CHAPTER 13

LEGAL FRAMEWORKS OF HEALTH AND SAFETY

INTRODUCTION This reading explores the subject of the law of tort which underpins the regulation of health and safety in sport and tness settings. Tort is an old French word meaning a wrong. The law of tort aims to protect individuals from harm by dening the circumstances in which individuals have a duty to think about other people. The duty is xed by law and affects everybody. When a tort is committed and the duty is breached or broken, then a claim for damages may result. Tort is a wide area of law covering the law of negligence, occupiers liability, nuisance and trespass. This chapter will only consider negligence and occupiers liability. First, though, some examples might help to explain the importance of tort: All road users have a duty not to drive negligently, so the car driver who opens his car door without checking and knocks a cyclist off her bike causing her injuries may be liable to compensate the cyclist for her injuries. The swimming teacher who is negligent in ensuring that his lesson on learning how to dive is conducted safely may be liable for accidents that occur during the lesson. The gym manager who fails to check that the gym equipment is checked and maintained according to the manufacturers guidelines may be liable to a club member who is injured whilst using a faulty piece of equipment. Having established that a tort is a civil wrong, we can explore the importance of the law of tort as underpinning health and safety requirements by looking in more detail at the particular torts of negligence and occupiers liability.

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NEGLIGENCE Negligence concerns situations where the claimant (the person who is injured) suffers those injuries as a result of another person breaching their legal duty to take care. In its everyday use the word negligence means, for example, carelessness, forgetfulness or thoughtlessness. However, as these are somewhat vague and subjective, the courts have to be more precise and objective. Therefore in order to pursue a claim of negligence the law of negligence says that the claimant must prove: 1 2 3 that the defendant (the person alleged to have caused the injury) owed the claimant a duty of care; that the defendant broke that duty of care; and that the claimant suffered injuries as a result of the breach of duty of care.

Going back to our earlier example of the gym member injured by the faulty equipment, the claimant will have to prove that the gym manager owed them a duty of care in being the person responsible for the gym, that the manager breached that duty by failing to check the equipment properly and that the injuries the member suffered were as a result of that failure. The gym member must realise that all three elements have to be proved, otherwise the claim will fail. Each of these elements is considered in turn below.

The duty of care owed to the claimant The duty of care owed by those working in sport and tness to those who use their services underpins the regulation of the sector. Typical examples of services supplied are instructional activities and/or use of facilities. For example, in the tness industry it is embedded in the code of practice of the Fitness Industry Association. The Code of Practice represents an important Statement to Government and other regulatory bodies that we are a professional industry that is capable of self-regulation and takes its operation and duty of care seriously. (Fitness Industry Association, 2007)

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The duty of care is a legal concept which determines the circumstances in which one person is liable to another in negligence. The concept originated in the famous case of Donoghue v. Stevenson ([1932]S.C.(H.L.)31 AllER Rep1).

BOX 13.1: DONOGHUE v. STEVENSON One August evening in 1928 Mrs May Donoghue and her friend went to an Italian caf in Paisley near Glasgow. Mrs Donoghues friend bought her a bottle of ginger beer. The bottle (as was usual in the 1920s) was made of opaque glass. As Mrs Donoghue poured out the ginger beer, a decomposing snail fell out of the bottle. Mrs Donoghue became ill and wanted to sue the manufacturer for her illness/injury. In considering her claim, the House of Lords had to decide whether or not the manufacturer of a drink was under any legal duty to the ultimate consumer to ensure that the drink did not contain any defect that might cause an injury. The decision of the House of Lords that the manufacturer did owe a duty of care to Mrs Donoghue went on to form the basis of the law of negligence and to determine the extent of the duty of care that we each owe to other people. Lord Atkin dened those to whom we owe a duty of care in the neighbour principle. He said: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. He went on to dene neighbours as persons who are so directly affected by my act that I ought reasonably to have them in contemplation.

