The UK Perspective on Informed Consent in Commercial Space Travel

* Alex SIMMONDS LLB

The Act 2018 imposes requirements that operators of activities obtain informed consent from individuals taking part in spaceflight activities. The Act contains no further guidance on this matter other than an indication that regulations will determine the ultimate scope of this provision. Is the definition of ‘informed consent’ within the spaceflight context to be synonymous with ‘informed consent’ in the English Medical Law context? If so, these contrasting regimes are likely to be incompatible in terms of their goal and purpose. Moreover, the United States regime, if roughly copied or imported wholesale would likewise be at odds with the position in English Medical Law. Furthermore, the present law on warnings in the context of Occupiers Liability and the rules relating to participation in dangerous sporting activities may serve to negate consent in any case, regardless of how well-intentioned or balanced the ultimate regime may prove to be. The logical position for the UK regulator (or legislator) would be to create a fresh regime of informed consent for commercial spaceflight purposes which falls categorically outside the medical law context.

Keywords: Law, Space, Spaceflight, Tourism, Consent

1 INTRODUCTION March 15 2018 marked the launch of the UK Space Industry Act 2018. The UK could ‘reach for the stars … by enabling commercial markets for small- launch and sub-orbital flight from UK ’.1 There are already concrete plans for such innovation. ‘Spacehub Sutherland’ in Scotland could be among the UK’s first spaceports having received funding from the Highlands and Islands Enterprise (HIE) and the UK Space Agency2 with the likely involvement of Lockheed Martin and Orbex3 The UK’s competitive edge in this field should also not be taken lightly. A unique selling point for Northern Scotland is that it

* Lecturer in Law, Coventry University, Barrister of the Inner Temple. [email protected]. 1 HC Deb 15 Jan. 2018, Vol 634, Column 651. 2 The Highlands and Islands Enterprise, UK Space Port, Spacehub Sutherland, https://www.hie.co.uk/ our-region/regional-projects/space-hub-sutherland/ (accessed 14 July 2020). 3 Press release from UK Government, Lockheed Martin and Orbex to launch UK into new space agehttps:// www.gov.uk/government/news/lockheed-martin-and-orbex-to-launch-uk-into-new-space- age (accessed 14 July 2020).

Simmonds LLB, Alex. ‘The UK Perspective on Informed Consent in Commercial Space Travel’. Air & 45, no. 4&5 (2020): 367–390. © 2020 Kluwer Law International BV, The Netherlands 368 AIR AND SPACE LAW reportedly offers access to ‘polar and sun-synchronous orbits’4 which is potentially promising for the launch of Earth Orbiting .5 Moreover, within Europe only France presently has access to its own launch facilities with Portugal harbour- ing ambitions to establish a space-port in the Azores following the establishment of it’s own space program.6 There are also recent plans for a to be established in Cornwall by 2021.7 Spanning 72 sections and twelve schedules, the Space Industry Act 20188 represents a giant leap for the UK into the unknown in matters legal. Section 34, ‘Liability of operator for injury or damage etc’ imposes a regime of strict liability for operators of space activities in respect of damages recoverable as a result of injury or damage caused by spaceflight activities (including ‘any person in such a craft’) but specifically excludes ‘injury or damage sustained by an individual of a prescribed description taking part in or otherwise engaged in connection with, the spaceflight activities’. It is very likely that ‘Space Tourists’ will come within this definition. Section 17 – entitled ‘informed consent’, reads: (1) The holder of an operator licence (the ‘licensee’) must not allow an individual to take part, in a prescribed role or capacity, in spaceflight activities carried out by the licensee unless the individual— (a) has signified his or her consent to accept the risks involved in those activities, and (b) fulfils prescribed criteria with respect to age and mental capacity. And, further, that: (2) Consent to accept the risks involved in spaceflight activities must be signified by signing a document (a ‘consent form’) that gives details of the risk assessment carried out for those activities under section 9. (3) Regulations may make— (a) provision about the form and content of consent forms; (b) provision about information to be given to indivi- duals before they sign consent forms; (c) provision imposing evidential and procedural requirements with regard to the signification of consent. Drawing on what has been labelled the ‘North American doctrine’9 of Informed Consent, this amounts to a provision that a waiver of sorts is to be signed by any

4 Lesley Jane Smith & Ruairidh J. M. Leishman, Up, up and Away: An Update on the UK’s Latest Plans for Space Activities, 44(1) Air & Space L. 1–26 (2019). 5 Ibid.,at5. 6 Ibid., at 10, see also Magda Cocco & Helena Correia Mendonça, The Portuguese Space Act: An Innovative Framework for Space Activities, 45(2) Air & Space L. 157–200 (2020). 7 Website of Spaceport Cornwall, https://spaceportcornwall.com (accessed 6 Nov. 2019). 8 The Space Industry Act 2018 c. 5. 9 Montgomery v. Lanarkshire Health Board (Scotland) [2015] UKSC 11, para. 50. CONSENT IN COMMERCIAL SPACE TRAVEL 369 potential space tourist prior to undertaking a flight for pleasure. This article seeks to examine the parameters of ‘informed consent’ in addition to rules on warnings, disclaimers and notices as they arise in English Law and envisage how they may apply to such individuals in these circumstances.

1.1 INTERNATIONAL SPACE LAW The regulation of human spaceflight was considered at least as far back as 1932 by Vladimir Mandl, who surmized that existing legal frameworks built around aviation would not be suitable for any trans-atmospheric travel involving the use of rocket technology.10 Following the launch of Sputnik 1 in 1957, UN General Assembly Resolution 1348 of 1958 was called into existence on the ‘Question of the Peaceful Use of Outer space’.11 This was followed by Resolution 1472 in December 1959, this time on ‘International co-operation inthePeacefulusesofOuterSpace’12 which gave birth to the ‘Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space’.13 These developments ultimately led to the 1967 .14 Then came the 1968 ‘Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’15 (The ‘’), which provided for emergency assistance to be granted by states to stricken astronauts . There was also a requirement placed on states to recover and return any space object – or, indeed, any detached parts of such a space object – belonging to another state having fallen within their territory. Following this, the 1972 ‘Convention on International Liability for Damage Caused by Space Objects’16 (the ‘Liability Convention’) prescribed that ‘… A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight’.17 Then came the 1975 Convention on ‘Registration of Objects Launched into Outer Space’18 requiring all states party to establish a system of registration for all objects launched or procured for launch by that state. The last – and, in terms

