Last year, ConservativeHome carried an article of mine attacking a court decision which penalised a family for an accident at a children's party involving a bouncy castle. This week we have heard that Bear Grylls, the explorer and survivalist, has taken over as Chief Scout. How are these two matters related?
Grylls' introductory speech says it all. He pointed out that some 30,000 youngsters would like to become Scouts but cannot join because of the shortage of instructors. The Girl Guides have an even longer waiting list. Why? Surveys in 2003 by the Central Council for Physical Recreation (CCPR) and 2006 by the Scouts both came to the same conclusion: the principal barrier to people volunteering in the sport and adventure training field is the blame culture and the threat of being sued.
As co-chairman of the All-party Group for Adventure and Recreation in Society (ARISc), I am supporting the Campaign for Adventure in its battle to roll back the compensation culture and excessive and unreasonable health and safety legislation. The problem stems not through any act of Parliament but through a series of bad decisions by the courts between the early 1990s and in the middle of the current decade.
Let us look at one of a dozen examples which have come my way: a father accompanied his two sons on a Scout expedition to visit the popular show cave at Gaping Ghyll. The party decided to eat their picnic lunch before undertaking the guided tour and walked a short distance up a footpath to some open land. One of the Scouts noticed a cave opening across a stream and asked the Scout Leader for permission to explore it. The Leader refused permission, pointing out that caves could be dangerous. The Scout then moved away to his father and repeated the request. His father, who had heard the leader's ruling, gave permission, provided his son with a cigarette lighter for illumination and accompanied him into the cave. A short distance inside, the Scout slipped and fell 300 feet down a 'chimney' to his death.
The Father sued the Scout Association. The Judge found in favour of the claimant, stating that, as he was born in a city, he could not have been expected to recognise the dangers. He held that the Scout Leader should have prevented the father from entering the cave with his son and in failing to do so he breached his duty of care. That Scout Leader (and no doubt a number of his friends) stopped devoting his spare time to the Scout movement.
There is however some good news. The bouncy castle case which I wrote about last time finally went to the Court of Appeal where it was overturned. Indeed, Roy Amlot QC, who is a former chairman of the Bar Council as well as an accomplished mountaineer and skier, told the ARISc group that it is one of four such cases that have been overturned in the Court of Appeal over the last two years.
Furthermore, Andrew Caplan, the legal adviser to the Scouts, told us at the same meeting that he had won two cases in the lower courts, making use of the Compensation Act which the Government introduced under pressure from our campaign in 2006.
Better still, David Cameron is pledged to go much further. In 2007 he put David Willetts in charge of a taskforce of MPs and outsiders studying problems affecting children and young people and I was asked to write one of a group of papers as part of that. A full copy of the paper is available as a PDF here.
The most important recommendation of my paper was to abolish negligence claims for sport and adventure training, where individuals or their parents had signed a certificate to say that they recognised that the activity was hazardous. Instead only a claim for "reckless disregard" would be allowed. This has a much higher standard of proof. This approach has been adopted in most American states. Several Australian states have moved in a similar direction.
I was delighted when first David Willetts, and then David Cameron himself, announced that an incoming Conservative government would make this crucial change.
Children need opportunities to learn to take and manage risks. If we allow those public-spirited individuals who organise adventurous activities, whether volunteers or professionals, to be undermined by the compensation culture, it is children and young people who will miss out. The less adventurous will sit in front of televisions and Playstations, contributing to the rising trend in obesity. The more adventurous will find their own ways of taking risks, many of them much more hazardous and some of them deeply antisocial.