In our earlier examples, then, the swimming teacher owes a duty of care to those under his supervision, and the gym manager owes a duty of care to the club members using the gym. The phrase reasonably foresee is important, and needs further examination. Reasonably foresee means quite simply that the defendant could reasonably envisage a person being injured as a result of the defendants actions. The case of Bourhill v. Young ([1943] AC92) illustrates this clearly. John Young, a motorcyclist who was riding negligently, collided with a car and was killed.

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Mrs Euphemia Bourhill, the claimant, was getting off a tram when she heard the sound of the collision some 50 feet away and saw the blood on the road. She was pregnant at the time and was so shocked by what she saw that she suffered a miscarriage. The House of Lords decided that John Young did not owe her a duty of care, as he could not have reasonably foreseen that the accident caused by his negligence would cause her to suffer such injuries, i.e. the miscarriage.

A breach of duty Having proved that the defendant owed the claimant a duty of care, the claimant must then prove that the defendant went on to break or breach that duty of care owed to him or her. This means that the court must look at the evidence and decide whether or not the defendant did something they ought not to have done, or failed to do something that they ought to have done. Our gym facility manager would appear to have failed to have done something that he should have done. In making this decision the courts are looking to see if the defendant has fallen below the standard of behaviour expected of someone undertaking the activity concerned. So, with our example, the court would need to consider whether the facility manager fell below the standard expected of managers in those positions. In this consideration, the standard is an objective one. It does not matter if the facility manager considers that his conduct is ne; the standard is that which could be expected of a reasonable person in that role. The standard of care in negligence does not amount to an absolute duty to prevent injury. Instead, the duty amounts to what a reasonable person would do to prevent harm occurring.

THE REASONABLENESS TEST In deciding on what would be reasonable behaviour in each circumstance, the courts consider a number of factors. These may include special characteristics of the defendant; special characteristics of the claimant; the magnitude of the risk; and how far it is practical to prevent the risk. In considering the defendant, the court considers such factors as whether the defendant has a special skill or profession. If the defendant has a profession or a special skill (such as our facility manager) the law will expect that person to exhibit the standard of competence usually to be expected of an ordinary skilled person when doing their job properly. That would amount to reasonable behaviour.

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The same standard is applied whether the defendant is experienced or inexperienced. In the case of Wilsher v. Essex Area Health Authority ([1988] 1 AllER 871) a very inexperienced junior doctor mistakenly inserted a catheter into a vein. The Court of Appeal said that he could not escape liability because of his lack of experience. The reasonable behaviour/standard was that expected of any doctor rather than the particular doctor who made the mistake. In Nettleship v. Weston ((1971) CA 2 QB691) it was decided that a learner driver is judged against the standard of a reasonably competent driver. Mrs Lavinia Westons inexperience as a driver could not excuse the fact that her driving fell below the standard expected of a competent driver. The gym manager who fails to check the equipment properly cannot escape liability by saying that he was only appointed a month ago. He would be expected to carry out his duties to the standard expected of a competent gym manager. In considering the claimant, the court expects the reasonable person to take account of any special characteristic or incapacity which increases the risk of harm. This would, for example, be of particular importance to those responsible for weights rooms and gyms. In Paris v. Stepney Borough Council (1951), Mr Paris, who was blind in one eye, was employed as a garage mechanic. One day when he was welding without wearing goggles, a piece of metal ew up and damaged his good eye. The court decided that knowing of his disability his employer should have taken extra care to provide him with goggles, because of the potentially serious consequences of such an accident as he only had sight in one eye. The courts will also consider the magnitude of the risk, i.e. the chance of damage occurring and the seriousness of that damage. This is illustrated clearly in the case of Bolton v. Stone (1951). The claimant, Miss Stone, sued Cheetham Cricket Club when she was hit by a cricket ball whilst standing on a road adjoining the cricket ground. The court decided that, given the circumstances in which this occurred, the cricket club was not negligent. The ball had travelled over a 17 foot fence and a distance of some 100 yards. The ball had only been hit out of the ground six times in the past 30 years. The court will also consider how far it is practical to prevent the risk. So, in the Bolton v. Stone case the court decided that the cost and complexity of building such a high fence or even constructing a dome over the whole cricket ground were completely out of proportion to the degree of risk. The standard of care expected is that which a reasonable person would undertake to prevent harm occurring. The idea of the reasonable man as described by Baron Alderson in Blyth v. Birmingham Waterworks (1856 11EXCHG 781) is

