 88 in 2010/11).

Framework legislation

In 2006 the EU introduced changesto food safety legislation in a bid toincrease consumer protection whilstclarifying that the primaryresponsibility of food businessoperators is to produce food safely.

The Food Hygiene Regulations 2006(the Regulations) apply to all foodoperators, essentially catching allbusinesses producing, processing,and distributing food, and thoseindividuals controlling the food

management side of the business.Additionally, the Food Safety Act1990 covers all supply of food, otherthan sales, in the course of abusiness.

The Regulations impose duties whichfocus on keeping premises clean,hygienic and appropriately equippedfor the production, distribution orsupply of food. Each business musthave an effective managementprocedure in place to manage foodsafety.

Hygiene – what happens when foodsafety turns sour?

Every local authority in England hasan environmental health team whichcarries out routine inspections on allregistered food premises. Theinspectors have powers to close foodpremises, issue improvement noticesand also prosecute a business forbreaches of food safety law.

A conviction can lead to fines of

£5,000 per offence and/orimprisonment for up to six months inthe Magistrates’ Court. For moreserious offences, tried on indictmentin a Crown Court, an unlimited finecan be imposed and/or imprisonmentnot exceeding two years.

In 2009 Heston Blumenthal’s three-Michelin-starred restaurant, The FatDuck, was closed for three weeksfollowing food poisoning of over 500diners. Although no formal actionwas taken against the celebrity chef,he is reported to have lost over£150,000 in profits.

Jamie Oliver was also unable toescape the wrath of food inspectorsduring routine premises inspections ofhis chain of Italian restaurants in2009 to 2010. The environmentalhealth inspectors recommendedimprovements to 11 of his 17 Italianrestaurants, although no formalimprovement notices were served.

Other business premises have not

page 2 Berrymans Lace Mawer

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been fortunate enough to get awaywith merely a slap on the wrist. ALondon Chinese restaurant, KamTong, was fined £30,000 when healthinspectors spotted a mouse swimmingin a portion of sweet and sour sauce.The owner was also given an 18-month suspended prison sentence.TGI Friday’s in Covent Garden spent£66,000 on a six-day clean-upoperation, catching 65 mice in theprocess, following a hygieneinspection. The company also paid£30,000 in fines. KFC in LeicesterSquare was fined £11,000 forhygiene breaches after cockroacheswere found on the premises.

BLM has noticed a trend that severalclaimants who suffer food poisoningnot only report the establishment totheir local authority but startcampaigns on social networking sitesto highlight the incident. This canlead to inaccurate reporting, damageto reputation and encouragespeculative personal injury claimsfrom other diners. Following anoutbreak, it is important to actquickly, retain evidence, work with thelocal authority and manage civilclaims.

Defending food safety law breaches

It is a defence for the person chargedunder either the Food HygieneRegulations 2006 or the Food SafetyAct 1990 to show they took allreasonable precautions and exercisedall due diligence to avoid thecommission of the offence.

In Tesco Stores Limited v City ofLondon Corporation (2010) EWHC2920 (Admin), Tesco Stores Limitedwas convicted of three offences forbreaching Food Safety Law and fined£23,000. Tesco argued a defence ofdue diligence:

There was a reasonable systemin place to avoid food safetybreaches as a rat infestation wasreported to Rentokil. Rentokil did

not update the store on theaction required to deal with therat infestation. However, Tescostaff were trained to reportproblems with rats and the stockrotation system to check storagesufficiency was not followed. Norecommendations or concernswere logged in the pest controllogbook and as such duediligence was not made out.

The defence of due diligence wasmade out in Lincolnshire CountyCouncil v Safeway Stores Plc (1999)EHLR Dig 456 where food was soldpast its sell-by date. The storedemonstrated a reasonable system toprevent food safety breaches.Products were checked based on shelflife, and on the final day of its shelflife would be reduced in price. Thestore accepted that mistakes weresometimes made, and in the eventthey were, the member of staff wouldbe traced and removed from theposition. The court accepted in thisinstance that the store had takenreasonable precautions and exerciseddue diligence to prevent the offence.

Conclusion

Failing to comply with food-safetylegislation can have serious financialand reputational consequences. Foodpremises with a reasonable food-management system in place shouldbe able to escape prosecution even ifan outbreak occurs.

The increase in investigations/prosecutions in turn fuel civil actionswhere legal costs often outstrip theaward for damages. Acting quicklyand proactively can prevent aprosecution, minimise adversepublicity and the prevalence of civilclaims.

Françoise SnapePartner

Noise in theleisure industry – ahealth check

The subject of noise in the leisureindustry was covered by A big songand dance falling on deaf ears? inLeisure legal 2, March 2006 but nowwarrants reconsideration in particularin relation to a recent BLM case.

