Access Changes to caves controlled by Charterhouse Caving Company?
- Thread starter ian.p
- Start date
2xw
Active member
Dear UKCaving.
My name is Will Burn. I am a direct individual member representative sitting on the BCA council. I am part of the Youth and Development working group.
Recently, I had been asked by the CCC Ltd not to publish any comment on this, and intended to honour that, but given people have been contacting me about this it is very clear they never intended to honour that themselves. Consequently, I will put here the full story of my contact with them, in as neutral tone as possible.
I was asked by a BCA member, on behalf of a 14yo, to make inquiries about access. Normally, the BCA does not get involved in local access affairs, but this particular BCA member had already contacted CCC Ltd and apparently the CSCC and had not received a satisfactory response.
I contacted Charterhouse to enquire why they banned under 18s from the caves they manage.
Right now, I will own up to several mistakes I made, which CCC complained about:
1. I misrepresented myself in my emails as a BCA officer. I am not a BCA officer. I am an direct individual member representative to council. I got confused because I'm quite new to the BCA and the structure can be difficult to understand. I am sorry.
2. Charterhouse CC were upset because I used a "challenging tone". I am the first to admit that I can be quite abrasive and direct. This is a flaw. In the future, I will promise to run emails by my colleagues in the Y&D group before sending. I will attempt to challenge people in a less challenging tone. I am sorry to anyone who was emotionally affected by my queries.
3. I told CCC that banning under 18s was discrimination, I was wrong. But I did immediately redact this.
When I contacted the CCC to ask about their age ban, I did not receive a satisfactory response. Their first reply was:
I then asked whether they could furnish me with the legal advice they received. I believed it was nationally important if it caused them to take the drastic decision to exclude young people. They replied:
I therefore contacted the landowner directly.
The CCC assert that I contacted the landowner directly before they had the chance to reply. The last email I received from the CCC secretary seemed to make it very clear he was not interested in cooperating.
I assumed that was a very clear end to our communications.
Consequently I assumed the landowners were aware that U18s were banned from parts of the national nature reserve. Both Somerset Wildlife Trust and Natural England informed me that they were not aware that U18s had been banned and that they couldn't find it in the agreement.
There are two arguments CCC Ltd (and whoever advised them) has made here:
- That letting U18s underground increases landowner liability.
- That U18s can't sign contracts.
I have researched this a little bit and will address them in that order.
1. Letting U18s underground increases landowner liability.
This is false. Landowners have equal liability regardless of age. There is a lot of case law about this.
Landowner liability is covered by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984.
The 1957 Act Section 2(5) provides that there is no liability for "risks willingly accepted as his by the visitor", a common application of volenti non fit injuria.
The 1984 Act includes the same thing in Section 1(6) a good test case for which is Ratcliff v McConnell 1997 a good description of which is here http://bit.ly/2tabLfl
Whilst the 1957 act does include the statement in Section 2(3a) that:
an occupier must be prepared for children to be less careful than adults;
That is the only reference in both acts to children.
The key test case for this issue went to the House of Lords, it's called Tomlinson -v- Congleton Borough Council (2003) UKHL 47. In this case, a young man went swimming in a lake in a country park and was seriously injured. The landowner was found not liable.
The lords were very forceful in their judgement, a quote I particularly like from the case is:
"simply sporting about in the water with his friends, giving free rein to his exuberance. And why not? And why should the council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone." - Lord Scott
Following the Tomlinson case, many cases followed where the claims were dismissed. Some good ones include:
Siddorn -v- Patel (2007) EWHC 1248 - Court of Appeal
Poppleton -v- Trustees of the Portsmouth Youth Activities Committee (2008) EWCA 646 - Court of Appeal (this concerns a person injured in a fall at a climbing wall)
R. (on the application of Hampstead Heath Winter Swimming Club) -v Corporation of London (2005) 1 WLR 2930 - High Court
But I think the best and most relevant one is:
Keown v Coventry Healthcare NHS Trust (2006) EWCA Civ 39 - Court of Appeal
In the Keown case, an 11 year old boy was trespassing and climbing on a building, he fell off and was injured. Noting that the law requires occupiers to have a special regard for the safety of children the Court of Appeal concluded that the claimant had realised that what he was doing was risky and had therefore consented to the risk of his own injury - and that therefore the occupier was not liable for failing to prevent this accident
This is in the case of a trespass where no warning signs were posted warning of a risk - the eleven year old was still deemed to consent to the risk of his own injury.
