BMC Risk, Liability & Outdoor Adventure Conference: an overview

Posted by Catherine Flitcroft on 08/11/2012
Risk, liability and the outdoors.

The BMC held a successful conference on 1 November, looking at risk, liability and outdoor adventure, aimed at landowners and users alike. This is a summary of the event with links to the presentations.

The conference, held at Castleton YHA (Losehill Hall), was attended by over 70 people - from those who work in the outdoors to solicitors dealing with liability issues. 

A number of interesting presentations were given throughout the day, focussing on perspectives of risk in the outdoors, current management of risk and how to try and balance risk and recreation.

Risk, adventure sports and the law: the academic, the political and the practical
Professor David Ball, Middlesex University
– David outlined the change that is needed from Risk Assessment to Risk Benefit Assessment and the different mindsets between resource providers and risk takers. He also outlined the need to involve participants who inherently know the risks in decision making and the place for written risk assessments.

Government thinking: the politics of risk and risk management
Lord Tony Greaves, Liberal Democrat
– Tony discussed the concept of using common sense when we undertake our activities in the countryside and how recent legislation has helped reduce occupiers’ liability (i.e.; Countryside & Rights of Way Act 2000, and Marine & Coastal Access Act 2009) but that the debate over what is a ‘natural feature’ still continues. Currently, it seems that access to the countryside isn’t top of the political agenda and it is increasingly difficult for those outside Government to access and influence debate. Tony outlined the role of the House of Lords in defining legislation and the importance of the All Party Parliamentary Group for Mountaineering as a way of raising climbing & walking issues with MPs and Peers. 

Risk and the private landowner
Andrew Shirley, Country Land and Business Association
– Andrew discussed the importance of long-term management objectives to landowners and the real concerns that access can bring (concerns over livestock, safety, crop damage, chemicals, impact on wildlife, sporting rights etc.), particularly when landowners are seeking a financial return from their land.  Andrew outlined the fact that risks may be acceptable and obvious to climbers but others following suit and entering the land (e.g. dog walkers) may not be so aware.  Where access agreements have been negotiated with private landowners, these are often with a long-term view but more formal access agreements linked to insurance premiums may be necessary. Andrew also told us of the ‘no win, no fee’ concern for landowners / occupiers; court cases are frightening and costly to landowners.  Andrew also praised the BMC’s Climbing & Occupiers' Liability leaflet.

Risk management case studies: National Trust experience
Caroline Steel, National Trust
– Caroline gave an overview of how the National Trust balances risk and recreation and how recent case law has started to help define the need for people to make their own decisions around risk in the outdoors.  She outlined the internal conflict between preservation and access within the Trust and the fact that there is no single solution as every site is different.  Caroline outlined the Trust's ‘Getting Outdoors’ programme which is attracting more people into the outdoors but who have little experience.  Education plays a key role here as it is impossible to prevent exposure to risk naturally found in the outdoors. Caroline also believes regulators need to move forward and use Risk Benefit Assessments as apposed to Risk Assessments. She also explained how, as landowners / managers, it is equally important to capture why you have decided not to do something (e.g.; erecting a fence next to a cliff face).

Leisure safety management: ‘as safe as necessary, not as safe as possible’
David Walker, The Royal Society for the Prevention of Accidents
– David outlined the different perceptions of risk amongst different groups of people and the need to change the common perception of fear. He drew on examples from inland water scenarios, similarly outlining the importance of justifying why (as a landowner / occupier) you have chosen not to do something. The importance of self-regulation was discussed, as David explained risk takers are often the best risk managers, and that safety is sometimes used as a proxy for privacy.  He suggested specialist user groups should work collectively towards a shared vision of risk and risk taking.

David mentioned the water safety principles in his talk, which might be useful in this particular area of work.

Managing risk: an insurance industry perspective
Richard Doubleday, Perkins Slade Ltd
– Richard gave the insurance industry perspective towards risk, outlining those who enjoy risk, the legal framework protecting landowners / occupiers and what the insurance industry would like occupiers of land to do to minimise risk and litigation. He drew on a number of legal cases and discussed the importance of the word ‘reasonable’ (i.e.; did they act ‘reasonably’, were ‘reasonable’ steps taken to minimise risk etc). Richard offered advice to landowners on how to minimise fears of liability and recommended ‘either do nothing well, or something well, but don’t do anything badly’.

Managing risk: talk to an injury lawyer
Rupert Davies, Personal Injury Lawyer
– Rupert outlined the process you would follow in order to take a case to court.  With cases concerning risk and risk taking, the law is generally on the side of the landowner / occupier. Rupert explained however, that the chance of a claim succeeding in court (for outdoor recreation) is low. He went on to explain that under the Compensations Act 2006, courts have a responsibility to consider whether a claim would prevent a legitimate activity from continuing (but that they are ‘courts of evidence, not courts of truth’).

Rupert explained how funding / compensation is a real driver for litigation; the ‘no win, no fee’ culture (also known as the conditional fee agreement). However, claims will only be taken forward if there is more than a 50% chance of a case succeeding. Claims need to come forward within three years of the incident, have to be acknowledge and investigated within three months of receiving the claim, and if the claim is refuted, the decision then has to be made whether to go to court.  If the case does go to court, the landowner / occupier has a maximum of five months to prepare their defence.  It is important to get witness statements and documentation as soon as an incident occurs.
.
Avoiding rocky outcomes: the BMC’s experience
Elfyn Jones, BMC Access & Conservation Officer (Wales)
– Elfyn gave an overview of the BMC’s owned and managed sites and the role of the BMC’s Management policy. He outlined the role of monitoring the sites and some of the issues that the BMC face as a land manager.  Elfyn also drew on the importance of the BMC’s participation statement.

How to work with landowners and reduce fear of litigation
Luke Bennett, Sheffield Hallam University
- Luke's talk suggested that we need to better understand how landowners and recreational users see places and safety provision for them. He outlined a number of studies that he has worked on, looking at how particular safety issues have come to be understood within particular landowner and adviser communities. From his work on tree safety, cemetery management and quarries Luke presented examples of how ownership and declared statements of liability anxiety cannot always be taken at face value. Luke also alluded to the diversity of access takers, and the need to understand what makes each community tick and how different their expectations of safety provision might be. As a lawyer Luke situated this against the backdrop of what the legal system expects of occupiers of land (both in theory and in practice) and as the last speaker in the day's proceedings Luke reflected upon earlier speakers' presentations drawing out the themes of risk/benefit assessment, and the gap between what could be done and what the law actually requires (i.e. issues of practicability). Luke closed his presentation by explaining that he is currently studying these issues in the specific context of owners' and users' perceptions of place and safety management for former quarries, in part in collaboration with the British Mountaineering Council. 

What happens next?

  • BMC will consider putting together a leaflet for walkers (similar to the Climbing & Occupiers' Liability leaflet) and collate a list of useful court cases
  • BMC will work with other recreational organisations to act collectively and put together broad principles and advice for users and landowners / occupiers (perhaps through the Sport and Recreation Alliance)
  • BMC will also work with those organisations with an outdoor remit (AMI / Association of Heads of Outdoor Centres etc) to pool knowledge and share good practice
  • BMC will meet with regional members of the CLA and other landowning representatives where and when appropriate
  • The Mountaineering All Party Parliamentary Group and Adventure All Party Parliamentary Group will hold a joint meeting for MPs and Peers to discuss the issue
  • BMC will hold a follow-up event in 2013 aimed specifically at the Quarry Industry. 

For more information on the conference and the BMC’s work on liability issues, please contact Cath@thebmc.co.uk

 



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