The facts

The claimant alleged that he hadsuffered permanent damage to hishearing from excessive noise that hehad been exposed to while employedas the manager of a town centrepublic house. The alleged exposureoccurred between 1998 and 2005,and therefore prior to the enactmentof The Control of Noise at WorkRegulations 2005, which took effectin respect of the ‘music andentertainment sectors’ from 6 April2008. However, his work was subjectto the provisions of the Noise at WorkRegulations 1989 that came intoforce on 1 January 1990. Theregulations provided that where noiselevels exceed 85dB(A), employers arerequired to:

carry out noise assessments

provide appropriate informationand training to their workforce

supply hearing protection uponrequest

reduce noise by engineeringmeans

enforce the wearing of hearingprotection in areas where noiselevels exceed 90dB(A).

The crux was whether or not theclaimant was indeed exposed toexcessive noise levels. A noiseassessment was carried out in respect

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of a subsequent manager at the samepublic house during operating hoursover a weekend in December 2010;the logging noise dosemeter attachedto the lapel produced somewhatsurprising results. Having condensedthe manager’s lengthy shift into anequivalent eight-hour period, it wasfound that the manager’s overalldaily noise exposure amounted to90dB(A).

This of course rather stands outagainst the provisions of The Controlof Noise at Work Regulations 2005,which requires employers to takeaction where it is likely thatemployees will be exposed to noise inexcess of a new first action level ofonly 80dB(A). Under the newregulations, the measures required inrespect of the public house inquestion were for the employer totake steps to eliminate noise atsource where practicable, but to theextent that this was not an option, toreduce noise to the lowest level‘reasonably practicable’. Compliancewith the 2005 Regulations for thispublic house and any similarpremises required the introduction ofthe following:

Regular noise assessments beingcarried out and recordedspecifically in relation to theworkforce, taking into accountworking in noisier as well asquieter areas and variations inthe levels of noise, rather thansimply measuring the ambientnoise levels in different areas ofthe premises.

All employees being providedwith training, information andinstruction regarding the dangersof exposure to noise.

An upper limit set on the volumeof music being played whichcould not be exceeded.

The premises being made ‘noiseat work compliant’ so far aspossible. For instance byrepositioning loudspeakers sothat they are aimed away fromemployees (particularlyemployees that work in a fixedposition, such as bar staff), theinstallation of vibration isolationmounts to speakers, theprovision of a separate quietarea for customers and the useof absorbent material to provideacoustic dampening.

The provision of regular freehearing tests to employees.

Where possible, the rotation ofstaff to allow for working inquieter as well as noisy areas inorder to reduce the averagenoise exposure time.

The provision of suitable hearingprotection allowing staff to hearcustomers whilst at the sametime providing adequateprotection from noise.

The following additional measuresshould be considered in relation tocustomers:

The display of noise levels fordifferent areas within thepremises.

Signage advising the wearing ofhearing protection.

The provision of earplugs, eitherfree or to buy.

Simon MorrowPartner

Justifying retirement– when are anemployer’s aimslegitimate?

It used to be the case that employerscould compulsorily retire employeesat the default retirement age of 65without acting discriminatorily.However, following abolition of thedefault retirement age in April 2011there is no longer a ‘safe’ age atwhich to require employees to retire.Employers may now only lawfullyretire employees if their actions canbe ‘objectively justified’. Due to thepotential for increasing numbers ofage discrimination claims, thechanges have forced employers in allindustry sectors to take note.

The test for objective justification iswhether the decision was aproportionate means of achieving alegitimate aim. The Supreme Courtdecision of Seldon v Clarkson Wrightand Jakes (a partnership) [2012]UKSC 16 provides useful clarificationon what constitutes a ‘legitimate aim’.Although the case involves a firm ofsolicitors the principles apply equallyto all employers, including those inthe leisure industry.

Mr Seldon, a partner at a law firm,was compulsorily retired at 65 inaccordance with the partnership deedbut contrary to his wishes. He broughta claim for direct age discrimination.

In arguing the decision to retire wasobjectively justified the firm stated itslegitimate aims were:

1 retaining more junior lawyers bygiving them the chance ofpartnership after a time

2 facilitating workforce planning

3 maintaining a congenial andsupportive work environment bylimiting the requirement of


performance management ofolder employees.

At first instance, the EmploymentTribunal accepted the aims werelegitimate and found the decisionjustified. Various further appeals bythe claimant failed and eventually hebrought his case before the SupremeCourt arguing his employer’s claimswere not legitimate within themeaning of Article 6 of The EqualTreatment Framework Directive towhich the UK legislation must giveeffect.