10 Peter Jankowitsch, The Background and History of Space Law,inHandbook of Space Law 1 (Frans Von Der Dunk & Fabio Tronchetti eds, Edward Elgar 2015). 11 UNGA Res 1348 (XIII) (13 Dec. 1958). 12 UNGA Res 1472 (XIV) (12 Dec. 1959). 13 UNGA Res 1962 (XVIII) (13 Dec. 1963). 14 Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 27 Jan. 1967, entered into force 10 Oct. 1967) 610 UNTS 205 (Outer Space Treaty). 15 UNGA Res 2345 (XXII) (22 Apr. 1968). 16 UNGA Res 2777 (XXVI) (29 Mar. 1972). 17 Ibid., Art. 2. 18 UNGA Res 3235 (XXIX) (14 Jan. 1975). 370 AIR AND SPACE LAW of its overall impact and prominence, least (with only eleven signatories to date, not including the UK)19 – Treaty came in 1979 – the ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’.20 In addition to the 1963 Declaration,21 many other principles have been adopted by the UN General Assembly, such as the ‘Broadcasting Principles,’22 the ‘Remote Sensing Principles,’23 the ‘Nuclear Power Sources Principles’24 and the ‘Benefits Declaration’.25 Article VII Outer Space Treaty provides that ‘each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space’. Article II of the Liability Convention states that ‘a launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight’. Under Article I(ii) a ‘launching state’ is classified as ‘A state from whose territory or facility a space object is launched’. On one reading this makes states liable for launches and activities undertaken by commercial operators acting under license. However, Article VII excludes liability for damage caused by space objects of a launching state to nationals of the launching state and foreign nationals in the vicinity of the launch or landing of the space object and/or in connection with its operation. There is, therefore, a gaping void in the fabric of international space law pertaining to the liability of space operators in respect of damage and/or injury being caused to nationals of the launching state. This issue was supposed to have been resolved by further international agreement and customary interna- tional law according to some.26 The plethora of recent domestic enactments world-wide indicate that a new Treaty or Convention would be most welcome.

19 United Nations, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html (accessed 10 June 2020). 20 UNGA Res 34/68 (5 Dec. 1979). 21 Ibid.,at8. 22 The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res 37/92 (10 Dec. 1982). 23 The Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res 41/65 (3 Dec. 1986). 24 The Principles Relevant to the Use of Nuclear Power Sources in Outer Space, UNGA Res 47/68 (14 Dec. 1992). 25 The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, UNGA Res 51/ 122 (13 Dec. 1996). 26 Van C. Ernest, Third Party Liability of the Private Space Industry: To Pay What No One Has Paid before,41 Case W. Res. L. Rev. 503, 519 (1991). CONSENT IN COMMERCIAL SPACE TRAVEL 371

1.2 UK LAW PRE-SPACE INDUSTRY ACT

The Outer Space Act 198627 was created to bring the UK into line with existing international law obligations.28 Section 4 of the Act provides for the UK’s com- pliance with Article VI of the Outer Space Treaty.29 In line with the ,30 section 7 establishes a ‘Register of Space Objects’. However, the Act did not establish any rules or regulations in respect of commercial space travel or consider specific safety matters.31 This Act is now only relevant as far as space activities beyond the UK.32

1.3 THE SPACE INDUSTRY ACT 2018 The Space Industry Act was brought into existence owing to a variety of factors, among those the stated ambition to capture 10% of the global space market within the next ten years33 and the desire to insulate industry from potential Brexit impact.34 The result was what can be described as an expansive enabling or parent Act, hastily ushered through both Houses of Parliament.35 Resultantly, numerous issues have been identified; the legislation ‘ck… creates regulatory functions, but does not prescribe by whom they are to be performed.’36 Section1(1) of the Act distinguishes ‘sub-orbital’ and ‘space activities’. ‘Space Activity’ is defined very broadly, from ‘launching or procuring’ a space-object (or associated craft) through to operating a ‘space object’ and, ultimately, ‘any activity in outer space’.37 ‘Sub-orbital activity’ is defined as the ‘launching, procuring the launch of, operating or procuring the return to earth of – (1) a craft to which ss.(5) applies, or (2) an aircraft carrying such a craft, but does not include space activity’.38 section5refersto‘(1) a rocket or other craft that is capable of operating above the stratosphere; (2) a balloon that is capable of reaching the stratosphere carrying crew or passengers’. Although the UK position

27 C38. 28 Impact Assessment: Review of the 5, https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/493187/OSA_Impact_Assessment_ FINAL_BIS0067.pdf (accessed 4 Nov. 2019). 29 Ibid.,at8. 30 Ibid., at 15. 31 See supra n. 4, at 9. 32 Ibid. 33 See supra n. 4, at 3. 34 Ibid., at 24. 35 Ibid., at 10. 36 Ibid., at 11. 37 Section 1(4)(a) – (c). 38 Ibid., at 1 s. 1(4)(c). 372 AIR AND SPACE LAW may appear nebulous,39 there is no agreement in international law as to where outer space begins,40 although it has been suggested that under customary international law anything above 95–110km may soon be defined as ‘outer space’.41 Space Flight Participants (SFP’s) come within Sections 17 and 18 as ‘Individuals taking part in spaceflight activities’. with no distinction made between space tourists, pilots or professionals who could broadly be termed ‘Astronauts’.By way of comparison, it is interesting to note the content of Article V of the Outer Space Treaty on ‘astronauts’: ”States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle”42 These ‘envoys of mankind’ are afforded special status in international law. The 1968 Rescue Agreement, more broadly, refers to ‘personnel.’43 Given that these instruments materialized at the dawn of the Space Age whose ‘personnel’ consisted of silver-suited pioneering explorers, it is unlikely that wealthy tourists undertaking a 15-minute sub- orbital flight in the Twenty-first Century would have been within contemplation.