Consequently, I firmly believe that a landowner/access body who makes any young person sign a form agreeing that they understand and accept the risks (with participation statement etc) of going underground would find themselves exceptionally unlikely to be found liable.
This situation is unlikely to happen, where landowners/access bodies let U18s go underground on their own - permission giving bodies that let U18s underground accompanied by a parent or someone appointed en loco parentis by a parent (such as the situation with other caves) are probably "doubley safe!".
I have heard people express that permits are "not worth the paper they are written on" but I believe this is not true. I think this perception of the risk of liability is perhaps quite old, unfounded, and plumped by a media who insist on a claims culture that isn't really there. The landowner/access body/caving community anxiety about legal action is likely far out of proportion to the actual risk of legal action occurring (never mind it actually succeeding!) A good, and quite long, discussion of landowner anxiety as it related to outdoor access can be found by reading:
BENNETT, L. and CROWE, Lynn (2008). Landowners' liability? is perception of the risk of liability for visitors accidents a barrier to countryside access? Project Report. Sheffield, Countryside recreation network.
Some discussions I have had personally and viewed on UKCaving insist that landowners are not bothered about whether an action will succeed - rather, they are worried that any action may proceed at all, insisting that the costs of defending oneself are particularly onerous and could put landowners off accepting visitors. I think this is a valid concern. They often note the case of CRADDOCK V (1) DR J A FARRER, (2) THE SCOUT ASSOCIATION summarized here http://bit.ly/2BVCyyt . In this case Dr. Farrer was found not liable but people mention the costs of his defence were large and obviously the stress of such a defence over several years was, without a doubt, horrible to endure. However it must be noted that this occurred before the landmark Tomlinson case in 2003, and that if the same case were to occur now it would occur against the background of the last 15 years of case law post-Tomlinson.
I should think this would be a fairly open and shut opinion. Thousands of premises operate allowing U18s to consent to dangerous (potentially life changing) sports and recreation activities. Good examples include ice skating rinks, climbing walls, theme parks, any council park that has a playground, laserquest/similar, escape rooms etc. Landowners have liability and they should be insured appropriately, but to convince me that allowing U18s increases liability over that of an adult doing the same activity would require some pretty solid evidence to the contrary of what I have here.
The BMC has an excellent leaflet on this which I think applies equally to caving found here:
https://www.thebmc.co.uk/Handlers/DownloadHandler.ashx?id=944
2. Under 18s can't sign contracts
My opinion is that this is complete rubbish as kids do this all the time. Parents do it all the time on their behalf - we all remember taking hundreds of paper slips home from school for parents to sign.
On this, I got the opinion of a senior lecturer in law at Sheffield Hallam, who has 17 years experience in dealing with landowner liabilities but is also a fairly keen advocate of open access. He is not insured to give advice practicing as a solicitor but I believe none of the people who have provided the legal advice that has fuelled this discussion are either. His opinion is equally as valid as the folks advising CCC
His opinion on this matter was this:
Hi Will,
That stance does indeed sound bogus. I have to be careful (as a ex-lawyer who hasn't practised for over 10 years now and who isn't insured to give legal advice) so I can't give you the formal legal opinion that you are seeking here.
But I'd point out that there isn't a blanket ban on children not being able to enter into contracts under the age of 18 - they are entitled to commit to being bound by 'contracts for necessities' (the classic textbook examples here is that, say, a teenager could be bound by an agreement to pay for the ice cream he's just asked the ice-cream man to give him, but he couldn't be held liable to complete on the purchase of a ?20 Million mansion house that he'd purported to buy). So, it's a contextual thing that the law is doing here - thinking whether the subject matter of the contract is something that a child would normally be involved with, as a feature of childhood life. Arguably educational experiences are a necessary and fairly standard feature of childhood life. Whether the law would regard education and recreational benefits of caving as falling within that is perhaps the moot point for you to seek legal advice on.
From a more practical point of view I think there's scope to argue that society already does recognise that adventurous sport is a feature of childhood life, and provided for by frequent practice across thousands of leisure businesses who deal with under 18 year-olds and non fit injuria consent either by:
1) getting the child to sign an acknowledgment of the risk and the need to listen to instructions / behave well; and/or
2) get the parents to sign on their behalf.
