Ian Bailey is a mountain bike instructor and has sent us this reaction to the recent court ruling about a rider who was injured while on a skills course. The instructor was deemed liable and the rider has been awarded damages for his injuries.
So the unthinkable has happened…
The solicitor who fell off his bike while being coached has successfully claimed damages worth £3 million on the premise that it was 80% the fault of his instructor that he crashed.
There’s a predictable degree of vitriol being fired at the individual on message boards of the mountain bike press. After all, from the point of view of us bikers we all fall off our bikes, most of us get injured at some point, sometimes seriously, and get up, get to hospital, accept that bad luck or bad technique was to blame and get on with our lives. Unfortunately, this person and the ruling judge saw it differently and a potentially industry changing precedent has been set. While largely agreeing with the anger I have a vested interest in this outcome and so need to explore it further to understand the possible ramifications.
I’m a professional bike coach and as such make my living by improving the way people ride bikes. I observe, analyse, give feedback, video, tweak technique and use all sorts of tried and tested processes to get the best out of clients. A big part of the job is also encouraging them to push their limits, to gain confidence and expand their mental boundaries, allowing them to realise the potential of their new found skills.
Another key aspect of my job role is to ensure safety as far as humanly possible, helping make decisions for riders who may not be as aware of potential dangers through their lack of experience. So what I do is choose suitable venues, build up gradually, dynamically risk assess, talk them through features and observe them from all angles, draw lines for them to follow, demonstrate the section myself and then vitally always, ALWAYS put the decision whether to attempt something firmly in their court.
Now I’ve only got as much information on this case as anyone else who has read the articles online but the salient points I picked out were these:
1) The rider claimed to have years of experience
2) The rider had already attempted the line once and was back for a second attempt
3) The rider claimed they were placed under undue pressure to re-attempt at a faster speed
Now what this clearly says to me is that there is no possible way that the rider was tricked into doing something that they were unaware of but, playing devil’s advocate here, they felt they were under big pressure to re-attempt. I simply can’t fathom personally how a grown adult can claim to have been bullied into doing something like this but I wasn’t there and therefore have to accept that the judge was simply pitting one man’s word against the other. It’s extremely difficult to disprove that a person felt a certain way and so the judge seemingly had to accept the rider’s version of events.
So what does this mean for me, other coaches and the UK mountain bike coaching industry?
So far, the implications are unknown. Almost certainly insurance premiums may rise but more worryingly for me is the thought that we may have to temper our styles and behaviours to the detriment of the coaching.
When teaching prospective bike guides and coaches I always talk about the safety to fun ratio. What this means is that whenever running a session the instructor is walking a very subtle and fine line where abilities are pushed for the sake of progress and enjoyment, but safety isn’t excessively compromised. The key word here is ‘excessively’ because at the heart of it there is no possible way of guaranteeing safety 100% and even if we could totally mitigate risk then it would remove the essential fear factor and buzz which for many people is an integral part of why we ride.
I’ve never finished a session with the client thanking me for making it feel completely safe! I’ve finished hundreds of sessions with clients buzzing with their own sense of achievement after hitting a drop or nailing a section they never deemed possible. I’ve guided them through the process to be successful but once they make the decision to hit a feature there’s very little I can do to stop them. If they subsequently crash and get hurt, all I can really do is be happy in myself that they went in with all the knowledge required so that regardless of anything they can’t blame me.
The thought that there are people out there who seek blame for their own actions fills me with dread but is an unfortunate facet of 21st century society. Increasingly many people seem unable to accept the consequences of their own action and decisions, turning to litigation rather than self-reflection.
I’ve already had to make adjustments. My disclaimer has added more lines regarding self-responsibility and accountability and sadly I’ve also found myself deliberately holding back from advancing riders as far or as fast as they may be capable for the sake of their possible self-preservation. This is the aspect that really saddens me, having to feel mildly suspicious of people who I really enjoy working with on the off chance that they are the blaming type.
I’ve had people get hurt during my sessions, bones have been broken, helmets cracked and numerous crashes had. The most gratifying thing for me is that without fail, every person who has been hurt while out with me has subsequently been back for more coaching once healed or contacted me to thank me for the session and express how much they enjoyed it despite the unplanned early finish. This is testament to the mindset of the vast majority of people out there for whom accidents are simply unfortunate occurrences and blame is irrelevant. There will always be exceptions to this rule and so I, and the other instructors and guides I train will have to remain professional as ever while maybe edging the fun:safety ratio across a few notches.
Let’s not forget that a man has permanently lost the ability to walk. While we may consider his subsequent actions to be pretty abhorrent, let’s get past that and instead of abusing him, put our energies into supporting the instructor who’s life has also been turned upside down as a result of an accident that nobody intended or wanted to happen. We never want to hurt anyone but as long as people seek to be coached on bikes, there will always be riders falling off while purportedly being under the care of others. Three million quid won’t allow that man to ever walk again and anger towards him won’t really help us feel any better about the outcome, I just hope that Pandora’s Box hasn’t been flung open.
