Archive | October, 2011

Should pitch inspections be kicked into the long grass?: Sutton v. Syston Rugby Football Club Ltd [2011] EWCA Civ 1182

October 31, 2011

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The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.

Read the BBC news report or the full case transcript.

 

FACTS OF THE CASE

On 2nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.

About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub [3].

The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” [5]

They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:

1)    What was the appropriate standard to judge the quality of the inspection

2)    Whether this inspection would have revealed the stub (causation)

 

INSPECTION STANDARD

The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”

So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.

Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:

Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas [13].

In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!

This test therefore rejects the earlier first instance decision [11]:

“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”

 

WOULD AN INSPECTION HAVE REVEALED THE STUB?

Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service [2003] 1 AC 32, the Court of Appeal was unsure that the stub could have been discovered [17]. In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails [17].

 

WIDER IMPLICATIONS

An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at [13] Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

 Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” [18]

I suppose this begs the obvious question, when should courts interfere?

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Battle of the Beers

October 24, 2011

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Sports Litigation Alert (Volume 8, Issue 19) just published a short piece I wrote entitled, ‘Battle of the Beers.’ It is reproduced below:

—–

In a country where ice hockey and cold beer go hand in glove, two of Canada’s biggest breweries have been battling it out over sponsorship rights as the official beer of the National Hockey League. On 3 June 2011, Newbould J. of the Ontario Superior Court of Justice held that the NHL and Labatt Brewing Company Limited reached a binding sponsorship agreement on 12 November 2010 which would have run from July 1, 2011 — June 30, 2014. As such, the NHL was consequently not free to enter into a similar but superior agreement with Molson Coors Canada Inc. on 8 February 2011. The NHL and Molson appealed and the court held in their favor on 12 July 2011.

In a ruling which has left Labatts all wet (and sudsy), the Court of Appeal for Ontario found that Newbould J. erred by making his finding in a manner not anchored to the pleadings, evidence, positions or submissions of any of the parties to the case. It was accordingly “procedurally unfair, or contrary to natural justice” for this conclusion to be reached [5]. Citing Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), the court held that a theory of liability which emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process and thus raises concerns about the reliability of that theory [6].

It is noteworthy that Labatt did not plead that the parties had reached a binding sponsorship agreement on 12 November 2010 [12]. Labatt did not assert during the application hearing that a binding sponsorship agreement existed between the parties and expressly disavowed that it had reached a binding sponsorship agreement with the NHL [13]. The appeals court accepted the NHL’s submission that if it had known that the existence of a binding sponsorship agreement between the NHL and Labatt was at issue, it would have conducted its defence to Labatt’s application in a very different fashion [15].

While hockey is a small fish in the big frozen pond of professional sport relative to their much larger counterparts in football, baseball and basketball, there is still significant money to be made (and lost). Kyle Norrington, marketing director of Budweiser and regional brands for Labatt in Canada, commented in an affidavit filed with the Ontario Superior Court of Justice on the relationship of hockey and beer: “The NHL and the access it provides to Labatt … is the single greatest opportunity to grow Labatt’s share in Canada. The nexus of sports / heritage / emotional / tradition in hockey has no other Canadian comparable.” In contrast to the $37.2 million over three years agreement that Labatt was pursuing, the Molson deal is worth a reported $375 million over seven years.

It is the combination of the trial judge’s analysis of the renewal option in the 2002 Labatt/NHL agreement and his conclusion that a binding agreement was reached at the 12 November 2010 meeting that created the procedural unfairness problem [18]. Quoting Cronk J.A. in Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 75 O.R. (3d) 85 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 310, the appeals court held that, “at the end of the day, the issues between the parties are defined by and confined to those pleaded” [53]. Since this did not happen, the NHL and Molson were denied procedural fairness and the judgment of Newbould J. was set aside.

Revenge is a beverage best served cold. Earlier this year, Coors Light lost the bragging and sponsorship rights as the official beer of the National Football League to Anheuser-Busch for $1.2 billion over six years. The $375 million Molson Coors/NHL deal reportedly includes approximately $100 million for the rights, $100 million in guaranteed advertising buys and $100 million in activation costs for staging special promotions to capitalize on its rights.

On 6 October 2011, Labatt disclosed that it had received confirmation that the Ontario Superior Court of Justice had dismissed its suit against the NHL and Molson Coors thus ending this round of the battle of the beers. The court plans to release the reasons behind its decision at a later date and Labatt said it would review its legal options at that time.