The Supreme Court found the firm’sstated aims were legitimate. However,as the Court of Appeal had earlierdecided, the firm had not shown thata retirement age of 65 was aproportionate means of achieving itsstated third aim (congeniality), thecase was to be referred back to theEmployment Tribunal to considerwhether the decision wasproportionate ie, ‘appropriate andnecessary’.

Lady Hale (with whom the othermembers agreed) deliberatelydeclined to specify what wouldconstitute a legitimate aim. However,she noted that a legitimate aim fordirect age discrimination is differentthan the definition used in indirectdiscrimination claims as for theformer the aims must be ‘social policyobjectives’ and not only apply to aparticular employer (for example,reducing costs).

Lady Hale usefully clarified the typesof social policy objectives theEuropean Court of Justice envisagedbeing inter-generational fairness(sharing employment opportunitiesfairly between the generations) andpreserving dignity of older employees(eg, by reducing the requirement todismiss for underperformance). Shealso provided a helpful list of thelegitimate aims that have beenrecognised in other cases whichinclude promoting access for younger people, planning departureand recruitment of staff, and

rewarding experience.

On referring the matter back to theEmployment Tribunal to consider thesecond question of proportionality,Lady Hale commented:

there is a difference betweenjustifying a retirement age andjustifying this retirement age.

The tribunal’s final decision is awaitedon whether retirement at 65 was anappropriate means of achieving thestated aims.

Comment

In light of recent changes tolegislation, forcing employees to retireat any age is now a risky businessand employers should ensure theirretirement policies are reviewed andupdated. This case serves to reinforcethe importance of being able toproduce cogent evidence to justify thedecision to force retirement at anyage, whether continuing to retire at afixed age or considering employees’circumstances individually. Thisincludes identifying clear aims basedon social policy criteria.

Laura SamuelAssociate

Non-delegable’duties of care’

‘Non-delegable’ duties of care

Recently, Woodland v Essex CountyCouncil [2012] EWCA Civ 239addressed the important issue ofwhether a school owes a non-delegable duty of care to its pupils,such that it was responsible for non-employees who had dealings with itspupils during the course of a schoolday. This case has ramifications forany leisure business operating a poolor spa in relation to the expected dutyof care to all users.

Essex County Council (CC) acceptedthat it owed a common law duty ofcare to the claimant, which includedobligations to take such care aswould be exercised by a reasonablycareful parent and to take reasonablesteps to ensure that independentcontractors, who were engaged tocarry out tasks in respect of pupilswere reasonably competent toperform those tasks. However, itdenied the existence of a non-delegable duty.

The claimant who was ten years old


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at the date of the incident, went toGloucester Park swimming pool withher school class. The swimming poolwas run by the Basildon Council andthe arrangements under which thechildren had their swimming lessonswere organised by Ms Beryl Stotford(t/a Direct Swimming Services)including the availability of the poolfor that use. The life guard and theswimming teacher supervising thelesson in which the claimant sufferedher injuries were employees of MsStotford, not Essex CC.

At some stage in the lesson, whenswimming from the deep end towardsthe shallow end of the pool, theclaimant was seen hanging verticallyin the water. Her breathing stoppedand she suffered a severe brain injury.At the time of the incident, theswimming teacher was in the pool,and the lifeguard was at the side ofthe pool.

Duty of care

The critical feature of the debate attrial seems likely to relate to themeasures in place to ensure that achild in difficulty was promptly spotted

and given the appropriate assistanceand/or the manner in which thosepresent performed their duties in thisregard.

The case was put in three ways. It wasfirst alleged that Essex CC owed aduty to take reasonable care toensure that their independentcontractor, Beryl Stotford, was carefuland competent so that heremployees, the lifeguard and theswimming teacher, were suitablyqualified and experienced. Thisallegation, and the allegation theduty was breached remains awaitingtrial.

Second, it was alleged Essex CC wasvicariously liable for the negligence ofBeryl Stotford and the lifeguard andthe swimming teacher. There was noquestion of any of these threeindividuals being employees of theauthority, and therefore no questionof the authority being vicariouslyliable for wrongs committed by them.There was no appeal against theorder of Langstaff J striking out thispart of the claim.

The third allegation against the

authority was that of a ‘non-delegable duty’ and this issue wasappealed to the Court of Appeal.Langstaff J concluded there was nosuch duty owed. If it were otherwise,this would represent a considerableexpansion of liability beyond whatwas normally considered to be theduty of the school. It was a dutywhich could quite properly beentrusted to others. The injury wassuffered on premises away from theschool and not under the schoolsdirect control. If others werereasonably entrusted with the welfareof pupils, liability rested with them.

