Record Detail

One of the intentions underpinning section 1 of the Compensation Act
2006 was to provide reassurance to individual volunteers, and voluntary organisations,
involved in what the provision called ‘desirable activities’ and including
sport. The perception was that such volunteers, motivated by an apprehension about
their increased vulnerability to negligence liability, and as driven by a fear of a
wider societal compensation culture, were engaging excessively in risk-averse
behaviour to the detriment of such socially desirable activities. Academic commentary
on section 1 of the Compensation Act 2006 has largely regarded the provision
as unnecessary and doing little more than restating existing common law
practice. This article argues otherwise and, on critically reviewing the emerging
jurisprudence, posits the alternative view that section 1, in practice, affords an
enhanced level of protection and safeguarding for individuals undertaking functions
in connection with a desirable activity. Nonetheless, the occasionally idiosyncratic
judicial interpretation given to term ‘desirable activity’, potentially compounded by
recent enactment of the Social Action, Responsibility and Heroism Act 2015,
remains problematic. Two points of interest will be used to inform this debate. First,
an analysis of the then House of Lords’ decision in Tomlinson and its celebrated
‘balancing exercise’ when assessing reasonableness in the context of negligence
liability. Second, a fuller analysis of the application of section 1 in the specific
context of negligence actions relating to the coaching of sport where it is argued that
the, albeit limited, jurisprudence might support the practical utility of a heightened
evidential threshold of gross negligence.