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Police recommend assault charges in lacrosse head stomping incident

October 20, 2011

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The Canary reported in June 2011 that the Royal Canadian Mounted Police (RCMP) were investigating an incident in which 15 year old Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The RCMP has just recommended to the Crown that a charge of simple assault be laid (click here for Kamloops Daily News article).

At the time of the incident, RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?’

The courts in BC are not unique in their inconsistent approach to adjudicating sports violence. At its core, the courts struggle with how to accommodate the role of violence in sport and the extent to which participants consent to injurious force which is prohibited by the rules but may be permitted within the culture of the game. For example, in the rugby case of R v. TNB (BCPC 0117) in 2009, Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was found not guilty on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

With respect to J. Frame’s judgment in R v. TNB, if the lacrosse head stomping allegations are proven true, it is hoped that the court will make a bright line distinction that such conduct is criminal – period – irrespective of any fantasies relating to the ‘unwritten code’ or playing culture of the game, and that the proper means of penalizing such behaviour is not by a referee but through the courts.

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Risk, free markets and free will

October 17, 2011

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It is interesting to note that in the last couple of days, National Football League Pittsburgh Steelers 2010 NFL Defensive Player of the Year and All-Pro safety Troy Polamalu sustained a concussion in a game with the Jacksonville Jaguars, Jay Beagle of the National Hockey League Washington Capitals was knocked out cold (colloquialism for being rendered unconscious) from a punch at the fists of Arron Asham of the Pittsburgh Penguins, a 27 year old man died 300 m from the finish line at the Scotiabank Toronto Waterfront Marathon, and 2005 IndyCar champion Dan Wheldon died in a crash at the Las Vegas Motor Speedway.

The point here isn’t to chronicle the injuries and deaths in sport but to rhetorically ask – in connecting the dots between these sports which each possess varying degrees of inherent risk and its athletes who consent to those risks ordinarily inherent in the sport – despite the different outcomes from brain injuries to fatalities, is acknowledgement and assumption of those risks enough or should more be done?

Or are these athletes participating on their own free will, motivated by vanity and insecurity (apologies to Simple Minds), and benefiting from what the market will bear? Or are they being exploited by commercial forces that regard them as collateral damage in their pursuit of the bottom line?

Just asking.

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Double Jeopardy: CAS 2011/0/2422 USOC v. IOC

October 17, 2011

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Read the CAS verdictIOC rules; WADA Code

The case of the United States Olympic Committee (USOC) v. International Olympic Committee (IOC) (CAS 2011/O/2422) concerned the validity and enforceability of a particular IOC regulation prohibiting drug violators from competing in the next edition of the Olympic Games following their period of suspension.

The IOC rule was known as the “Osaka rule” and was enacted in Japan on 27 June 2008:

“The IOC Executive Board, in accordance with Rule 19.3.10 OC and pursuant to Rule 45 OC, hereby issues the following rules regarding participation in the Olympic Games:

  1. Any person who has been sanctioned with a suspension of more than six months by any anti-doping organization for any violation of any anti-doping regulations may not participate, in any capacity, in the next edition of the Games of the Olympiad and of the Olympic Winter Games following the date of expiry of such suspension.
  2. These regulations apply to violations of any anti-doping regulations that are committed as of 1 July 2008. They are notified to all International Federations, to all National Olympic Committee and to all Organizing Committees for the Olympic Games.“

While this rule applied to all Olympic athletes, in practice only a certain sub-set of athletes were affected:

  • Athletes not guilty of a doping violation – rule does not apply
  • Athletes guilty of a doping violation (with less than 6 months suspension) – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension) who wish to compete in non-Olympic competitions  – rule does not apply
  • Athletes guilty of a doping violation (over 6 months suspension), but not selected by their National Olympic Committee (NOC) – rule does not apply
  • Athlete guilty of a doping violation, still serving their suspension – rule has no immediate effect
  • Athlete guilty of a doping violation at an Olympic Games  – rule has no immediate effect
  • Athlete guilty of a doping violation (over 6 months suspension), and selected by their National Olympic Committee (NOC) – RULE APPLIES

The case was brought against the IOC because one of those affected athletes, LaShawn Merritt was prevented by the rule from representing the USA at London 2012. Merritt had previously tested positive in an out-of-competition test for ExtenZe (a ‘male performance’ product containing the banned substance DHEA); and while the doping panel accepted that the substance was used inadvertently and that there was no intention to dope, Merritt still received a ban from competitions.