LJ Kitchin saw no justification forimposing on Essex CC a non-delegable duty to ensure thatreasonable care was taken of theclaimant by Ms Stotford and heremployees. The claimant suffered herinjuries during the course of a schoolday and whilst taking a swimminglesson. But on the pleaded case shedid so in an environment which wasnot under the control of the schoolstaff and whilst engaged in an activitywhich was not being conducted oroverseen by the school staff. LJKitchin did not think it was fair, justand reasonable to impose on EssexCC the non-delegable duty.

This case highlights the reluctance ofcourts to expand the boundaries ofnegligence liability. Such anexpansion could have the effect ofreducing desirable activitiesparticularly when outsourcing ofswimming and leisure activities bylocal authorities is increasinglycommon. Expanding the duty ofnegligence liability would also havethe inevitable effect of substantialincreases to the cost of insurancepremiums.

Any expansion of the current lawwould be a matter for the SupremeCourt.

Mark ChetwoodAssociate


Leisure legal

Teeing off: riskand reward

Bobby Jones, the great lawyer andgolfer, understood the vicissitudes ofgolf. ‘It is’, he observed, ‘a mystifyinggame. It would seem that if a personhas hit a golf ball correctly athousand times, he should be able toduplicate the performance at will. Butsuch is certainly not the case.’ Golferswho understand the truth of thesewords may be perturbed by Phee vGordon [2011] CSOH 181, heard inScotland. On a summer’s day inAugust 2007, James Gordon teed upto close a day of golf from the 18thhole at Niddry Castle Golf Club. MrGordon hit a ‘duck hook’, the ballveered left and struck Anthony Pheein the eye causing it to ‘explode’,leaving him with only one eye.

Following the accident Mr Phee suedboth Mr Gordon and the club fornegligence. Phee succeeded againstboth defendants, recovering a total of£400,000. Golf clubs need tounderstand the significance of thedecision to ensure that they do notsuffer the same fate.

Below par

Mr Gordon was found to benegligent for taking his shot despitethe inherent risk of Mr Phee beingwithin 15 degrees of his intendedtrajectory. It was argued that MrGordon had shouted ‘fore’, butbecause Mr Phee was aninexperienced golfer (and as suchmay not have understood thesignificance of the call), there was noreduction for contributory negligence.

The golf club was negligent becauseit should have put signs up at thearea around the 18th hole to warnthe players of the danger of ballsbeing struck from the 18th tee, due tothe proximity of the two areas.

The fair way?

Phee v Gordon was decided onScottish law, not English law.Nevertheless, it does raise someinteresting questions as to what wouldhave been decided in an Englishcourt.

Mr Gordon

There is little that is controversialabout the first reason for holding MrGordon negligent. The law of theland may be different on crossing theScottish border, but the rules of golfare universal. Mr Gordon violated therules of golf on safety, aspromulgated by The Royal andAncient Golf Club of St Andrews. Theevidence at trial was stark. Twoformer professional golfers gaveevidence that it was dangerous for MrGordon to play his shot when he did,and that he should not have done so.Indeed, Mr Gordon’s own witnessand playing partner on the day gaveevidence that he would not take ashot whilst there was a person within20 degrees of the intended trajectoryof his ball. The judge’s finding thatMr Gordon’s golfing ability wasmediocre, and that Mr Gordonshould have known that he was

mediocre, also led him to find that itwas not reasonable to take the shotin the circumstances.

Arguably, the finding on contributorynegligence would seem to beincompatible with the English Courtof Appeal decision in Nettleship vWeston [1971] 2 QB 691. In thatcase, the court held that learnerdrivers would be held to the samestandard as experienced drivers. Todo otherwise would lead to a sea ofdiffering standards, which would beoverly complicated. It is thereforesuggested that English courts will holdinexperienced golfers to the samestandards that apply to experiencedgolfers, and that an inexperiencedgolfer who looks up when he hears‘fore’, may face a reduction forcontributory negligence.

Niddry Golf Club

The key English decision for golf clubsis Bolton v Stone [1951] AC 850. Inthat case (which involved an injuryduring a game of cricket) it was heldthat where there is a small risk ofpersonal injury, that risk must bebalanced with the cost of themeasures that would prevent the risk.For a golf club the costs of signage


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will be relatively small and it is likelythat, had the court in Phee v Gordonapplied Bolton v Stone, it would havereached the same decision.