1.4 THE POTENTIAL RISKS OF SPACEFLIGHT ACTIVITIES From the unsavoury consequences of explosive decompression through to complete bodily dismemberment resulting from a horrific launch-pad accident, the risks of spaceflight are clear. A study44 initiated by the Federal Aviation Administration considered a range of associated hazards in detail. Some of them listed were: ‘… high decibel noise, loss of pressure, high G-forces (sustained acceleration), high or low temperature, high radiation levels, physical impact trauma, exposure to toxic chemicals, and adverse composition of the cabin atmosphere’45 Moreover

39 For an overview of other issues with the Space Industry Act 2018 see A. Simmonds, The Space Industry Act 2018: A Giant Leap?, 24(2) Cov. L. J. 95–104 (2019) . 40 Stephan Hobe, Legal Aspects of , 86 Neb. L. Rev. 441 (2007). This point has even been the subject of a text; see Thomas Gangale, How High The Sky? (Brill Nijhoff 2018). 41 Ibid.,at4. 42 Seesupra n. 15, Art. 5. 43 See supra n. 16, Art. 1. 44 APT Research, Inc. and Knutson & Associates, ‘Study on Informed Consent for Spaceflight Participants’ Document Number: APT-CFA-230-0001-02F, (26 Sept. 2008). (link no longer functioning). 45 G. Nield et al., Informed Consent in Commercial Space Transportation Safety, Federal Aviation Administration doc IAC-13-D5. 1.4, https://www.faa.gov/space/additional_information/interna tional_affairs/media/Informed_Consent_paper_IAC_Sept_2013_FAAfinal.pdf (accessed 12 May 2020). CONSENT IN COMMERCIAL SPACE TRAVEL 373

“…Psychological response hazards include claustrophobia, excitement, agitation, fear, motion sickness, vertigo or loss of bearing or balance, and rapid pulse or increased blood pressure.46 Further, as Title 14 of the United States Code of Federal Regulations47 states, regard must also be had to ‘hazards unknown’.48

1.5 FINDING THE RULES ON INFORMED CONSENT IN ENGLISH LAW The doctrine of ‘informed consent’ in English Law is most commonly used in the medical context regarding the risks of treatment. The scope of the appropriate legal test on informed consent was set out in Montgomery v. Lanarkshire Health Board49. The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is under- taken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. This passage is a refined summary of three legal authorities: Lord Scarman’s statement in his dissenting judgment from the case of Sidaway50: I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk. Lord Woolf’s statement in the case of Pearce51: … if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt

46 Ibid. 47 Part 460, at 45. 48 Part 460, at 45 (2). 49 Montgomery v Lanarkshire Health Board [2015] UKSC 11 at para 87 50 Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1 at 13. 51 Pearce v. United Bristol Healthcare NHS Trust [1999] PIQR P53 at 59. 374 AIR AND SPACE LAW

And the test contained in the Australian case of Rogers v. Whittaker52: a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. A useful example of the ‘reasonable person in the patient’s position’ and the subjective element can be found in the 2019 case of Diamond v. Royal Devon and Exeter NHS Foundation Trust.53 The trial judge applied a ‘rationality test’ to determine whether the patient would have proceeded with an operation had a negligible risk (estimated at 1 in a thousand)54 been made known. On material risks, the Supreme Court had the following to offer in Montgomery : it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.55

1.6 INFORMED CONSENT UNDER THE COMMON LAW AND SECTION 17 OF THE SPACE INDUSTRY ACT

Space tourism is a wholly optional venture and is the subject of a unique commercial relationship which only a minority of, presumably very wealthy, individuals will ever partake in. The medical context is one which everybody has some experience of and is often a matter of necessity. The differences are important ones and a wholesale importation of Montgomery would be entirely inappropriate for the reasons below. Under section 17, operators (or their agents) would be under a duty of care to inform each potential SFP about any ‘material risks’ involved in the space flight activity.56 The test for materiality under the common law imports a significant degree of subjectivity which in the commercial spaceflight context is significant for two reasons.

52 Rogers v. Whitaker (1992) 175 CLR 479 at 490. 53 [2019] P.I.Q.R. 12. 54 Ibid., para. 83. 55 See supra n. 49, para. 89. 56 According to an NBC report, the chances of an Astronaut dying in the course of a spaceflight is greater than 1 in 20, https://www.nbcnews.com/mach/science/why-astronaut-chris-hadfield-isn-t-afraid- death-ncna860511 (accessed 10 Feb. 2020). CONSENT IN COMMERCIAL SPACE TRAVEL 375

Firstly, it must surely be known to the early commercial SFP that the endeavour they are embarking on is an inherently risky one – serious injury, dismemberment or the ultimate price, death being likely outcomes – a 2019 study conducted by the Federal Aviation Administration, The Aerospace Corporation and the NASA Armstrong Flight Research Centre concluded that catastrophic failure or death was to be ‘expected’ for the first ten launches of a new ‘Suborbital Reusable Launch Vehicle’.57 In the words of legendary test pilot, Chuck Yeager, the first commercial SFP’s will be, effectively, ‘Spam in a Can’.58 Secondly, if the medical context requires the consideration of the expectations of a ‘reasonable person’, does it follow that the space tourism industry would require consideration of the expectations of a ‘reasonable spaceflight participant’? These individuals may have a bold or risk-taking nature. Would such a participant attach any particular significance to lesser risks such as motion sickness, ear drum or eye damage? On getting their once-in-a-lifetime trip to space, dreamed of perhaps since the days of Apollo, could a potential SFP legitimately argue that they would not have undertaken such an activity if they knew of, for example, a 3% chance that they may suffer a perforated eardrum? What would the fact that the individual has voluntarily taken part in such a high-risk activity have on the judge’s assess- ment of their characteristics in this context? Will the act of boarding an early commercial spacecraft itself prove to be a ‘consent portal’, whereby on having voluntarily accepted the risk of an inherently dangerous activity, the SFP can be said to have consented to all other potentially dangerous circumstances and injurious ailments flowing from their buckling of the seatbelt and the closing of the hatch? Further, the characteristics of SFP’s, in particular their eagerness to embark on such adventures, may cause them to overlook material risks. Evidence was given to Parliament on this particular point by Thomas Cheney,59 then PhD candidate at the University of Sunderland: … first spaceflight participants are likely to be enthusiasts who may be so eager to ‘go to space’ that they are willing to ignore whatever risks may be involved … There is also the risk that the facilitators of the may downplay the risks involved.60