The crux of the case can be seen from Merritt’s current position. His ban ended earlier this year on 27 July 2011, however despite his eligibility to compete in any other competition, Merritt was still prevented from competing in next summer’s 2012 Olympics Games. He and USOC argue that this additional ban is unfair for two main reasons, because it violated the principle of double jeopardy (ne bis in idem) [7.2] and that the imposition of an additional doping sanction was in contravention of the WADA Code (article 23.2.2). USOC also argued that the rule resulted in unjustifiable discrimination between athletes and that the IOC rule should be “cancelled and declared null and void, or alternatively, that a mechanism be allowed for a case by case review of the appropriateness of the applicability of the Decision to each specific athlete” [2.9]

By contrast, the IOC argued that the rule constituted an eligibility rule [7.4] as to who could qualify as a competitor in the Olympics under Rule 45.2 of the Olympic Charter rather than as an additional sanction, that the rule protected the values of the Olympic Movement from the “scourge of doping” [7.5], that athletes had no automatic right to participate in an Olympic event [7.8] and that the rule did not conflict with double jeopardy (ne bis in idem), as it pursued a wholly different purpose than an anti-doping ineligibility sanction [7.8].

 

THE CAS RULING

All parties recognised that uncertainty surrounding the application of the decision was unhelpful, particularly since CAS had previously provided two Advisory Opinions in this area, one requested by the IOC had concluded that Rule 45.2 was an eligibility rule [8.7], while a Confidential Opinion to an unnamed International Sporting Federation (ISF) held that the application of a similar rule by an ISF was intended to be penal in nature and therefore could not constitute an eligibility rule [8.8].

It was therefore agreed that CAS had the ability to definitively settle the dispute (R27 of the CAS Code) and three arbitrators were chosen to hear the case: Professor Richard H McLaren (Canada), Me. Michele Bernasconi (Switzerland), and David w. Rivkin, Esq. (USA).

Both parties agreed that the applicable regulations of the arbitration (R58 of the CAS Code) should be:

  • Swiss Law (including fundamental principles)
  • the Olympic Charter (OC), in particular, rules 41 (eligibility), 44 (applicability of WADA Code) & 45 (Olympic participation)
  • and the WADA Code, in particular, s.10.2 (sanctions for 1st violation), s20.1.1 (IOC implementation of Code), 23.2.2 (prohibition against substantive changes to the Code) and appendix 1 (definition of ineligibility)

WADA also independently submitted an amicus curiae brief on 13 July 2011 to ensure that the arbitration panel would have as comprehensive a view as possible of the potential issues surrounding the IOC regulation, particularly since there was a suspicion that tribunal doping sanctions were being manipulated to stay under 6 months to avoid being caught by this rule [3.11].

 

ELIGIBILITY RULES

Previous CAS Jurisprudence (RFEC v. Alejandro Valverde v. UCI (CAS 2007/O/1381 [76]) suggested that: “qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability for the type of competition in question.” [8.9]. In particular it was noted that qualifying (eligibility) rules define certain attributes or formalities required of athletes, rather than sanctioning undesirable behaviour.

Because IOC Rule 44 expressly incorporated the WADA Code as underpinning the Olympic Games, the IOC were bound by WADA’s definition of ineligibility. Unfortunately for them, under Article 10 of the WADA Code, ineligibility was held to be a sanction. In making this decision, the Panel held that the fact that an athlete could participate at other International competitions was irrelevant [8.16].

From this conclusion, the IOC was always going to lose as under Article 23.2.2 of the WADA Code, signatories of the Code could not add any additional provisions “which change the effect of […] the periods of eligibility provided for in Article 10 of the WADA Code.”

Because Rule 44 increased the period of ineligibility from the original doping violation (between 6months to 2 years) to the number of days until the next Olympics Games, the IOC regulation was not in compliance with the WADA Code and as such had to be struck out as invalid [8.44].

The Panel did not state that such an additional sanction could never occur, simply that such a rule needed to be incorporated within Article 10 of the WADA Code when the Code was next reviewed. To satisfy any proportionality requirements, the Panel also recommended that a first instance adjudicatory body should review any appeals [8.27].