Niddry Golf Club had discussedsafety and risks at the club, but thecourt was critical of the ‘informalnature’ of the discussions. The judgefound that it had failed to take aproactive approach regarding ‘anyspecific action in relation toprecautions unless there wasknowledge, obtained by reporting ofaccidents, of danger areas’. Thisfailure amounted to a breach of theduty the club owed to persons comingonto the course. On the facts, thejudge did not consider that anyphysical barrier would be effective,but it is clear that the need forbarriers will depend on thecircumstances of individual golfcourses. Golf experts involved in thecase were unanimous, however, intheir evidence. They suggested thatsigns would have been a proper andeffective way to draw risk to theattention of golfers, and so wouldhave significantly reduced the risk ofaccident.

The short game

Golf is a complex sport, where

players must make difficultcalculations and judgments. Golfclubs unfortunately face onerousresponsibilities, and even the bestmanagers suffer the occasional ‘duckhook’ that cannot be predicted. Theymay fear that they face a choicebetween, on the one hand, stickingtheir fairways with otiose warningsigns and fences, and on the other,suffering relentless lawsuits fromclaimants and lawyers. Yet it is not so.There are efficient steps that will gosome way to eliminating risk forclubs.

Have a formal risk assessmentcarried out.

Erect signage by tees andwalkways to remind golfers towait until they have a clear shot,and to alert those usingwalkways of nearby hazards.Signage can be integrated in away that is consistent with clubs’heritage and atmosphere.

Consider erecting barriers whereappropriate. These could benatural barriers, such as foliage.

Issue instructions with scorecards, and at theclubhouse, particularly where

novices are concerned.

Include insurance for negligencein the fee for a round of golf, orfor membership.

Society can no more eliminate riskfrom sport than it can eliminate sportitself from society. With the abovestraightforward and practical steps,golf clubs can keep the injuries andlawyers at bay (except for those keenlinksmen amongst them).

A whole in one

The finding of negligence against MrGordon is no novelty. It breaks nonew ground. The rules of golf havelong prohibited taking shots wherethere is a danger of hitting a person.The finding against Niddry Golf Club,however, will test golf clubs. Golf is agame of risk and reward, of strugglesand successes. By proactivemanagement of risk by providingbasic instruction, and by consideringthe layout of courses, golf clubs canminimise risks, accidents and costs.

Matthew FordPartner


Leisure legal

When cricket andrugby clash

In Sutton v Syston Rugby FootballClub Limited (2011) EWCA Civ1182, the Court of Appeal (CA)considered the duty of care that arugby club owes to its players inrelation to conducting an inspectionof the pitch before a game or trainingsession. The judgment is useful andprovides guidance as to the extent ofthe duty owed and the systems thatare needed to avoid liability forpersonal injuries sustained as a resultof a foreign object on the pitch.

The claimant played for his local clubSyston Rugby Football Club Limited.On 2 July 2007, aged 16 ½, he wasparticipating in pre-season training.

Three coaches were present at thetraining session which included agame of informal touch or tag rugby.During the game Mr Sutton wasabout to score a touch down try andwas tagged at the same time he wasdiving to score. He fell onto his rightknee which was gashed by a brokenoff part of a cricket boundary marker,a triangle on a stake, which had beenleft behind by members of a cricketclub who had used the area a fewdays earlier. The triangle had brokenoff leaving a stub in the grass.

The club appealed against a decisionthat it was liable for personal injurysustained by the claimant. If the clubwas liable to Mr Sutton it was agreedthe appropriate measure of damageswas £54,000.

The club admitted it owed a duty ofcare to the claimant and otherparticipants under the OccupiersLiability Act 1957 to take such careas was reasonable in all thecircumstances of the case to see thatthe claimant and other visitors wouldbe reasonably safe in using thepremises. The club further admittedthat there should have been ageneral inspection of the pitch before

the training session began and thatno such inspection took place.

The club submitted:

1 a quick walk over inspectionwould have been sufficientlimited to obvious obstructions ordifficulties

2 even if a more detailedinspection had taken place, suchinspection would not haverevealed the existence of the stubof the cricket marker below thesurface of the grass.

The claimant submitted:

1 a detailed inspection of the pitchshould have taken place

2 such a detailed inspection would,

on the balance of probabilities,have revealed the stub and itwould have been removed

3 in any event the judge’s findingon causation was a finding offact with which this court shouldnot interfere.

The Rugby Football Union (RFU) itselfprovides risk assessment guidelinesand states that such guidelines are forthe purposes of identifying any unsafecondition. The RFU also provides asafety checklist which includes arecommendation to check the groundfor foreign objects ‘such as glass,concrete, large stones, dog waste’.