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central to an understanding of whether an act or omission has amounted to a breach of the duty of care. In this case, Mr Blyth sued Birmingham Waterworks for negligence when his house was ooded during a severe frost when the plug failed on a hydrant. The court decided that it was not reasonable to have expected the Waterworks to have anticipated such a severe frost. Baron Alderson said: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

Causation Having proved that the defendant breached the duty of care owed to the claimant, the claimant must now prove that the injuries suffered were caused by the breach of duty. The claimant cannot sue in negligence just because the defendant has acted negligently. The negligent act or omission must have resulted in injuries to the claimant. The law does not make us liable ad innitum, but applies tests to decide what losses/injuries were actually caused by the defendant. The rst test to be applied is called the but for test. This simply means asking would the claimant not have suffered the injuries but for the negligent act or omission of the defendant. The test can be seen clearly in action in the case of Barnett v. Chelsea and Kensington Hospital Management Committee ([1968]2 WLR 422 High Court). William Patrick Barnett was a night watchman on duty with two colleagues at the Chelsea College of Science and Technology. At about 5 a.m. the three men drank some tea. Immediately after drinking the tea Mr Barnett and the other men began to feel ill. At 8.00 a.m. when the day workers arrived the three men, who were still ill, drove to the casualty department of St Stephens Hospital. The men told the nurse on duty that they had been vomiting continuously since drinking the tea three hours earlier. The nurse (thinking that the men had been drinking alcohol) was hesitant as to what to do. She then phoned the medical casualty ofcer and explained what the men had told her. The doctor advised that the men should go home and go to bed and contact their own doctors. Mr Barnett returned to the College, where by 1 p.m., when he was still unwell, he was taken back to the hospital in an ambulance, but he was found to be dead on arrival. He had died of arsenic poisoning. His widow Mrs Bessie Barnett sued the hospital for negligence for failing to investigate and diagnose his condition when he rst

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went to the hospital. The defendants denied negligence, specically denying that any negligence on their part caused Mr Barnetts death. The court decided that the casualty doctor did owe a duty of care to Mr Barnett and did breach that duty by failing to examine him. However, the court then decided that the breach did not cause Mr Barnetts death. There was medical evidence that even if he had been examined it would have been too late for any treatment that would have saved his life. It therefore could not be said that but for the hospitals negligence he would not have died. Causation becomes more difcult to establish when there may be more than one cause of injury, with the defendants act or omission being among the causes. The courts then have to determine the operative cause (this is illustrated in Box 13.2).

BOX 13.2: WILSHER v. ESSEX AREA HEALTH AUTHORITY In the case of Wilsher v. Essex Area Health Authority ([1988]2 WLR557) the court had to decide whether the negligence of a doctor in administering too much oxygen to a premature baby resulted in his blindness, or whether the blindness was caused by any one of ve other medical conditions from which baby Martin Wilsher suffered at birth. The court decided that the negligence of the doctor in administering the excess oxygen was no more likely than any of the other medical conditions to have caused the blindness. Therefore causation was not proved.

Further problems arise in establishing causation when an intervening event occurs after the breach of duty which contributes to the claimants injuries. This intervening event is then said to have broken the chain of causation. When this happens, the defendant will only be liable for such injuries as occur up to the intervening event. This is known as novus actus interveniens, which means a new act intervenes. This can be illustrated by the case of Wright v. Lodge and Shepherd, Kerek v. Lodge and Others CA ([1993] A11 ER299) (see Box 13.3).

