Climbing Wall Managers Seminar. Irish Sport HQ, National Sports Campus Wednesday, 24 th September 2014

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1 Climbing Wall Managers Seminar Irish Sport HQ, National Sports Campus Wednesday, 24 th September 2014

2 The Legal Aspects of Risk Analysis

3 Negligence Inherent Risks

4 Inherent risks risks associated with an activity that aren t necessarily caused, they can just happen

5 Canoeists get cold Hillwalkers twist ankles Wall climbers pull muscles Boulderers hit the deck

6 Negligence is doing (or more likely not doing) something that causes harm to someone or something, that if you had thought about it, you would have foreseen you would or might do harm to that someone or something.

7 Risk Management 1 Adults by their participation in risk activities thereby consent to the associated inherent risks Volenti non fit injuria.

8 Portsmouth Youth Activities v- Poppleton 2008 EWCA Civ 646

9 Risk Management 2 Adults by their participation in risk activities DO NOT consent to being injured through negligence Volenti does not extend to injury caused by your negligence

10 Risk Management 3 Children do not consent to inherent risks by their participation in risk activities

11 Risk Management 4 Children cannot consent in writing to inherent risks; But a parent / guardian may do so on their behalf; For professionals, it is essential, not just better, to get the parental consent IN WRITING

12 In the amateur environment 1 Adults may specifically agree, for themselves, to the risk of being injured by negligence This option is a Disclaimer or Waiver Unpleasant document Some clubs do, some don t Puts new members off

13 In the amateur environment 2 The parent / guardian cannot specifically agree on behalf of the child to the child being injured by negligence, - they cannot Disclaim for the child. Therefore if negligence harms a child there will be a claim, it isn t possible to contract out. They cannot go further than consenting to the inherent risks.

14 In the amateur environment 3 The parent / guardian can agree in writing to indemnify the service provider against claims made by the child in negligence. I will repay to you the full amount you will owe my child if your negligence harms him. The commercial value of this may be illusory. Extremely unpleasant document.

15 Risk Management Inherent risks are not your responsibility Negligence you avoid. For all other situations there is insurance.

16 Employees Common law and modern Health and Safety legislation require all employees to have a safe system of work. Their negligence is your negligence.

17 Responsibility to your Employees Safe System of Work Means standard operating procedures (SOPs) that avoid harm befalling employees. It doesn t mean they can t get hurt, only that they shouldn t.

18 Responsibility for your Employees Their negligence is your negligence. Even if not following SOPs

19 Responsibility for Employees Conole v- Redbank Oyster Company [1969] 1 I.R. Page 191

20 Subcontractors 1 Some industries rely heavily on contractors, persons who are not on the payroll, who come in to perform a task, invoice, get paid, and leave Technical term contract for services. Employees have a contract of service.

21 Subcontractors 2 Contractors may be treated as employees for the safe system of work test under certain circumstances. The employer and the contractor may have a written services engagement contract but that is far from being the end of it.

22 Employees / Contractors 3 First, what is the reality of the arrangement between the employer and the contractor? Can the individual be told not only what is to be achieved but how to achieve it? (the traditional test) Is the contractor less expert, as expert, more expert in the task being undertaken.

23 Two Major Exceptions High risk activity Advancing the economic interest O Keeffe v- Hickey [2008] IESC 72

24 Instruction Degree of Care Soars Beginners Children Never delegate to a scout leader or teacher Hammer into instructors

25 Qualifications / Competence Instructors should possess Ideally both Relevant Equivalent in house training Experience

26 Negligence / Inherent Risks Informed consent protects Notices Don t stand under climbers - Don t distract climbers Registration - Sensible set of rules Simple language Avoid egging up

27 Children s Consent Letter Never ever be without One child one letter Never delegate to scout leader or teacher

28 Construction / Design Material must not fail. Attachment of holds to wall must not fail. Designs must be adequate, e.g. distances between climbs Multi-discipline facilities

29 Audit Migrating mats Children sitting on mats Messing / distractions Instructors instructing competently Children misbehaving All work of anyone whose work fails