 

The British Olympic Association (BOA) By-law

Much of the talk this week has been over whether the BOA by-law is legitimate in the wake of this ruling, and what implications this might have for Dwayne Chambers and David Millar. BOA Bylaw 25 sets out that:

“any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the Great Britain Olympic team”.

Importantly, the bye-law also gives individuals the right to appeal (something that distinguishes the BOA Bye-Law from that of other NOCs).

Taken at face value though, the same issues from the USOC case apply, in that any athlete guilty of a doping violation is ineligible for selection on a British Olympic team. If this USOC decision was extended to the BOA, then it is strongly arguable that this requirement also constitutes a sanction attributable to the same behaviour and resulting in the same consequence (ineligibility from competition) [8.36]. Or more colloquially, If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck!

Again, taken at face value, the only significant difference between the two rules would seem to be that the BOA by-law has an inherent appeals process, which would negate any proportionality requirement.

Is this enough though, arguably no.

There is one alternative argument though that may solve the BOA problem. At footnote 11 of the USOC decision, the CAS Panel noted that:

“If the IOC issued a rule that persons convicted of a violent felony were not eligible to participate in the Olympic Games, such a rule would likely not violate the principle of ne bis in idem, because the effective purpose of that sanction would be different from the purpose of the criminal penalty associated with that violent felony.”

Therein might lie a possible defence for the BOA. If the BOA rule was based around a different purpose than simply a sanction associated with taking drugs, but was linked to eligibility, for example an athlete’s role as an ambassador representing their country, then following footnote 11, it could be argued that the by-law had a different purpose and was therefore valid and enforceable. Such a stance echoes the comments of Colin Jackson, interviewed immediately after the judgment by the BBC:

http://news.bbc.co.uk/sport1/hi/olympics/15199159.stm

If the BOA by-law was interpreted as a ‘moral / ethical behaviour clause’, should it be limited to just drugs and doping violations though? Do we want athletes representing our country who were guilty of criminal offences? If the by-law was extended this would also help in removing the WADA ‘consistency’ argument, as different jurisdictions around the world impose different criminal sanctions and offences.

Or should we just fall into line with WADA and the rest of the world and reduce our rules to the lowest common denominator?

http://news.bbc.co.uk/sport1/hi/olympics/15159569.stm

 

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Off Duty

October 16, 2011

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Solicitors Journal (Vol 155 no 38) just published a piece (click here for the full article) Kris and I wrote “Off duty.’ Here are a few excerpts:

—–

The High Court threw a lifeline of common sense to private homeowners in Grimes v Hawkins [2011] EWHC 2004 (QB), reasserting the Court of Appeal’s approach in Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ 646 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 materialises so that they are injured.

The 18-year-old claimant in question was an invited guest to a midnight house party hosted by Ms Katie Hawkins at her parents’ home while they were away for the evening. As well as extensive gardens, the house also contained a heated swimming pool housed in a separate building. Midway into the party, amid the general party atmosphere, Ms Grimes dived into the pool, tragically striking the bottom of the pool with her head, rendering her tetraplegic. She subsequently brought a claim against Ms Hawkins’ father alleging a breach of duty in both common law negligence and under section 2(1) of the Occupiers Liability Act 1957 for allowing her to dive into the pool.

…..

As Mrs Justice Thirlwall DBE acknowledged in her ruling, the difficulty claimants in this area have is that diving into shallow or unknown water is a pursuit which is inherently and obviously dangerous if performed incorrectly (Evans v Kosmar [2007] EWCA Civ 1003). In this instance, the pool was well-maintained, with no hidden dangers and experts acknowledged that it was possible to dive safely within it. Indeed, the claimant herself was an accomplished swimmer with a number of qualifications and, on the night in question, she had surveyed the pool by swimming for approximately 30 minutes. The fact that she consciously dived diagonally towards the deep end only served to emphasise the superfluous nature of any warnings or depth markings, had they been present on the pool house walls.

It is not enough though to argue that we should ensure the primacy of free will for consenting autonomous adults to challenge their own limits. See for instance Tomlinson v Congleton Borough Council [2002] UKHL 47 where Lord Hoffman said: “If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair.” The corollary must also follow that participants will not be protected from the consequences of their own actions, no matter how tragic these outcomes might be. As such, Mr Hawkins did not owe a duty to put the pool out of bounds or to prevent the claimant from diving in.

…..