I fail to see why the parents legally speaking can't give valid consent on behalf of their children. They do so each day by signing thousands of school 'parental consent' slips, or in filling in waiver forms for their child to participate in equally dangerous (life-changing accident potential) activities like trampolining, ice skating, go-karting and so forth. Patently it is also possible for parents to consent to their children running very high risks when agreeing on their behalf to major surgery.
As I say - the above's not the 'letter-of-advice-you-can-show' that you are seeking, but hopefully it will embolden you to go ahead and get something similar in chapter and verse from a law firm"
The BCA considers this important enough to get independent legal advice. I must stress now that this should not become a CCC bashing issue. The CCC made the most sensible decision possible with the information they had available. I genuinely believe that if they could have avoided banning under 18s then they would have. I look forward to working with them on this issue.
If anyone would like to chat about this, please DM me and I will give you my email and phone number.
My name is Will Burn. I am a direct individual member representative sitting on the BCA council. I am part of the Youth and Development working group.
Recently, I had been asked by the CCC Ltd not to publish any comment on this, and intended to honour that, but given people have been contacting me about this it is very clear they never intended to honour that themselves. Consequently, I will put here the full story of my contact with them, in as neutral tone as possible.
I was asked by a BCA member, on behalf of a 14yo, to make inquiries about access. Normally, the BCA does not get involved in local access affairs, but this particular BCA member had already contacted CCC Ltd and apparently the CSCC and had not received a satisfactory response.
I contacted Charterhouse to enquire why they banned under 18s from the caves they manage.
Right now, I will own up to several mistakes I made, which CCC complained about:
1. I misrepresented myself in my emails as a BCA officer. I am not a BCA officer. I am an direct individual member representative to council. I got confused because I'm quite new to the BCA and the structure can be difficult to understand. I am sorry.
2. Charterhouse CC were upset because I used a "challenging tone". I am the first to admit that I can be quite abrasive and direct. This is a flaw. In the future, I will promise to run emails by my colleagues in the Y&D group before sending. I will attempt to challenge people in a less challenging tone. I am sorry to anyone who was emotionally affected by my queries.
3. I told CCC that banning under 18s was discrimination, I was wrong. But I did immediately redact this.
When I contacted the CCC to ask about their age ban, I did not receive a satisfactory response. Their first reply was:
I then asked whether they could furnish me with the legal advice they received. I believed it was nationally important if it caused them to take the drastic decision to exclude young people. They replied:
I therefore contacted the landowner directly.
The CCC assert that I contacted the landowner directly before they had the chance to reply. The last email I received from the CCC secretary seemed to make it very clear he was not interested in cooperating.
I assumed that was a very clear end to our communications.
Consequently I assumed the landowners were aware that U18s were banned from parts of the national nature reserve. Both Somerset Wildlife Trust and Natural England informed me that they were not aware that U18s had been banned and that they couldn't find it in the agreement.
There are two arguments CCC Ltd (and whoever advised them) has made here:
- That letting U18s underground increases landowner liability.
- That U18s can't sign contracts.
I have researched this a little bit and will address them in that order.
1. Letting U18s underground increases landowner liability.
This is false. Landowners have equal liability regardless of age. There is a lot of case law about this.
Landowner liability is covered by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984.
The 1957 Act Section 2(5) provides that there is no liability for "risks willingly accepted as his by the visitor", a common application of volenti non fit injuria.
The 1984 Act includes the same thing in Section 1(6) a good test case for which is Ratcliff v McConnell 1997 a good description of which is here http://bit.ly/2tabLfl
Whilst the 1957 act does include the statement in Section 2(3a) that:
an occupier must be prepared for children to be less careful than adults;
That is the only reference in both acts to children.
The key test case for this issue went to the House of Lords, it's called Tomlinson -v- Congleton Borough Council (2003) UKHL 47. In this case, a young man went swimming in a lake in a country park and was seriously injured. The landowner was found not liable.