57 R. Siebold, R. Young & N. Demidovich, Safety of Spaceflight Participants Aboard Suborbital Reusable Launch Vehicles – Background Research, NTRS/NASA, online 2019, https://ntrs.nasa.gov/archive/nasa/ casi.ntrs.nasa.gov/20190025274.pdf (accessed 12 May 2020). 58 Chuck Yeager, interviewed by Jack Houvouras, A Chat With Chuck Yeager, (77) Huntington Quarterly, https://huntingtonquarterly.com/2018/09/27/issue-77-hqa-a-chat-with-chuck-yeager/ (accessed 04 Feb. 2020). 59 Lecturer in Space Governance at the Open University. 60 Thomas Cheney, Written Evidence to Parliament, online, https://publications.parliament.uk/pa/ cm201719/cmpublic/space/memo/sib01.htm (accessed 04 Feb. 2020). 376 AIR AND SPACE LAW

The potential vitiating impact on consent of high-pressure sales tactics as Cheney notes is interesting. As Lord Donaldson MR stated in Re T,61 ‘A special problem may arise if at the time the decision is made the patient has been subjected to the influence of some third party …’ A duty to provide independent information on the risks involved, possibly from an agency such as the UK Space Agency, should be imposed. Liability for inaccurate, incomplete or misleading information given to an SFP may be action- able under the Misrepresentation Act 196762 and aggressive marketing materials avoided. Early indications from the United States are instructive: Jeff Greason, president of X-Cor acknowledged the necessity of a written notice including blatant statements such as “You have a 1 in 14 chance of dying on this flight.” Yet, Mr Greason also acknowledged that a written notice may not be enough.’ He stated that in addition to a written notice, he would provide the SFP with dramatic videos portraying catastrophic rocket accidents.63 Going one step further, ‘Greg Maryniak, Executive Director of the X-Prize Foundation suggested advising the SFP to draft a will prior to space flight’.(!)64 However, in agreement with Cheney, Walker also further points out that: The consumer is attracted to the activity precisely because of the risks involved. Thus, the consumer’s frame of mind lacks the cognitive ability to appreciate the risk of which they are being informed. Cheney’s written evidence also correctly points out that ‘whether the highly technical nature of spaceflight, particularly in these early, experimental phases, can be distilled in a way the average layperson can truly understand is a question worth asking’.65 The importance of giving clear information to patients was noted by Lord Templeman in Sidaway at page 904: the duty of the Doctor … is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment. A patient may make an unbalanced judgment because he is deprived of adequate informa- tion. A patient may also make an unbalanced judgment if he is provided with too much information and is made aware of possibilities which he is not capable of assessing because of his lack of medical training, his prejudices or his personality.66

61 Re T (Adult) [1992] 4 All ER 649 at 113. 62 1967 c7. 63 Melanie Walker, Suborbital Space Tourism Flights: An Overview of Some Regulatory Issues at the Interface of Air and Space Law, 33 J Space L 375, 384 (2007). 64 Ibid. 65 See supra n. 60. 66 See supra n. 63. CONSENT IN COMMERCIAL SPACE TRAVEL 377

Paradoxically, therefore, under English Law giving a patient too much highly technical information could in fact invite serious questions regarding the validity of consent. This point was also forcefully articulated in Montgomery: The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.67 This is at odds with the United States position. Tracy Knutson advised as such, going as far as to say that the SFP should be comprehensively appraised of the numerous unknown quantities in addition to the known ones68: warnings and contractual exculpation documents for this developing adventure activity will need a detailed and descriptive section titled “Inherent Risks” and/or “You Need to Understand These Issues” followed by a list of industry concerns or “realisms.”…where it is clear that one of the primary hazards or risks associated with this young industry is that there are no accepted standards guiding the industry regarding critical concerns like the physical condition of the SFP, what gear the SFP should be required to wear, what safety equipment should be in the vehicle, what is required in a safety briefing, what type of vehicle is capable of routinely traveling to suborbital space, or even what specific categories of aircraft or specific instrument ratings a pilot must have, SFPs should be appraised of this dearth of standardized knowledge, awareness and response. And, further, that: ‘The space operators should tell you everything’.69 Complicating these matters is the novel case of Chester v. Afshar.70 A neuro- surgeon was found liable after failing to mention a 1–2% risk to the patient which manifested itself as serious neurological damage. At trial, the patient admitted that the 1–2% risk would not have been enough to put her off the idea of surgery altogether but that she would have taken time to reflect on the information received and that she would have probably chosen to have surgery at a later date. The chain of causation was deemed to be intact at the time of the surgery –‘but for’ the surgeon’s negligent failure to advise, the patient would not have had surgery on that date and, hence, not suffered the damage caused. The implications for Operators under section 17 here are potentially troublesome. A failure to warn of a small risk could have consequences should the claimant be able to prove that they would have taken more time to consider the literature and their plans for space travel in light of such a risk, however, they must refrain from ‘bombarding’ potential customers with voluminous technical information.

67 See supra n. 49, at para. 90. 68 Tracey Knutson, What Is Informed Consent for Space-Flight Participants in the Soon-to-Launch Space Tourism Industry, 33 J Space L 105 at 114 (2007). 69 Ibid., at 122. 70 [2004] UKHL 41, Lords Bingham and Hoffman dissenting. 378 AIR AND SPACE LAW

1.7 THE GENERAL MEDICAL COUNCIL GUIDELINES

The principles discussed above are broadly reflected in the General Medical Council’s Guidelines on consent for Doctors from 2008,71 of which paragraphs 15, 32, 33, 34, 36 and 44 could be said to frame best practice. These principles should be at the forefront of the regulators mind when deciding how best to establish the informed consent regime under s17. At the very least, regulations should provide that (1) The disclosure of all material risks is made, (2) non-biased and preferably independent information should be given on such risks, (3) insofar as is reasonably possible, this information should be given in a way that is clear to understand with the use of visual aids where appropriate, (4) the consequences of not familiarizing themselves with the information should be explained to the SFP, (5) appropriate efforts should be made to determine that the consent is valid based on the information the SFP has had access to and how well they appear to understand it, (6) all information given should be accurate and up to date in line with the state of scientific knowledge of the effects of space flight on the human body and technological developments associated with space flight.