While the outcome for Ms Grimes is tragic, the case reaffirms the protection given to defendants and landowners who might currently be drowning in a sea of negligence or occupiers’ liability claims. Some might call it common sense, others an open and obvious risk, but in the delicate balance between allowing individual autonomy and paternalistically protecting claimants from themselves, liability will generally fall on the party that assumed the responsibility for the activity. Sometimes, though, allowing such freedoms has its own cost.

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Risk and Responsibility

October 14, 2011

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Gripped climbing magazine just published an article (http://gripped.com/2011/10/sections/articles/risk-and-responsibility/) I wrote entitled, “Risk and Responsibility.” It is reproduced below:

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I’m troubled by the idea that the climbing community is slowly, albeit inexorably, creeping towards emasculating risk from climbing. There’s a connection – I think – with the attitude of entitlement that many of our youth today possess. At school, it manifests itself in the way they believe they should receive grades they perhaps don’t deserve. On the rock, this is evident in how some climbers think they should have free access to every cliff or that challenging climbs should not be dangerous.

For example, it’s become increasingly normal for climbers to be guided up long routes like Mt. Everest. There is nothing wrong with being guided (I work in a university program that trains guides), but the attitude of deferring decisions to a guide has increasingly extended to blaming others when things go sideways. Modern climbers get sandbagged on old school 5.9s and complain about the grades or add bolts to existing lines because they think the routes are too scary and someone could get hurt.

It’s more than the style-versus-safety debate. The current mindset almost disavows risk. And when someone does get injured, instead of looking inwards and understanding how it could have happened, we look to the courts for restitution.

Climbing has fallen on hard times:

  • A bolt breaks in Australia resulting in the death of a climber and a lawsuit is pending.
  • A commercially-guided expedition doesn’t summit and the operator is sued for breach of contract.
  • A climber is injured during a fall and sues the climbing gym.
  • A guide is sued after the alpine ice he’s leading dinner plates causing him to fall and pull out the belay anchor resulting in the death of his client.
  • Belayers and the manufacturers of the belay devices are sued for not catching a fall.
  • A climber dies during a descent in the Tetons and the National Park Service is sued for a failed search and rescue response.

The list goes on.

The courts have ironically become the last line of defence in bringing personal responsibility back to climbing. In the majority of the cases cited above, the lawsuits were unsuccessful but that doesn’t change the fact that those climbers believed there were entitled to compensation when shit happened.

It seems we’re forgetting that injury and death are the natural consequences of playing in the uncontrollable environment of the vertical arena. We climb superficially aware that we can get hurt but act surprised when someone actually is injured. The fact is there is a statistical likelihood that you will get hurt while climbing. While risks can be managed and minimized, they cannot be eliminated.

There’s been an almost a subconscious extending of the safety net, security and predictability found in climbing gyms to the mountains and crags. This is a dangerous drift. It’s like pounding the square peg of adventure and the mountains into the round hole of automatic belay devices and climbing gyms. It just doesn’t fit nor does it make sense.

The climbing instruction Bible is aptly entitled Freedom of the Hills. Implicit in its title is that climbers have the right to take risks, which may unfortunately include decisions that result in their deaths. Climbers accept – or should accept – that climbing is inherently dangerous and that they can get hurt in any number of ways: falling, falling rock, bad rock, bad pro placement, bad bolt placement, etc.

Depending on the route or the circumstances (indoors or out, rock or ice, sport or trad, etc.) climbing may not be as harmful as playing Russian roulette but it is inherently dangerous. For example, the chief attraction to sport climbing is arguably the strength, skill and artistry required to ascend a route. Exposure to risk is secondary to the aesthetic and physical challenge of climbing. The biggest fear on a sport route isn’t getting hurt but fear of failure and not ticking the line. But you can still get hurt clipping bolts. This is very different when compared to what an alpinist is exposed to on a north face where the potential for rock or ice fall and shitty rock always exists and failure takes on an entirely different – and potentially lethal – meaning.

If you want to stay safe, you should not venture outdoors. Stay inside, removed from all risk, and watch your soul get eaten away by tedium. You may not get physically hurt but you will also not experience the independence, self-reliance, beauty, and wisdom that climbing can offer.

Risk is integral to climbing. Some forms of climbing are, of course, more hazardous to your health and each type has its own rewards and tolerances for risk. We should not, however, confuse what is appropriate for gym climbing in terms of risk and safety, with what is acceptable for other forms of climbing. ‘Cuz it clearly isn’t but, as the above cases indicate, some people sure appear to be thinking along those lines.

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