Lord Justice Longmore did not acceptthat a limited inspection of the kindsuggested by the club woulddischarge the club’s duty of care. He


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noted there was no suggestion in theRFU’s guidelines that such a limitedinspection would be appropriate.

Longmore LJ stated:

it is important that neither thegame’s professional organisationnor the law should lay downstandards that are too difficult forordinary coaches and matchorganisers to meet. Games ofrugby are, after all, no morethan games and as such areobviously desirable activitieswithin the meaning of section 1of the Compensation Act 2006. Iwould therefore conclude that,before a game or trainingsession, a pitch should bewalked over at a reasonablewalking pace by a coach ormatch organiser (or someone ontheir behalf) and that, if that isdone, that will satisfy a club’scommon duty of care in relationto such inspection. If, of course,more than one coach ororganiser is available, each suchperson could inspect a pre-agreed part of the pitch.

However, the broken marker wasbelow the level of the grass.Accordingly, the court concludedthat even a reasonable ‘walkover the pitch’ inspection wouldbe unlikely to have revealed thestub or, at least, that theclaimant has not been able toprove that such an inspectionwould, on the balance ofprobabilities, have revealed thestub’s existence. The claimanttherefore failed on causation.

When concluding his judgment, LordJustice Longmore stated:

this court ... must not be tooastute to impose duties of carewhich would make rugby playingas a whole more subject tointerference from the courts thanit should be.

This is a clear indication that themessage in section 1 of theCompensation Act 2006 is beingheeded by the courts.

Mark ChetwoodAssociate

Sports clubs:liability byassociation?

The nature of unincorporatedassociations

Most sports clubs in the UK take theform of an ‘unincorporatedassociation’ (UA) at law. They vary innature, and it has been said that‘there are probably almost as manydifferent types of unincorporatedassociation as there are forms ofhuman activity’. Many, however, willnot be aware of their own legalnature.

UAs do not have separate and distinctlegal personalities. In relation topersonal injury, this matters. It meansthat (in most cases) every member willown a share of the assets of the club.Usually, members will own equalshares. The question then arises: ifmembership brings property, does italso bring responsibility for thatproperty?

In theory, sports clubs can take thelegal form of limited corporations.Most will not, however, and theirmembers may not appreciate thesignificance of the distinction. Themost common view is that allmembers of an unincorporatedassociation will be personally liable,but the point is open to debate. Thereare good reasons to think that thecourts would not impose liabilitymerely by virtue of membership.

In most cases where liability arisesfrom property, there must be somedegree of control. It is unlikely to bereasonable that a member who turnsup for his first day playing footballshould then find himself liable for aserious sporting injury during a matchthat evening; he had nothing to dowith (and could have done nothingabout) the faulty football pitch thatcaused the injury.

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Can an ordinary member ever have‘control’?

Generally, where there is no control,there is no duty (Jennings v ForestryCommission [2008] EWCA Civ 581).In the situation just described above,it would be hard to see how a newlyjoined member could control the clubproperty. He would not have thepower to cancel training and order arisk assessment, even if he tried to.Why then should he be responsiblefor injuries arising as a result of theproperty?

Criminal liability

Although there is no authority for thecivil liability of an individual, by virtueof membership of a UA, there isCourt of Appeal (CA) authority forcriminal liability. R v RL and JF [2008]EWCA Crim 1970 concerned theliability of a golf club for a breach ofsection 85 of the Water Resources Act1991. It was a criminal offencepunishable by up to two years inprison. The section provided that:

1 A person contravenes this sectionif he causes or knowingly permitsany poisonous, noxious orpolluting matter … to enter anycontrolled waters.

An oil tank on the golf club’s landruptured, the oil escaped, pollutingnearby water. The CA held that:

the criminal liability of themembers of the club, includingthe chairman and the treasurer,is primary liability ... it arisesbecause … each person jointlymaintains the tank and has thuscaused the leak.

The court concluded that:

a prosecution for the strictliability offence of causingpolluting matter to entercontrolled waters may bebrought, on the facts of this

case, against either the club in itsown name, or against individualmembers.

Can a member of a UA sue the UA?

The majority of civil cases involvingUAs will be either members suing theUA, or third parties suing the UA.There is no doubt that third partiescan sue UAs, but should members bedenied? There are two possibleanswers to this question:

1 Members are distinct frominnocent third parties, becauseas joint owners of the property,they have as much control astheir fellow members, and aretherefore responsible for anyharm that occurs from theproperty.

2 A member can sue in theirprivate capacity. On the secondanalysis, the claimant wouldtechnically be a defendant to herown claim, and it would seemthat any award should bereduced in proportion with herownership/control under therules of the UA.