Agree with all of the above. I dont coach, im not good enough, i have been coached and i have introduced people (friends and colleagues) to our sport. And occasionally taken them to a&e, this has made even me think about how much personal responsibility i have. Lets hope some reason prevails, or we’ll all be on family trails just in case.
I guess it means all coaches probably ought to have gopros permanently on, for legal protection…
Just pondering, might the student have known it wasn’t really the instructor’s fault, but figured that he would benefit from financial support in future, and as the instructor was insured, it was worth trying. Can’t guarantee the thought wouldn’t cross my mind in that situation.
I imagine the judge, faced with a person who’s suffered such significant and permanent injuries, and given it’ll be one word against another regarding the events etc, may have decided to award (what might be viewed by some as) generously to the claimant.
Bloke in a wheelchair / faceless insurers scenario.
A good article by Ian and sensible responses from mountainsofsussex and Cheeky Monkey, I am on Singletrack, aren’t I? 😉
After a case like this if I was an Instructor I would not take a session without making sure that everything I did was recorded. It would no longer be a one word against another scenario if a Judge can just see and hear everything that the instructor said, did or didn’t do.
Nobody really knows bar the claimant/plaintiff and the Instructor as to who was to blame, and there’s is still a good chance that neither of them think that any blame should fall on them. A recording of events though would remove a lot of the ambiguity.
Good to see ads for solicitors popping up alongside this article.
Many years ago I did a one week Kayaking course at Glenmore Lodge. If I had been shown on the first day the things I would do on the seventh I would have gone straight home, but on that 7th day I did big frightening rapids and falls with great enjoyment. More recently on a mountain bike skills course I backed off several obstacles that other participants completed: There was no “bullying” to try them, but the social pressure to give it a go was immense and difficult to resist, and had I been younger and more concerned about what people think about me I might have pushed too hard.
The information I have read does not disclose any evidence given by expert witnesses. Cases involving medical accidents and mountaineering accidents have shown the importance of courts having access to expert witnesses able to explain what is reasonable and what is not. It is inevitable that cases will arise from time to time, and availability of active and experienced instructors to act as expert witnesses will help courts come to a reasonable decision. Some of you who work as instructors must put yourself forward, remembering that the law requires the expert witness to be for the court and not one side or the other.
For most of us a 628 word newspaper article is all we know of this case (the judge hopefully had more to go on). As such can we really reach any meaningful conclusions?
What we do know is that two men have had their worlds’ ripped apart, one of whom will never walk again. Let’s assume they are both decent human beings who deserve sympathy and understanding.
If anyone wants to read the judgment, it’s here:
http://www.bailii.org/ew/cases/EWHC/QB/2016/2798.html
Bit hard to take a side in this with such limited information. I can understand a permanently paralyzed person taking action to support themselves in the future, but I can not see how it is 80% the instructors fault.
Now I do not know the instructor, and he may have an ‘aggressive’ training style, but as an adult you have to be responsible for your own course of action and just saying ‘Nope that’s too technical for me’ is not hard.
There is a current case of a girl paralyzed in a horse riding accident that has some parallels to this, I can see the only winners in this judgement is the insurance companies who are going to hike policies heavily for trainers.
I run a coaching business and the judgement is an interesting read.
I believe that the two main points being that as an adult you should be able to make a judgement yourself and that the very very act of swinging your leg over a bike is a dangerous thing and should be carefully considered. I hope that this sets precedence for all of our future riding and cpd and that both parties are now able to move on with their lives.
“The very very act of swinging your leg over a bike is a dangerous thing and should be carefully considered.”
I’m not sure if this still applies, but a few years ago at an IMBA conference I was told that the sport with the highest number of reported accidents is… cricket.
All physical activity carries a risk, but it pales in comparison with the health risks of sitting on your arse all day.
“If anyone wants to read the judgment, it’s here:
http://www.bailii.org/ew/cases/EWHC/QB/2016/2798.html”
A fascinating read though sad to bear in mind that some poor sod is now wheelchair bound and the instructor et al have probably gone through an emotional wringer.
Might be a good idea to re-consider this article and the contents in light of the very detailed and thorough information in the judgement. Maybe then something with some properly useful and substantial points could be produced that might be to everyone’s benefit. As it stands coverage so far just looks variously a bit knee-jerk, overly emotional, biased, victim-blaming and uninformed.
There some really useful and important things here. I hope STW can do it justice.
This is why there is liability insurance. Madness to be running a business without it, irrelevant of fault as it is then up to the insurance companies to sort any claims out. I’m sure most of us if we became paralyzed and there was an ability to claim would do so. This is just part of running a business. Writing in disclaimers in your T&C’s means nothing in law apart from discouraging claims. Liabilities by hurt customers has been going on for years and years in the outdoor sports world and business as a whole. It’s nothing new and there are numerous insurance products to cover instructors.