1.8 UNKNOWN RISKS

There are also risks and hazards to such activities which are presently unknown which, as mentioned, the US Code specifies that a potential SFP be warned of.72 This begs the question of what the test for ‘unknown-ability’ is likely to be. Without prejudice to existing tests of reasonable foreseeability, consumer law may offer some food for thought. If one substitutes ‘defect’ for ‘material risk’, something akin to the ‘development risks’ defence of Article 7(e) of the Product Liability Directive of 1985 may be proposed by a regulator or operator of spaceflight activities73: The producer shall not be liable as a result of this Directive if he proves … that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered. By means of analogy, an operator under section 17 of the Space Industry Act, in failing to give warning of certain risks could argue that such certain risks were unknowable owing to the state of scientific and technical knowledge at the time of the flight. Article 7 (e) was expanded upon further in the Advocate General’s

71 General Medical Council, ‘Consent: Patients and Doctors Making Decisions Together, (2008), https:// www.gmc-uk.org/static/documents/content/Consent_-_English_0617.pdf, (Accessed 14 July, 2020) 72 See supra n. 48. 73 85/374/EEC. CONSENT IN COMMERCIAL SPACE TRAVEL 379

Opinion in the case of Commission v. UK: It follows that, in order to have a defence under Article 7 of the Directive: … the producer of a defective product must prove that the objective state of scientific and technical knowledge, including the most advanced level of such knowledge, at the time when the product in question was put into circulation was not such as to enable the existence of the defect to be discovered. Further, in order for the relevant scientific and technical knowledge to be successfully pleaded as against the producer, that knowledge must have been accessible at the time when the product in question was put into circulation.74 If this avenue is chosen by the regulator it would place a burden on Operators in terms of keeping up to date with developments in space medicine. Presumably it would be quite difficult for such an operator to claim ignorance on the grounds that such knowledge was not accessible (or, in the parlance of A v. National Blood Authority,75 ‘locked within Manchuria’), given that bodies of authoritative evidence on such matters will surely be held by a limited number of authorities such as NASA and the ESA.76 Within the medical context of informed consent, this principle manifests itself in the case of Duce v. Worcestershire Acute Hospitals NHS Trust.77 In this case the Court of Appeal considered this particular point with Lord Justice Hamblen concluding that ‘a clinician is not required to warn of a risk of which he cannot reasonably be taken to be aware’.78 Relatedly, can an SFP give informed consent to a problem that they could not know about due to an absence of any available data? The US regime attempts to counter this under Title 14 (below).

2 THE UNITED STATES EXPERIENCE The United States legislative provisions on informed consent in the context of spaceflight activities are much more detailed than those of the United Kingdom. Title 14 of the Code of Federal Regulations provides79 that: An operator must inform each space flight participant in writing about the risks of the launch and reentry, including the safety record of the launch or reentry vehicle type. An operator must present this information in a manner that can be readily understood by a

74 Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland. [1997] EUECJ C-300/95 (29 May 1997) para. 29. 75 [2001] EWHC QB 446. 76 Although with the development of the it could well be that some information is literally ‘locked within Manchuria’. 77 [2018] P.I.Q.R. P18. 78 Ibid., para. 43. 79 14 C.F.R. § 460.45 (2). 380 AIR AND SPACE LAW

space flight participant with no specialized education or training, and must disclose in writing - (1) For each mission, each known hazard and risk that could result in a serious injury, death, disability, or total or partial loss of physical and mental function; (2) That there are hazards that are not known; and (3) That participation in space flight may result in death, serious injury, or total or partial loss of physical or mental function. Moreover, there is a requirement to give information on the safety record of the launch and re-entry vehicles80 including ‘the total number of people who have been on a suborbital or orbital space flight and the total number of people who have died or been seriously injured on these flights’81 and: ‘The total number of launches and reentries conducted with people on board and the number of catastrophic failures of those launches and re-entries’.82 It is further provided that the spaceflight participant should be provided with information on any corrective actions taken in respect of any accidents or human spaceflight incidents83 and the spaceflight participant must also be given the opportunity to request additional information regarding accidents or incidents that have happened.84 The operator must also, before the flight, give the space- flight participant the opportunity to ‘ask questions orally to acquire a better under- standing of the hazards and risks of the mission’ and consent must be provided in writing.85 Whether this practice truly does assess the SFP’s cognizance of the matter is questionable, particularly whether it would be legally regarded as ade- quate under English Law as will be seen. There are three requirements laid down for the consent form. It must: (1) Identify the specific launch vehicle the consent covers; (2) State that the space flight participant understands the risk, and his or her presence on board the launch vehicle is voluntary; and (3) Be signed and dated by the space flight participant.86 The regulator should be cautious when considering a wholesale importation of the United States regime into English Law for two reasons. Firstly, the amount of information the SFP should be presented with under US Law may be considered ‘overwhelming’–information on the type of corrective action taken for each prior spaceflight incident,87 if construed broadly, may relate to every spaceflight that has

80 Ibid., (c). 81 Ibid., (c) (1). 82 Ibid., (c) (2). 83 Ibid., (d) (2) & (3). 84 Ibid., (e). 85 Ibid., (f). 86 Ibid., (f). 87 Supra n. 78. CONSENT IN COMMERCIAL SPACE TRAVEL 381 ever taken place. Not only is this voluminous it is likely to be highly technical and not readily understood. Moreover, the requirement that the SFP be given the opportunity to ask questions may not advance things any further under English Law. In Rodney Crossman v. St George’s Healthcare NHS Trust,88 the High Court held that the fact that a claimant did not ask more questions about the type of treatment did not ‘absolve the hospital of its responsibility for the mistake and does not break the chain of causation that flows from it’.89 Moreover, as stated by Walker: It is questionable, however, whether an SFP would know what kinds of questions to ask. For example, an SFP is likely to make general inquiries related to quantity of accidents. The SFP may not have enough information to make more specific inquiries. For example, an SFP may not think to pose questions that would distinguish between quantity of accidents that occurred in the air or on the ground.90 To throw the differences here into stark relief, it is pertinent to give an example of how the two informed consent regimes would differ in respect of an SFP in both jurisdictions. In the United States, SFP 1 decides to embark on a commercial space flight for pleasure. SFP 1 is given a wealth of technical information by the Operator on the risks involved in spaceflight including the corrective engineering actions taken in respect of all previous human spaceflight incidents and a raft of information about various medical problems that could occur as a result of the trip, ranging from gastrointestinal issues in microgravity through to death resulting from catastrophic engine failure. SFP 1 asks a number of questions prior to the flight about various technical aspects of previous human space-flight emergencies. Unfortunately, SFP 1 is killed when the spacecraft explodes in mid-flight. Her estate argue that the Operator should be held liable for SFP 1’s death. The Operator successfully argues that SFP 1 gave free and fully informed consent to her death in these circumstances as she was fully aware of the risks and asked many questions. The Court finds for the Operator. Following a legal transplant of the United States informed consent provisions in the United Kingdom, SFP 2, embarking on a similar flight, is given the same amount of technical information as SFP 1 as the adopted US regulations and practice dictate and the same amount of information regarding corrective actions and various medical problems that can arise from space travel. SFP 2 also asks a number of questions before launch. SFP 2’s flight also explodes mid-flight killing SFP 2. SFP 2’s estate successfully argue that, under the law on informed consent in the UK, SFP 2 could not have given informed consent due to having been