It may sound absurd for a claimant tosue themselves, but if a claimant onlyhad one vote out of 100 then he/shewould not have had the power to

change the way the UA’s property wasmanaged. The claimant thereforewould not be responsible for the wayin which the property was managed.On this basis, the second answer ispreferable in law.

Practical guidance

Members of UAs need not panic.There are three basic steps thatorganisers can take to minimiseheadaches: first UAs should haveclear management structures, withresponsibility for safety and riskassessments resting with an ableindividual or board. Key decisionmakers can then be insured. Second,UAs should ensure that they areindemnified for potential damages bythird parties that may work with theUA. Last but not least, UAs shouldhave comprehensive insurance for theclub and its members. UA liability is afoggy area of law, and it is best not totake chances on litigation if it can beavoided.

James HarveyPartner

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Leisure legal

Fit’ for purpose?

Understanding the obligations onhealth clubs makes for anything but aleisurely read.

As a middle-aged experienced keep-fit proponent, the author recentlyattempted to gain access to a nearbylocal authority operated gym and wasadvised that to make use of thefacilities required a one hourinduction process. Is this level ofcaution really necessary? What arethe guiding principles that apply?

Extent of the duty of care

There are at least three different(sometimes overlapping) categories ofduty owed, namely:

1 The common duty of care unders2 of the Occupiers Liability Act1957 – based on the conditionof the premises.

2 Situations where the premisesthemselves cannot be regardedas unsafe but where there maybe hidden dangers.

3 Those premises on whichactivities are permitted, without

any organisational input by theoccupier and which maythemselves give rise to a danger.

Taking each of those in turn, theoccupier of the leisure club isrequired to ensure that the club andall equipment is reasonably safe forvisitors to use for the intendedpurpose. However, the obligationunder the Act does not impose anyfreestanding supervisory duty inrelation to what goes on within thepremises.

In relation to the second categorythere is an obligation on the occupierto warn of any hidden danger(Poppleton v The Trustees of thePortsmouth Youth Activities CentreCommittee (2008) EWCA Civ 646).The defendants voluntarily assumed aduty to teach the claimant properly touse an indoor climbing room. Therewas nothing wrong with its design orconstruction but the floor was coveredwith a deep (12 to 16 inches) safetymat, the obvious purpose of whichwas to provide protection againstimpact injuries in the event that aclimber fell. The walls were 16 feethigh. Unfortunately the claimant fellawkwardly on the mat, breaking hisneck. It was found that the centre didnot draw to the claimant’s attentionthe recognised risk that the provision

of a safety mat might create a falsesense of security, encouragingsomeone to take a chance that onemight not if the floor had been madeof concrete.

The Compensation Act 2006

Section 1

A court considering a claim innegligence or breach of statutoryduty may, in determining whetherthe defendant should have takenparticular steps to meet astandard of care (whether bytaking precautions against a riskor otherwise), have regard towhether a requirement to takethose steps might a) preventdesirable activity from beingundertaken at all, to a particularextent or in a particular way or b)discourage persons fromundertaking functions inconnection with a desirableactivity.

This is an emerging trend. Courts arerecognising that individuals are freeto engage in hazardous activities ifthey do so voluntarily and that peoplecannot claim any form of remedyagainst another party if things gowrong.


Leisure legal

‘

Poppleton followed hot on the heelsof Tomlinson v Congelton BoroughCouncil (2003) UK HR47. Thefamous passage from Lord Hoffman’sjudgment:

I think it will be extremely rare foran occupier of land to be undera duty to prevent people takingrisks which are inherent in theactivities that they freely chooseto undertake upon the land.

This leads on to a consideration oftwo types of leisure club.

Unsupervised leisure centre

This may be a gym where equipmentis provided but there is no supervisionor instruction. Furthermore, there isno form of medical check orscreening before using equipment.Any obligation would be owed unders2 of the Occupiers Liability Act. Inshort, it is not up to the occupier ofthe gym to check on the health of theindividuals who attend, or to providesupervision.

Having said that, the occupier will beclearly expected to provide equipmentthat is fit for purpose.

Supervised leisure centre

This position is more complicated.Clearly the same considerations applyin relation to the state of the premisesand equipment and the responsibilityfor defects as with unsupervisedpremises.

However, additional obligations restupon the operator of the gymincluding implicit occupier and visitorresponsibility, on account of thesupervision provided.

Fitness Industry Association Code ofPractice

Industry standards, and in particularFIACoP, set out the minimumperformance criteria for health clubsand leisure centres to ensure that

customers are provided with a safeenvironment in which to exercise andengage in leisure activities.

The code does not create a new lawor act as a substitute for any existingregulations but the FIA assists inproviding clear interpretations of thestandards of the code.