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BOX 13.3: WRIGHT v. LODGE AND SHEPHERD, KEREK v. LODGE AND OTHERS The defendant Miss Shepherds Mini broke down on a foggy night on an unlit stretch of the A45 dual carriageway outside Cambridge. Instead of asking her passengers to help her push the car off the road, she negligently left it on the road. An articulated lorry being driven recklessly by Mr Lodge collided with the car, injuring Miss Duncan, one of Miss Shepherds passengers. Mr Lodge then lost control of his lorry, which crossed the central reservation, where it crashed into several other cars, injuring Mr Wright and killing Mr Kerek. The court decided that Miss Shepherd was negligent in failing to get her passengers to help her push the car off the road. However, the reckless driving of Mr Lodge had broken the chain of causation, so Miss Shepherd could not be held liable for the injuries suffered by Mr Wright and the death of Mr Kerek.

Having satised the but for test, the claimant must also prove that the injuries suffered were not too remote from the defendants breach. So, the court applies the remoteness test to decide for how much of the claimants loss the defendant will be liable. The test states that a defendant will only be liable for the injuries that could be reasonably foreseen at the time of the breach. Injuries are too remote if a reasonable man would not have foreseen them. This test has become known as the Wagon Mound No. 1 test. The Wagon Mound case involved a ship loading oil in Sydney Harbour. Through the negligence of some workers, oil leaked into the water and spread to a neighbouring wharf. The oil damaged the slipway, but a few days later, ignited by sparks from welding work, the oil ignited, causing far more serious damage. The court decided that the damage to the slipway was reasonably foreseeable, but given that oil needed to be heated to a very high temperature before it would catch re, the re damage was not foreseeable. For a claimant to succeed in a claim for negligence they must satisfy the court that the defendant owed them a duty of care, that the defendant breached that duty and that the claimants injuries occurred as a result of that breach.

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OCCUPIERS LIABILITY One area of the law of tort that is particularly important for those managing sports and tness facilities is occupiers liability. This concerns the duty that those who occupy land and the buildings on the land have for the safety of others who come onto the land. For example, it would cover the possible danger from slippery oors in changing rooms, rubbish littering football pitches or the lack of adequate signs warning of danger near a boiler room. The law concerning occupiers liability is found in the Occupiers Liability Act 1957, which is concerned with people coming onto land with permission, and the Occupiers Liability Act 1984, which deals with people coming onto land without permission, i.e. as trespassers. An occupier is the person who controls the premises, i.e. the person who has enough control to allow or prevent other people entering the premises. This is illustrated by the case of Harris v. Birkenhead Corporation ([1976] 1 W.L.R. 279). Birkenhead Corporation had served a compulsory purchase order on a house, which allowed the council to take over the premises. The council knew that once houses in that area were empty they were targets for vandals but they failed to board up the house. This house was subsequently vandalised. A 4-year-old child went into the house through an unsecured door and was injured when he fell from a second-oor window. The Court of Appeal decided that the local authority was the occupier of the premises as it had the legal right to control the premises, and was in the best position to secure the property to prevent accidents. Premises are dened in the 1957 Act in section 1(3) as including land, buildings and any xed or moveable structure, including any vessel, vehicle or aircraft.

The duty of care expected of occupiers This is dened in section 2(2) of the 1957 Act, which says that The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. An interesting illustration of the duty of care is found in the case of Cunningham and others v. Reading Football Club ([1991] P1QR 141). In this case the football club was found liable as the occupier of Elm Park ground for the injuries suffered by a number of police ofcers on duty at a match because those injuries had

