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The views from the hills: fatal accidents, child safety and licensing adventure activities

Published online by Cambridge University Press:  02 January 2018

David McArdle
David McArdle*
Affiliation:
School of Law, University of Stirling
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Abstract

Two recent fatal accident inquiries (FAIs) in Scotland have potentially far-reaching ramifications for educational provision across the whole of the UK. The deaths of two teenage children during the course of outdoor adventure activities led the sheriff in one of those inquiries to recommend a review of the regulatory framework which governs those activities. This call for an across-the-board review means the outdoor education sector – which includes organisations which provide outdoor education for schools groups as well as those offering more adventurous experiences for children outside term time – is now likely to face a degree of scrutiny greater than any it has experienced since the 1993 Lyme Bay disaster.

This paper draws upon research interviews with those who work in outdoor education in some of the more remote areas of Scotland. The data from those interviews indicate that some of the issues that ought to be considered in any such review will not be immediately apparent from reading either the fatal accident inquiries' determinations or the literature which is available either on the Heath and Safety Executive's website or otherwise in the public domain. In particular, it appears that some issues which have only reached a wider audience by virtue of these FAIs have actually been the source of longstanding concerns among the stakeholders, dating back to the mid-1990s when the regulatory framework that came into being in the wake of Lyme Bay was still under discussion. This paper therefore uses the interviewees' responses to help develop a greater understanding of the issues that exist in this particular sector and to illustrate the legal and logistical challenges that it faces.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 3 , September 2011 , pp. 372 - 391
Copyright
Copyright © Society of Legal Scholars 2011

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References

1 Inquiry into the Death of Laura McDairmant (28 June 2010) Part VI, para 1, available at http://www.scotcourts.gov.uk/opinions/2010fai29.html.

2 See below n 24 and related text.

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7 House of Commons Children, Schools and Families Committee Transforming Education Outside the Classroom (2010), available at http://www.publications.parliament.uk/pa/cm200910/cmselect/cmchilsch/418/418.pdf.

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9 Seven being 10% of all AALA-accredited providers in the region; see the website available at http://www.aals.org.uk/aals/provider_search.php.

10 One of the participants was in the throes of applying for the accreditation that would allow his organisation to offer those activities, but he had extensive experience of working for AALA providers elsewhere and was able to offer invaluable insight into the accreditation process.

11 This is undertaken in a second aspect of the research, which compares the Scottish perspective with that of similar centres in South Africa. It has been generously funded by the Association of Commonwealth Universities/British Academy collaborative research programme and is carried out in collaboration with Professor Steve Cornelius at the University of Pretoria.

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16 Inquiry into the Death of Laura McDairmant, above n 1.

17 Ibid, Part I, para 46.

18 Ibid, Part I, para 55.

19 Ibid, Part I, para 101.

20 Ibid, Part I, para 94.

21 Ibid, Part I, paras 71–84.

22 Inquiry into the Death of Kaylee Susan McIntosh (27 May 2009), available at www.scotscourts.gov.uk/opinions/opinions/mcintosh.html.

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24 Peter Kite, the managing director of the company which ran the activities centre at Lyme Bay, was the first person in the UK to be convicted of corporate manslaughter. He was sentenced to 3 years' imprisonment, reduced to two on appeal, and his company was fined £60,000: R v Kite[1996] 2 Cr App Rep (S) 295. Joseph Stoddart MBE, the centre's manager, was acquitted after the jury failed to reach a verdict. OLL subsequently failed to establish that the coastguard service, which was actively engaged in the rescue mission, had breached its duty of care notwithstanding its misdirection of its own personnel and others involved in the rescue: OLL v Secretary of State for the Home Department[1997] 3 All ER 897.

25 One instructor said in her letter of resignation, ‘you should have a very careful look at your standards of safety, otherwise you might find yourself trying to explain why someone's son or daughter will not be coming home’: D McArdle ‘Rethinking sports organisations’ responses to workplace concerns' in Greenfield, S and Osborn, G (eds) Law and Sport in Contemporary Society (Frank Cass, 2000)Google Scholar p 219.

26 Glenridding Beck – Investigation Report, above n 6, Part E, para 8.

27 Ibid, Part B, para 2.

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35 Parry and Clarke, above n 4, at 115.