88 [2016] EWHC 287. 89 Ibid., at para. 32. 90 See supra n. 62, at 382. 382 AIR AND SPACE LAW

‘overwhelmed’ by the technical information given to him by the Operator. The Operator argues that SFP 2 had the chance to, and indeed did, ask questions, but this argument is countered by the successful estate who state that, being a lay- person, SFP 2 would not have known what questions to ask in any case. Rejecting this in light of Montgomery91 and Crossman92 the Court finds for SFP 2’s estate. One area that UK regulators should look to is the practice of insisting upon operators showing a proven flight safety record comprised of numerous test flights before opening their doors for any potential SFP’s to give informed consent. This was part of the proposed rules for such matters by the Department of Transportation Federal Aviation Administration.93

3 SPACE FLIGHT AS A ‘DANGEROUS SPORT’ IN ENGLISH LAW As previously alluded to, it is possible that this kind of space flight could be legally regarded as a ‘dangerous sport’, with motor-racing or aerobatics possibly the most analogous activities. In the motorsport-related case of Stratton v. Hughes,94 Swinton Thomas L.J. correctly stated that ‘Many sports, such as motor racing, rafting, mountaineering, rock climbing and many others have innate dangers. That is part of their appeal’.95 Predictably,ifanoperatorofmotorsport activities (or the legal occupier of such premises) can show that they have discharged their duty of care in respect of reasonable safety there will be no liability for damages. In the case of Wattleworth v. Goodwood96 theclaimantsuedGoodwoodRoadRacingCompanywhowere the occupier of the circuit where her husbandhadbeenfatallyinjuredinamotor racingaccident.Thecaserevolvedaroundthesafetyofthecrashbarrierinto which her husband’s car had crashed. It was held that, since Goodward had consulted experts on the barriers safety features that they had discharged their duty of care under the 1957 Act. As with all such sports the operators will be subject to the three-stage test in Caparo v Dickman97 in respect of whether a duty of care should arise (whether harm is reasonably foreseeable, whether there is sufficient proximity between the parties

91 See supra n. 49. 92 See supra n. 87. 93 14 CFR § 401, 415, Human Space Flight Requirements for Crew and Space Flight Participants; Proposed Rule, Federal Register/Vol. 70, No. 249/Thursday, 29 Dec. 2005/Proposed Rules at 77269. 94 unreported, 17 Mar. 1998. 95 See supra n. 56; NASA Armstrong Flight Research Centre Report actually designate pioneering commercial spaceflight as equally likely to end in catastrophic failure or fatality as high altitude mountaineering. 96 [2004] P.I.Q.R. P24. 97 [1990] UKHL 2. CONSENT IN COMMERCIAL SPACE TRAVEL 383 and whether it is reasonable to impose such a duty). An instructive line of authority regarding the scope of liability to claimants participating in patently hazardous activities includes the case of Poppleton v. Trustees of the Portsmouth Youth Activities Committee.98 In this case, May LJ in the Court of Appeal, starkly pronounced that ‘Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materializes so that they are injured’.99 This case involved a claimant who sustained severe injuries because of a fall on to some coconut matting from a bouldering wall. It was held that the risk of falling inherent in the activity was ‘plainly obvious’ and that it would be impossible to remove all risk involved. Judgment was accordingly given for the defendants. Moreover, in the case of Tomlinson v. Congleton Borough Council100 on Occupiers Liability, Lord Hoffman stated, ‘The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them.’101 A recent High Court case which may be regarded as analogous to the legal essence of the space tourism experience, is Maylin v. Dacorum Sports Trust (t/a XC Sportspace).102 This case concerned the customer of an indoor climbing centre who had signed a disclaimer before participating in what turned out to be injurious climbing activities. The form included a ‘Participation Statement’ which read: “The British Mountain Council recognises that climbing and mountaineering are activities with a danger of personal injury or death. Participants in these activities should be aware of and accept these risks and be responsible for their own actions103 … and went on to require a ‘yes’ or ‘no’ answer to the following questions: Do you understand that failure to exercise due care could result in your injury or death? Do you have any questions regarding the application and Conditions of Use or Rules? Do you agree to abide by the Rules of the climbing centre?”104 The claimant went on to fall from a bouldering wall which caused her to suffer a fractured disc in her back. At paragraph 29, McKenna J, referencing the case of Poppleton,105 stated: There being, in my judgment, inherent and obvious risks in the activity which Miss Maylin was embarked upon, the law, as May LJ makes clear in Poppleton, does not require the Defendant to train,106 supervise or warn and again, as is made clear in Poppleton, it

98 [2009] P.I.Q.R. P1. 99 Ibid., at para. 1. 100 [2004] 1 A.C. 46. 101 Ibid., at para. 46. 102 [2017] EWHC 378 (QB). 103 Ibid., at para. 9. 104 Ibid., at para. 10. 105 See supra n. 97. 106 Where this line of reasoning terminates may be with s18 of the Space Industry Act which provides that regulations ‘may make provision with respect to the training, qualifications and medical fitness of 384 AIR AND SPACE LAW