The contents of the CoP are worthy ofconsideration. Briefly, key points are:

Medical pre-screening – newusers should be asked to fill inthis document beforeundertaking physical activity.

Facility users – a record of allusers should be kept.

Induction – ensure that all usersare assessed before usingequipment.

Over and above that, fitnessequipment should be maintained in accordance with manufacturers’service schedules and checks shouldbe carried out as per themanufacturers’ guidelines – keep the original and a copy ofdocumentation. Equipment should be fit for purpose.

Returning to the requirement toundergo an initial lengthy induction –much will centre on the interpretationof ‘ensure’. In other words theoperator should ensure that thecustomer is able to use theequipment. Is it enough for thoseattending to sign a document to saythat they are familiar with gyms andhave used such equipment before? Isit also necessary for an experiencedtrainer to check that someone isfamiliar with the equipment beforeallowing them to use it?

Pulling together the various threads,with the increased recognition bycourts of personal responsibility andfree will, the likelihood is that it is notnecessary, in such circumstances, torequire someone to undergo aninduction if they present themselves as

being a past user of gym equipmentand familiar with what they are doing.

Guidance on unfair terms in healthand fitness club agreements

The aim of the OFT document is tohelp ensure that the standard contractterms used in health and fitness clubagreements are fair and clear.

Much of the document relates tofinancial matters and membershipperiods. There are also usefulexamples of unfair exclusion andlimitation terms together with the ‘fair’wording for a recommended form,namely:

Conclusion

It will be appreciated that the law inrelation to health and fitness clubarrangements is complex. However,there is good guidance available andprovided a sensible interpretation isfollowed then it should be possible forleisure centres to minimise risk andliability for unfortunate accidents.

Richard ClarkePartner

We will compensate you forany loss or damage you maysuffer if we fail to carry out ourobligations under this agreementor to a reasonable standard orbreach any duties imposed on usby law (including if we cause thedeath or personal injury to you byour negligence) unless that failureis attributable to:

1 Your own fault.

2 A third party unconnectedwith our provision of servicesunder this agreement.

3 Events which neither we norour suppliers could haveforeseen or forestalled evenif we had taken allreasonable care.

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Berrymans Lace Mawer

0612

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News

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For updates or furtherdetails of any of the eventslisted, visit the eventssection at blm-law.com

Details of these events maychange at any time.

Leisure legal is published by the marketing department of Berrymans Lace Mawer LLP (Castle Chambers,43 Castle Street, Liverpool L2 9SU) on behalf of Berrymans Lace Mawer. Visit blm-law.com for electroniccopies. This information is correct at the time of printing. Printed in England by The Pureprint Group.

Birmingham63 Temple RowBirminghamB2 5LST 0121 643 8777F 0121 643 4909

LiverpoolCastle Chambers43 Castle StreetLiverpool L2 9SUT 0151 236 2002F 0151 236 2585

BristolSt Thomas CourtThomas LaneBristol BS1 6JGT 0117 933 7700F 0117 933 7777

LondonSalisbury HouseLondon Wall, London EC2M 5QNT 020 7638 2811F 020 7920 0361

Cardiff23 Neptune CourtVanguard WayCardiff CF24 5PJT 02920 447667F 02920 489041

ManchesterKing’s House42 King Street WestManchester M3 2NUT 0161 236 2002 F 0161 832 7956

LeedsPark Row House19–20 Park RowLeeds LS1 5JFT 0113 236 2002F 0113 244 2002

Southampton2 Charlotte PlaceSouthampton SO14 0TBT 023 8023 6464F 023 8023 6117

Dates for your diary – 2012BLM’s leisure specialists are involved in a number of in-house and external events throughout 2012. For up-to-date details, please visit the events page at blm-law.com

Leisure seminar6 December, Venue TBC

Corporate riskToday, perhaps more than ever, the risks faced by individuals and businesses have come to the fore with the recentstrengthening of health and safety and corporate manslaughter laws. Are you completely up to date with how theseand other laws can affect you and your business? BLM specialists are active in providing key corporate risk updatesand information for handling a response to an incident, managing reputation and liabilities.

Other major eventsClaims reviewPlanning is already under way for BLM’s ever-popular Claims review events. Thesewill be held on 8 November in London and 14 November in Manchester. Details willbe released closer to the time on the events section at blm-law.com

Client area web siteHave you visited our exclusive website? The area provides access to a wide range of information tailored to specific interests,including event and publication documents, tools and other material which is only available to BLM clients.

Visit www.clients.blm-law.com to access the login page to ‘Register’.

Documents

Leisure legal 10 - Jun 12