36 Amended by the Management of Health and Safety at Work Regulations 1999, SI 1999/3242.

37 The inspection element of AALA's work has been carried out by the Adventure Activities Licensing Service (AALS) since April 2007 when, by virtue of the Hampton Report's recommendations, AALA was subsumed into the Health and Safety Executive: no author ‘The HSC/HSE Simplification Plan’ (2007) 14(7) Health and Safety at Work 630. The Adventure Activities (Licensing) (Designation) Order 2007, SI 2007/447 made provision for that change and, despite it having occurred a year prior to these interviews, participants sometimes referred to ‘AALA’ when they meant ‘AALS’ or to ‘the Authority’ when they meant ‘the Service’. I have sought to use the correct nomenclature throughout this paper, and on occasion this has necessitated small departures from what the interviewees actually said.

38 Ie, not accompanied by a parent or guardian or an individual who has parental responsibility in accordance with the Children Act 1989 or the Children (Scotland) Act 1995: SI 2004/1309, reg 3.

39 As amended by SI 2007/446, 447.

40 See the website available at http://www.hse.gov.uk/aala/about-activities-licensing.htm. AALA's website also offers guidance on compliance, advice for activities providers, parents and schools and has a searchable database of registered providers.

41 Reg 6(2)–6(4).

42 Health and Safety Executive Guidance from the Licensing Authority on the Adventure Activities Licensing Regulations 2004 (2007), available at http://www.hse.gov.uk/pubns/priced/l77.pdf.

43 Inquiry into the Death of Laura McDairmant, above n 1, Part V, para 30.

44 Ibid, Part V, para 18.

45 Ibid, Part V, para 31.

46 Ibid, Part VI, para 12.

47 Glenridding Beck – Investigation Report, above n 6, Part G, para 16.

48 Defined at ibid, Part A, para 7.

49 The waterfall is near Moffat, just off the M74 motorway. It is most definitely in Dumfries & Galloway, as are the trust's premises at Barcaple.

50 Inquiry into the Death of Laura McDairmant, above n 1, Part I, paras 101–104.

51 Ibid, Part I, para 98.

52 Ibid, Part III, para 5.

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54 ‘School building plan facing cuts’BBD News, available at http://news.bbc.co.uk/1/hi/education/10490838.stm; ‘Teachers in Glasgow rally over budget cuts’BBC News, available at http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/8551588.stm.

55 Adventure Activities Licensing (Amendment) Regulations 2008, SI 2008/1973, reg 2.

56 For example the Education Act 1944 and the Education (Scotland) Act 1945.

57 Higgins, above n 33.

58 Inquiry into the Death of Laura McDairmant, above n 1, Part V, para I.

59 Put another way, ‘the academic ethos and character of Scottish schools produces inequalities... because it is not equally accessible and attractive to learners, and because it offers little incentive to pupils lacking appropriate social and cultural (as well as economic) capital’: Organisation for Economic Cooperation and Development Quality and Equity of Schooling in Scotland (2007), available at http://213.253.134.43/oecd/pdfs/browseit/9107211E.pdf, cited in M Arnott and J Ozga Education and Nationalism: Education Policy and the SNP Government Paper presented to the Social Policy Association Annual Conference, University of Edinburgh, June 2008, reproduced with permission.

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61 To take a Google-generated random example from one outdoor provider's website, parents can expect to pay £100 plus VAT for two nights' accommodation and three days' Curriculum for Excellence-linked activities in the summer months: see the website available at http://www.lochgoilhead.org.uk. £120 for 72 hours' childcare would strike many parents/carers as a bargain, but of course not everybody has that sort of money available and there is a challenge in ensuring that these opportunities are available to all, regardless of parental means. Some means-tested bursaries are available from the Outward Bound Trust (see the website available at http://www.theoutwardboundtrust.org.uk).

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64 Ibid, para 7.

65 ‘Schools “break law” on teaching assistants, NUT claims' BBC News, available at http://news.bbc.co.uk/1/hi/education/10497175.stm.

66 House of Commons Children, Schools and Families Committee, above n 63, para 10.

67 The Activity Centres (Young Persons' Safety) (Amendment) Bill, which is to be read a second time on 13 May 2011: see the website available at http://services.parliament.uk/hansard/Commons/bydate/20101021/mainchamberdebates/part004.html.

68 ‘It is expected that young people will be able to continue to enjoy exciting and stimulating activities outdoors without being exposed to avoidable risks of death or disabling injury’: see the website available at http://www.hse.gov.uk/aala/about-activities-licensing.htm.

69 ‘Teachers are part of a collaborative activity system; change on their part, because it potentially disrupts the practices of others such as pupils and colleagues, is therefore likely to be resisted’: J Reeves ‘Between a rock and a hard place? Curriculum for excellence and the quality initiative in Scottish schools’ (2008) Scottish Educational Review 6 at 11.

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