makes no difference that the Defendant charged Miss Maylin to use the bouldering wall and, as it seems to me, that the claim fails on that ground. Moreover, as to the amount of warnings displayed throughout the site: there were at least two notices warning users of the bouldering wall that matting did not make it any safer and at least one notice that spelt out that broken or sprained limbs are common. These were located on both sides of the entrance to the bouldering area and were there to be seen, whether or not the Claimant in fact read them. The mere fact that the Defendant could have done more by perhaps having a receptionist spell out the risks verbally or by handing out a photocopy of the notice warning of the risks and that the mat did not make it any safer is nothing to the point if the steps which were taken were themselves sufficient, as I find they were.107 The most relevant and potentially impactful case of all in this context, perhaps, is Watson v. British Boxing Board of Control.108 The boxer, Michael Watson, sustained a near-fatal brain injury in the title fight for the W.B.O. super-middleweight title against Chris Eubank and sued the British Boxing Board of Control for the provision of inadequate ringside medical facilities. It was held that the British Boxing Board of Control, by virtue of their proximity to the claimant and being in overall control of proceedings, was under a duty to make regulations ensuring effective treatment of personal injuries. In his reasoning, Lord Phillips MR referred to the Court of Appeal case of Perrett v. Collins109 in which it was held that an aircraft inspector owed a duty to take reasonable care throughout his inspections to those ultimately flying the inspected aircraft. It is worth noting at this stage, the ambit of section 37 of the Space Industry Act which gives the regulator blanket immunity from liability in the case of taking or failing to take any action save for instances of ‘gross negligence’. Following the reasoning in Watson, the space flight operator will potentially be under a duty of care to make rules which ensure, so far as is reasonably practicable, the overall safety of those participating in such activities. This may also mean the provision of warnings under the Occupiers Liability Act 1957110 as per the cases of Poppleton and Maylin. The case law suggests that, in the absence of any effective informed consent, an operator may still not be liable for injuries to an SFP in any case if they can demonstrate that they have provided sufficient warning elsewhere which puts them on notice of the risk of physical injury or danger of death.

individuals – (a) taking part in, or otherwise engaged in connection with, spaceflight activities’. Whether such regulations will indeed make provision for training is yet to be seen. 107 See supra n. 104. 108 [2001] 2 W.L.R.1256. 109 [1998] 2 Lloyds Rep 255. 110 c.31. CONSENT IN COMMERCIAL SPACE TRAVEL 385

4 OTHER ISSUES ARISING

4.1 CONTRACT LAW

Regardless of how comprehensibly the informed consent of the SFP has been obtained, or how many warnings are given, section 2(1) of the Unfair Contract Terms Act 1977111 which provides that liability for personal injury or death caused by negligence cannot be excluded.112 Moreover, the Consumer Rights Act 2015113 states that ‘A term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury’114 may be regarded as unfair. Furthermore, section 65(1) provides that ‘A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.’ and, further and instruc- tively, ‘Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.’ at section 65(2). What constitutes a ‘consumer notice’ is broad, defined by section 61 as being a notice which ‘… relates to rights or obligations as between a trader and a consumer, or … purports to exclude or restrict a trader’s liability to a consumer’115 and, further, that a ‘notice’‘includes an announcement, whether or not in writing, and any other communication or purported communication’.116 It seems likely, therefore, that any materials describ- ing the levels of risk and any potential hazards could be captured by these provisions insofar as their ultimate aim is to exclude liability through negligence. Exclusion clauses aside, whether an implied term of any contract for private commercial space travel could be to return the SFP safely to earth following any such voyage is unlikely at common law. It would be difficult to argue that such a term would be implied in fact117 since neither the Operator or potential SFP in full and informed knowledge of the risks involved would be likely to say that it ‘goes without saying’ that such a term should be implied. In statute, however, section 13 of the Supply of Goods and Services Act 1982118 implies a term ‘that the supplier will carry out the service with reasonable care and skill’.

111 c 50. 112 Also noted by Thomas Cheney, supra n. 76. 113 C.15. 114 Sch. 2(1). 115 S61(4)(a) – (b). 116 S64(8). 117 See the five limbed formula laid down by the Privy Council in BP Refinery (Westernport) Pty Ltd v. Shire of Hastings [1977] UKPC 13. 118 C.29. 386 AIR AND SPACE LAW

Further instruction can be taken from Council Directive 93/13 on Unfair Terms in Consumer Contracts,119 particularly Article 3 (1) and (2) on contract terms which have not been individually negotiated whereby a ‘significant imbal- ance in the parties’ rights and obligations … (arise) under the contract, to the detriment of the consumer’. The domestic progeny of this Directive can be found throughout Schedule 2 of the Consumer Rights Act 2015. Whether the ultimate form that the informed consent takes is a valid one, it appears, then, that a second head of challenge would emerge under the law of contract whereby the issue of negligence on part of the operator, or, whether the operator exercised reasonable care and skill in the provision of the spaceflight activity, would be the crux of the matter.

4.2 LIABILITY TO PERSONNEL OTHER THAN SPACE TOURISTS

Section 34(5) of the Space Industry Act provides that regulations may provide that operator licenses include ceilings of liability ‘… in respect of injury or damage that … (b) is sustained in prescribed circumstances or by persons of prescribed descrip- tions’. Just whom these ‘persons of prescribed descriptions’ are is yet to be seen. The United States 1988 Launch Amendments to the Commercial Space Launch Act severely limited liability to what were termed third parties to persons or entities other than the United States, its agencies/contractors/subcontractors involved in the launch services in addition to the licensee and customers/their contractors and subcontractors. As was subsequently pointed out, these individuals were excluded ‘… because severe injury and property damage are the most likely to occur on or near the launch facility during the actual launch …’120 and, with third-party liability restricted to the less likely ‘down-range injury’.121 Under s17 of the Space Industry Act, personnel such as these would come within the definition of ‘Individuals taking part in spaceflight activities etc’ by virtue of section 1(6). Cases involving actual employees having to give informed consent as part of their work-role are rare. A High Court decision from 2015, Cassley and ors v. GMP Securities Europe LLP and anor122 held that a waiver produced by an employer did not serve to negate an employer’s duty of care towards its employee in a case involving a company executive killed in an air-crash. The waiver, in this case, was not signed but, interestingly, Coulson J, in agreement with counsel commented that, in any case, had it been signed ‘… it would have been invalid under the

119 EU: Directive 93/13/EEC of 5 Apr. 1993. 120 See supra n. 26, at 514. 121 Ibid. 122 [2015] EWHC 722. CONSENT IN COMMERCIAL SPACE TRAVEL 387

Unfair Contract Terms Act 1977 as an attempt to exclude liability for death or personal injury’123 This point was neither commented upon or disputed by the Court of Appeal.124 Rather than encourage sinister practices such as these for those working within this industry, the international space community should act to provide internationally agreed minimum standards of liability.