I wrote the article and have since had the benefit of reading the full judgement as well as the other judgement (skiing one) that was used as part of a precedent. My overall opinion remains similar regarding the outcome but it has brought up some interesting points. I was amazed that the opinions of one technical expert were largely ignored whilst another was totally accepted, particularly as some of the opinion he gave was plainly wrong. As a coach of many years I can happily say that if a man has been riding bikes for many years and can operate his brakes normally then just because he is in a slightly more technical scenario he doesn’t lose all ability to brake. However, having said this, I do remember from leading kids groups way back in the day that they did have the tendency to ‘death grip’ the bars through fear when going downhill and sometimes when the brain is under duress it can override everything you know including all common sense.
There is clearly more that the instructor could have done to pre-scope the section. Walking the line, viewing from all angles, ‘inspirational demos’ that demonstrated both line and desirable speed. Also, if a client has faltered on the brink of a small drop then alarm bells should’ve been ringing a bit before he hit it again. With beginners I always try to make it so that worse case scenario if they panic mid-drop they are going slow enough to just step off the back of the bike and sit on their bum. This is just an extension of the weight back, rearwards centre of gravity body position that is safest for novice riders on any drop features. The slow speed, over the bars from a height can be very dangerous, particularly for people with no experience of how to crash (which is an experiential skill in itself).
Having established all this and accepted that the instructor maybe didn’t do enough pre-work, for me the most important point is still that the claimant made the decision to re-ride the feature. This was 100% his decision, made under no duress and backed up by the other witnesses. The instructor may not have done enough to talk him out of it or prepare him for attempt number two but the advice given was spot on. The claimant needed to increase his speed to walking pace to keep the bike upright over the drop. Unfortunately, this was twisted slightly to sound like the instructor had simply said ‘go faster’ implying he needed to launch it at speed. Pitting one man’s word against another’s four years after the incident is always going to be difficult and any grey areas were clearly jumped on by the claimant’s lawyer.
To me, the evidence points towards an accident, pure and simple. Liability should lie for the most part with the claimant for attempting to ride the feature despite supposedly feeling unprepared. The instructor can be given some blame for maybe not doing enough prep work. 80:20 in the other direction would have been a lot fairer in my opinion.
Finally, to say that it is simply a case of paralysed man versus big insurance company is missing the point somewhat. This is now a dangerous precedent further towards people accepting no responsibility for their own actions and the courts clearly take precedents very seriously. It could open up a big can of worms and possibly retrospective cases galore. On the plus side, it is a sobering reminder for all instructors of the need to have not only decent insurances but also bombproof briefing procedures and gentle progress in our sessions that is individually suited to all clients.
OK, so I may be being naive, and I’ve seen woody’s comment about writing disclaimers in your T&Cs means nothing in law, but isn’t there some sort of waiver or acceptance of risk form that people are asked to sign before attending courses like this? Does that really count for nothing in law?
In other words can you not ask people to sign to say they understand they might get injured, acknowledge the risk and waive any right to sue the instructor unless he/she is clearly shown to have caused the accident – or is that last bit exactly what was argued to have happened here?
@dan09, waivers are used in all sorts of activities but under English law they can’t protect you from being sued if you injure or kill someone as a result of your negligence. It’s explicitly excluded under the Unfair Contract Terms Act.
This might sound really unfair but it’s been part of UK law for a long time, and is an important protection of rights.
Imagine if you turned up at your first day of work in a factory, with loads of dangerous unguarded machinery, exposed wires hanging out of the wall, and packs of vicious dogs roaming the floor. If waivers were legally binding, your employer could make you sign one which effectively disbarred you from suing them if you were injured, and never have to sort out the unsafe work environment.
It’s a depressing prospect for anyone organising activities with a risk of injury, but there are sound reasons for it being that way.
In this case, despite the claimant being a legal professional he claimed not to have read the disclaimer he signed and there was therefore no way of proving that he had seen the bit about personal responsibility or opting out. This apparently made the disclaimer null and void, one of the more baffling aspects of the judgement.
If you sign a normal contract without reading it, you can still be bound by it. Disclaimers that purport to exclude liability for personal injury or death aren’t ever binding, for the reasons stated above.
There are three stages in a personal injury claim. The court has to decide whether the defendant is liable, then whether the claimant’s behaviour contributed to the injury, then the amount of damages that should be awarded.
The contents of the disclaimer wouldn’t have had any effect on the first part of the decision, and would have only been considered in relation to the second stage when contributory negligence was considered.
Ugh, I rewrote that a couple of times and it’s still a stodgy pile of word mash. If any lawyers out there can put it more clearly… (hollow laugh)