The lords were very forceful in their judgement, a quote I particularly like from the case is:
"simply sporting about in the water with his friends, giving free rein to his exuberance. And why not? And why should the council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone." - Lord Scott
Following the Tomlinson case, many cases followed where the claims were dismissed. Some good ones include:
Siddorn -v- Patel (2007) EWHC 1248 - Court of Appeal
Poppleton -v- Trustees of the Portsmouth Youth Activities Committee (2008) EWCA 646 - Court of Appeal (this concerns a person injured in a fall at a climbing wall)
R. (on the application of Hampstead Heath Winter Swimming Club) -v Corporation of London (2005) 1 WLR 2930 - High Court
But I think the best and most relevant one is:
Keown v Coventry Healthcare NHS Trust (2006) EWCA Civ 39 - Court of Appeal
In the Keown case, an 11 year old boy was trespassing and climbing on a building, he fell off and was injured. Noting that the law requires occupiers to have a special regard for the safety of children the Court of Appeal concluded that the claimant had realised that what he was doing was risky and had therefore consented to the risk of his own injury - and that therefore the occupier was not liable for failing to prevent this accident
This is in the case of a trespass where no warning signs were posted warning of a risk - the eleven year old was still deemed to consent to the risk of his own injury.
Consequently, I firmly believe that a landowner/access body who makes any young person sign a form agreeing that they understand and accept the risks (with participation statement etc) of going underground would find themselves exceptionally unlikely to be found liable.
This situation is unlikely to happen, where landowners/access bodies let U18s go underground on their own - permission giving bodies that let U18s underground accompanied by a parent or someone appointed en loco parentis by a parent (such as the situation with other caves) are probably "doubley safe!".
I have heard people express that permits are "not worth the paper they are written on" but I believe this is not true. I think this perception of the risk of liability is perhaps quite old, unfounded, and plumped by a media who insist on a claims culture that isn't really there. The landowner/access body/caving community anxiety about legal action is likely far out of proportion to the actual risk of legal action occurring (never mind it actually succeeding!) A good, and quite long, discussion of landowner anxiety as it related to outdoor access can be found by reading:
BENNETT, L. and CROWE, Lynn (2008). Landowners' liability? is perception of the risk of liability for visitors accidents a barrier to countryside access? Project Report. Sheffield, Countryside recreation network.
Some discussions I have had personally and viewed on UKCaving insist that landowners are not bothered about whether an action will succeed - rather, they are worried that any action may proceed at all, insisting that the costs of defending oneself are particularly onerous and could put landowners off accepting visitors. I think this is a valid concern. They often note the case of CRADDOCK V (1) DR J A FARRER, (2) THE SCOUT ASSOCIATION summarized here http://bit.ly/2BVCyyt . In this case Dr. Farrer was found not liable but people mention the costs of his defence were large and obviously the stress of such a defence over several years was, without a doubt, horrible to endure. However it must be noted that this occurred before the landmark Tomlinson case in 2003, and that if the same case were to occur now it would occur against the background of the last 15 years of case law post-Tomlinson.
I should think this would be a fairly open and shut opinion. Thousands of premises operate allowing U18s to consent to dangerous (potentially life changing) sports and recreation activities. Good examples include ice skating rinks, climbing walls, theme parks, any council park that has a playground, laserquest/similar, escape rooms etc. Landowners have liability and they should be insured appropriately, but to convince me that allowing U18s increases liability over that of an adult doing the same activity would require some pretty solid evidence to the contrary of what I have here.
The BMC has an excellent leaflet on this which I think applies equally to caving found here:
https://www.thebmc.co.uk/Handlers/DownloadHandler.ashx?id=944
2. Under 18s can't sign contracts
My opinion is that this is complete rubbish as kids do this all the time. Parents do it all the time on their behalf - we all remember taking hundreds of paper slips home from school for parents to sign.
On this, I got the opinion of a senior lecturer in law at Sheffield Hallam, who has 17 years experience in dealing with landowner liabilities but is also a fairly keen advocate of open access. He is not insured to give advice practicing as a solicitor but I believe none of the people who have provided the legal advice that has fuelled this discussion are either. His opinion is equally as valid as the folks advising CCC
His opinion on this matter was this:
Hi Will,
That stance does indeed sound bogus. I have to be careful (as a ex-lawyer who hasn't practised for over 10 years now and who isn't insured to give legal advice) so I can't give you the formal legal opinion that you are seeking here.