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resulted from the clubs failure to carry out repairs to ensure that the ground was safe. Due to the appalling dilapidated state of the football ground, the fans had been able to break off lumps of concrete, which they had thrown at the police ofcers, causing a number of injuries. In his judgment Judge Drake said, my conclusion is that the defendants are liable to the plaintiffs for breach of duty under the Occupiers Liability Act 1957. He went on to conrm that those who control football grounds remain under the clear duty to take such steps as are reasonable in all the circumstances to see that lawful visitors to their grounds spectators and others alike will be reasonably safe at those premises. It is important to note that an occupier must provide a higher standard of care for children. Section 2(3)(a) of the 1957 Act states: An occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises then the premises must be reasonably safe for a child of that age In Moloney v. Lambeth LBC ([1966] WL 23259) a 4-year-old child was injured when he fell through the balustrade on the stairs of some council ats. The court decided that the railings protecting the stairwell did not provide enough protection for a child even though an adult could not have fallen through the balustrade, so the council was liable in that it had not complied with the standard of care required for children by the Occupiers Liability Act 1957. The courts recognise that children are less able than adults to recognise danger and may not be able to read warning signs. In particular, due to their natural curiosity they may actually be lured or attracted by potential dangers. In the case of Glasgow Corporation v. Taylor ([1922]) a 7-year old child died after eating poisonous berries he had picked from a bush in a park controlled by Glasgow Corporation. The court decided that the council had breached its duty of care to the child by leaving the berries on the bush. The berries, which looked like cherries, had been an allurement to the child. An occupier may not be liable for injuries to a very young child if it would be expected that such a young child would be accompanied by someone looking after them. In those circumstances, the duty of care would amount to a warning that someone competent to look a young child would understand. In Phipps v. Rochester Corporation ([1955] IQ.B. 450) a 5-year-old boy fell and broke his leg whilst out blackberrying with his 7-year-old sister. The boy had fallen into a trench that had been dug for laying a sewer. The court decided that the defendants were not liable because, although they had failed to try to keep children away from the trench, they could presume that the responsibility for such a young child rested primarily with his parents, whose duty it was to ensure that their children did not wander about unaccompanied.

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Occupiers can protect themselves from liability by the use of warnings. Section 2(4)(a) of the Occupiers Liability Act sets out the requirements for warnings. It says that an occupier cannot escape liability by just giving a warning. The warning will only be considered adequate if it is sufcient to enable the visitor to be reasonably safe. Whether or not a warning does so will be determined by the circumstances in which the warning is given. So, for example, a warning sign on the newly washed oor of a changing room saying Danger would be less likely to be adequate compared to a sign saying Danger wet slippery oor take care. As discussed earlier, warnings where children may be involved may need to be different in nature to those for just adults. It is important to note that, under the 1984 Occupiers Liability Act, if certain conditions are met, the occupier has a duty of care to people who are not invited or given permission to enter onto the land. This can include not only burglars and trespassers, but also someone who wanders onto land when they are lost. It is possible to enter a building as a whole as a visitor, but then become a trespasser in specic parts of the building. For example, a member of the public may go into the sports hall at their local leisure centre as a lawful visitor to play a game of badminton. They may then become a trespasser if they go into the sports hall storage room marked Authorised sports hall staff only. The occupier, the council, may then be liable if the person is injured when some poorly stacked weights fall on top of them. Occupiers liability is, then, a crucial area of tort for those managing sports and tness facilities.

Damages If a claimant succeeds in proving liability he or she will expect to be compensated for any injuries. The aim of compensation here is to restore the claimant to the position he or she would have been in had the tort not been committed. In many cases this also involves insurance.

DEFENCES As has been explained, to pursue a claim of negligence the claimant must prove that the defendant owed him or her a duty of care, the duty was breached and the claimant suffered harm that was a foreseeable consequence of that breach. Even if the claimant succeeds in doing all of this there are some defences that the

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defendant can raise. Of particular interest to those working in the sports and tness industry will be the defences of contributory negligence and volenti non t injuria (no cause of action arises to someone who voluntarily accepted the risk).