4.3 POTENTIAL FOR DISCLOSURE OF TRADE SECRETS If the regulator follows the US approach in the sense of giving a large volume of information to the SFP, such information could include information relating to technological construction, engineering or other commercially sensitive informa- tion. Should the SFP request information on, for example, the way in which certain dangerous design aspects have been rectified. If informed consent provi- sions are deemed to apply to the crew or other personnel, the law in Faccanda Chicken v. Fowler125 may apply with the operator having recourse to the Trade Secrets Enforcement Regulations 2018. Any impact assessment by the regulator on informed consent should take this under consideration.

5 CONCLUSIONS The substantial catalogue of potential physiological and psychological impact upon an SFP indicates that incredible care must be given owing to the multitude of hazards, great and small. These appear to be much broader in scope than those faced by a racing driver and certainly much broader than those faced by a climber at an indoor bouldering centre. They could present a veritable tightrope to those on whom the drafting of such informed consent provisions rests. As Smith writes, ‘… There is merit in addressing the concept of informed consent by statute in advance …’.126 In so considering, the regulator/Parliament are likely to consider a full-scale legal transplant of the United States Federal regime. As has been written, the intricacies of the growing law on informed consent in the UK as it presently stands are likely to be incompatible with the practice of giving an SFP as much information as possible on the matter as appears to be the United States approach. A lay SFP is likely to be overwhelmed and

123 Ibid., para. 292. 124 [2016] EWCA Civ 711. 125 [1986] 3 W.L.R. 288. 126 Lesley Jane Smith, Taking a Stance: Managing Liability for Commercial Space Activities, in Commercial Uses of Space and Space Tourism, Legal and Policy Aspects 43 (J. Wouters, Philip De Man & Rik Hansen eds, Elgar 2017). 388 AIR AND SPACE LAW unable to cope with such an influx of highly technical information and consent could be negated. If the concept is determined to have the same meaning as it does within the medical context then a highly-intricate balancing act must be struck between informing and bombarding. It is submitted that ‘harmonizing’ or conflating the Space Industry Act con- ception of informed consent with the term as used in the medical context would not be helpful. Providing that the context is actual ‘space tourists’ and not profes- sional launchpad staff, the best approach to the informed consent problem may be to establish a statutory ‘informed consent’ regime which is distinct to the medical context and clearly designated as such within the wording of the instrument, the basic requirement being to make sure that the SFP fully understands that the activity they are about to partake in is highly likely to result in death or serious bodily/psychological injury. This would not necessarily be true ‘informed consent’ in the medical context but, instead, would ensure that all who undertake this pioneering exercise do so in full knowledge that they may not come back in one piece – if at all. The purpose of such an exercise should not be to avoid liability, but to counterbalance any aggressive or misleading marketing practices or, indeed, any naïve ‘Buck Rogers’ fantasy held by the potential SFP. Resultantly, the timing of any such informed consent should be considered by the regulator – post-con- tract informed consent could become complicated should the individual change his or her mind after having already paid a considerable amount of money. The regulator should consider ‘clawback’ provisions in anticipation. One issue with establishing ‘Space Law Informed Consent’ as a separate entity from medical informed consent would, in all likelihood, be a confusing cross- fertilization of precedents as the two areas borrow concepts from and influence each other. Moreover, in the absence of, as mentioned, an express statutory proviso to the contrary maintaining the Space Law regime as sui generis, the concept would doubtlessly grow and become intertwined with practices akin to informed consent within the ‘dangerous sport’ context (which themselves may carry the influence of the medical context). Issues of future modelling aside, whether any such consent will, if validly obtained, be of any protective value may stand to be judged by the law relating to warnings. As seen from the cases of Maylin, Poppleton and Congleton,inan Occupiers Liability context the law seems cut-throat. On another, more sinister point, the position regarding injuries sustained through dangerous sports in general, essentially, is that a participant can be taken to have consented to any injury that is caused within the rules of the game, such as a footballer suffering a broken leg whilst on the receiving end of a lawfully executed slide tackle exercised with the requisite degree of care and skill relative to the level of competition. Not without controversy, in boxing this can mean the suffering of a fatal brain injury by one of CONSENT IN COMMERCIAL SPACE TRAVEL 389 the competitors.127 If Space Tourism is to be classified as a dangerous sport, it is at least arguable that, consent, be it informed or not, is given to the full spectrum of foreseeable injuries arising as these are all reasonable within the life-or-death ‘rules of the game’ that underpin experimental space travel. Private accident insurance for SFP’s could be another consideration. Indeed, Smith has written, convincingly, that the early trials of commercial space flights be undertaken by members of the armed forces covered by their respective branches of insurance or, indeed, require insurance to be compulsory. In this vein, however, one is reminded that the astronauts of the were unable to obtain life insurance128 and, therefore, without a sensible liability ceiling, this is likely to increase costs dramatically. Of course, this may not be a particular issue for those wealthy enough to pay for a flight into space. Commercial space tourism – in one form or another – looks set to become relatively widespread in the short to medium-term future. In addition to the UK and the US, many states are promulgating national legislation in respect of private space flight. As Von Der Dunk has written: such national legislation threatens to preclude any uniform interpretation and application of the terms of the Liability Convention. Gaps and overlaps in terms of scope may appear, threatening the consistency and uniformity of the application of the international liability regime as a whole, and thereby its effective operation.129 In this area there is substantial risk of the international regime fragmenting. A new international agreement is called for, perhaps in the guise of the 1929 Warsaw Convention, covering liability to nationals of a launching state engaged in private space activities-including space tourists. More immediately, if negligence claims are to be avoided – and insurance costs to be stabilized for Operators – liability towards space tourists should be capped at an equitable amount under section 34(5) on a strict liability basis in line with the spirit of the Treaties by way of conceptual alignment until an international consensus is reached.

127 Although not a deliberate punch below the belt nor the removal of an ear. 128 See D. Scott & A. Leonov, Two Sides of the Moon, 345 (Bedford Square Books, London 2004). 129 Von der Dunk, The 1972 Liability Convention: Enhancing Adherence and Effective Application, (1998). Space, Cyber, and Telecommunications Law Program Faculty Publications 371 , https://digitalcommons.unl. edu/spacelaw/50.