But I'd point out that there isn't a blanket ban on children not being able to enter into contracts under the age of 18 - they are entitled to commit to being bound by 'contracts for necessities' (the classic textbook examples here is that, say, a teenager could be bound by an agreement to pay for the ice cream he's just asked the ice-cream man to give him, but he couldn't be held liable to complete on the purchase of a ?20 Million mansion house that he'd purported to buy). So, it's a contextual thing that the law is doing here - thinking whether the subject matter of the contract is something that a child would normally be involved with, as a feature of childhood life. Arguably educational experiences are a necessary and fairly standard feature of childhood life. Whether the law would regard education and recreational benefits of caving as falling within that is perhaps the moot point for you to seek legal advice on.
From a more practical point of view I think there's scope to argue that society already does recognise that adventurous sport is a feature of childhood life, and provided for by frequent practice across thousands of leisure businesses who deal with under 18 year-olds and non fit injuria consent either by:
1) getting the child to sign an acknowledgment of the risk and the need to listen to instructions / behave well; and/or
2) get the parents to sign on their behalf.
I fail to see why the parents legally speaking can't give valid consent on behalf of their children. They do so each day by signing thousands of school 'parental consent' slips, or in filling in waiver forms for their child to participate in equally dangerous (life-changing accident potential) activities like trampolining, ice skating, go-karting and so forth. Patently it is also possible for parents to consent to their children running very high risks when agreeing on their behalf to major surgery.
As I say - the above's not the 'letter-of-advice-you-can-show' that you are seeking, but hopefully it will embolden you to go ahead and get something similar in chapter and verse from a law firm"
The BCA considers this important enough to get independent legal advice. I must stress now that this should not become a CCC bashing issue. The CCC made the most sensible decision possible with the information they had available. I genuinely believe that if they could have avoided banning under 18s then they would have. I look forward to working with them on this issue.
If anyone would like to chat about this, please DM me and I will give you my email and phone number.
aricooperdavis
Moderator
Excellent research Will, that looks very promising. I understand that the CCC is awaiting the results of the BCA's enquiries, but are in principle happy to enable access for young people, which I'm very pleased to hear.
Dave Tyson
Member
I think this is very worrying. If the landowner is happy with under 18's then I see no reason for the access controlling body to opt for a more restricted regime. After all, the BCA constitution states:
"4.6. Where caving bodies have control of access delegated to them by the owners, such access should be obtained and granted as freely as possible for all responsible cavers, within the terms of those agreements. When obliged to make new agreements, the appropriate body should endeavour to ensure that this freedom is maintained or improved."
Given that the age profile of cavers is increasing something needs to be done to increase the appeal and ease access for younger people - without them numbers will decline.
Dave
"4.6. Where caving bodies have control of access delegated to them by the owners, such access should be obtained and granted as freely as possible for all responsible cavers, within the terms of those agreements. When obliged to make new agreements, the appropriate body should endeavour to ensure that this freedom is maintained or improved."
Given that the age profile of cavers is increasing something needs to be done to increase the appeal and ease access for younger people - without them numbers will decline.
Dave
2xw
Active member
Dave don't attribute to malice and all that. Its not a landowner in the sense of a single person, but a large organisation. It's entirely reasonable to also suspect that CCC would have discussed it at length with them but the person I spoke to didn't know.
However, I would also be keen to bring attention back to the Wessex letter about the access approach by SWT in other caves.
However, I would also be keen to bring attention back to the Wessex letter about the access approach by SWT in other caves.
PeteHall
Moderator
I understand from conversation with ccc officers that the advice "from the BCA" relates to a post made by Bob Mehew on this forum, who at the time was the BCA legal and insurance officer. As far as I am aware, this was not formal advice from the BCA.
If I am wrong, someone please correct me.
If I am wrong, someone please correct me.
Having read all the posts on this topic, I just have to laugh. 
I have keys to most Mendip caves including GB. I never ask the age of anybody in my party. So long as they can walk to the entrance they are fit enough to go down the cave. I not only have the latest key but also the password.
PS want to buy a duplicate key - cheap?
I have keys to most Mendip caves including GB. I never ask the age of anybody in my party. So long as they can walk to the entrance they are fit enough to go down the cave. I not only have the latest key but also the password. PS want to buy a duplicate key - cheap?
PeteHall
Moderator
The draft minutes from the recent CCC AGM have now been published as attached. These have been circulated to the club reps, who should have passed them out to members.
A final copy should be issued by the end of the months following any comments (which are probably best returned via your club rep )
A final copy should be issued by the end of the months following any comments (which are probably best returned via your club rep
)