Contributory negligence Contributory negligence occurs when the claimants own negligence contributed to his or her injuries. The Law Reform (Contributory Negligence) Act 1945 determined that where the claimant is found to have been partly at fault, the judge can reduce the damages to be awarded to the claimant by a proportion that takes into account the claimants own negligence. The case of Sayers v. Harlow Urban District Council ([1958] 1W.L.R.623) illustrates this very clearly. On the morning of 14 January 1956 Mrs Eileen Sayers was with her husband waiting to catch a bus to London. She went to visit the public toilets owned and operated by Harlow Urban District Council. Unfortunately, due to a faulty lock, the door jammed and Mrs Sayers could not get out. She became anxious as she didnt want to miss her bus and shouted for help, but no one came. She then tried to climb over the top of the cubicles door. In doing so, Mrs Sayers stepped on the toilet roll, the roll span around and she slipped, lost her balance and fell, injuring her leg. Mrs Sayers sued Harlow Urban District Council. The Court of Appeal decided that, although the Council was negligent, Mrs Sayers was also negligent in trying to balance on a revolving toilet roll. She had contributed to her injuries, so her damages were reduced by 25 per cent to take account of her own carelessness. So, the person who is injured when slipping on the wet changing room oor may succeed in his claim against the leisure centre for negligence in not keeping the oor dry. However, he may nd his damages reduced if the court decides that the bottle of wine he had consumed at lunchtime contributed to him being rather unsteady on his feet. It is important to note that where young children are concerned the courts recognise that they cannot be expected to have sufcient awareness and experience to be aware of potential danger, and so are unlikely to be found contributorily negligent.

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Volenti non t injuria The Latin phrase volenti non t injuria, or volenti for short, can be raised as a defence in situations where the defendant says that the claimant was voluntarily taking the risk of harm. Its meaning can be clearly explained in sport; for example, if you play rugby, or take up boxing, simply by taking part in the match, or entering the boxing ring, you have voluntarily accepted the risk of possible injury. Volenti can only apply when the player is injured during a game or sport played according to the rules. This is illustrated in two incidents occurring in rugby matches. In Simms v. Leigh in Rugby Football Club Ltd ([1969] 2 All E.R.923), Mr Simms broke his leg when he was tackled and thrown towards a concrete wall running along the touchline. The court decided that the rugby club could raise the defence of volenti as the injury occurred during a tackle which was within the rules of rugby league, and that he had willingly accepted the risks involved in playing on that particular pitch. The wall, which was 7 foot 3 inches away from the touchline, met with the requirements of Rugby Leagues by-laws. In contrast, where the game has not been played according to the rules the defence is much less likely to succeed. Smoldon v. Whitworth & Nolans ([1997] P .I.Q.R.133) involved a colts rugby match. The claimant, Ben Smoldon, who was playing hooker, suffered a broken neck when a scrum collapsed. He sued Mr Nolan, the match referee. When Mr Nolan tried to raise the defence of volenti saying that Mr Smoldon had consented to the ordinary incident of a game of rugby, the defence failed. The Court of Appeal refused to accept his defence. This was because there were special rules for colts games, including a provision that there should be no collapsed scrums. In allowing the scrum to collapse, the referee had breached his duty to apply the rules. Therefore the match had not been played according to the rules applicable to a colts match. The defence of volenti can also apply to spectators. In the case of Wooldridge v. Sumner ([1961] WL20448) a photographer, Edmund Testocq Woolridge, was knocked down and severely injured at the National Horse Show by a horse named Work of Art ridden by Ronald Holladay, an experienced horseman, when the horse left the arena. When he sued Hugh Sumner, the owner of the horse, the court said that spectators at sporting events have voluntarily assumed the risk of harm caused by a participant in the sport as long as the participants action is not undertaken with reckless disregard for the safety of the spectators. The law recognises that individuals must take some responsibility for their own actions.

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CONCLUSION The law of tort and in particular the concept of duty of care, which lies at the heart of tort law, clearly underpin the health and safety regulations that govern the operation of the sports and tness sector in each and every one of the wide range of activities covered within the sector. Those managing and working in everything from a local council swimming pool, through a private racket and tness centre, to a football club or an outdoor adventure centre should have an appreciation of the law of tort which underpins the health and safety regulations that they work with every day.

REFERENCES Cracknell, D. G. (2004) Obligations: The Law of Tort, 3rd edn, London: Old Bailey Press. Elliott, C. and Quinn, F. (2003) Tort Law, 4th edn, Essex: Pearson Educational Limited. Fitness Industry Association (FIA) (2007) FIA Code of Practice, available from: http://www.a.org.uk/, accessed August 2007. Hepple, B. A., Howarth, D. A. and Matthews, M. H. (2003) Tort Cases and Materials, 5th edn, London: LexisNexis Butterworths.

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