Tag Archives: climbing

Hobbin v. Vertical Descents Ltd [2011] ScotsCS CSOH_207

January 11, 2012

0 Comments

The case of Sara Hobbin v. Vertical Descents seems eerily related to Jon’s earlier post on Heli-skiing (https://sportslawnews.wordpress.com/2012/01/07/perspective-and-probability/). Essentially this case concerns a head injury to a novice participant in a 2007 Canyoning activity in the Lake District.

Miss Hobbins (the claimant) and her then partner (Geraint Grace) had aimed to climb Ben Nevis, but wanted another activity to do the day before their climb. After reading an advertising leaflet for Vertical Descents Ltd (the defendants), they settled on Canyoning – “a method of descending canyons, streams, ravines and other water-courses by means of sliding, jumping and scrambling.” [2]. Indeed, Vertical Descents Ltd were an experienced outdoor activity company and had been the first company in Scotland to offer the activity.

After attending a safety briefing and signing a disclaimer form, the participants were given protective clothing (wetsuit, buoyancy aid and helmet) and driven to the easiest of the canyoning routes used by Vertical (Allt Gleann A’chaolis, near Kinlochleven).

The key problem for Miss Hobbin can be traced back to her failure to maintain her footing and balance during the activity. Initially, the Court heard how she was concerned prior to embarking whether her choice of footwear would be suitable (she wanted to wear baseball shoes in order to keep her hiking boots dry prior to the proposed climb the following day). At Vertical’s headquarters though, an instructor confirmed that this would be acceptable as the soft baseball shoe sole would enable them to establish “maximum contact with the surfaces” [7]. Sadly during the activity, this grip did not seem to help her. She became bogged down in marshy ground on the ascent [12], and slipped and fell in the water during the descent [14].

Ultimately the injury occurred when Miss Hobbin declined to make a jump of about 15ft into the water and was making her way down to a lower level to meet up with the rest of the group. As she was descending, she subsequently lost her footing on the rocks and fell, striking the back of her head. After a short period of time, the claimant was then assisted down the hill by her partner and an instructor and taken to hospital for observation.

In the Scottish Outer House, Court of Session, both parties argued that the claim depended on identifying the exact rock that the claimant was standing on, the Court however took a much broader view and focused on two main points:

1)      Whether the claimant should have been allowed to do the activity given that the descent was inherently risky and the claimant had been struggling with the ascent [26]. The Court however saw no reason why the claimant was unable or unwilling to continue the descent and this claim was struck out.

2)      The general credibility and reliability of the evidence as to how the accident occurred [34]. While Miss Hobbins credibility was not in question, the Court felt that her tiredness and inexperience with the topography of the canyon was not as reliable as that of the instructor (Graham Reid), who was well qualified and experienced, had led approx 80-100 canyoning trips [12] and was very familiar with the terrain and layout. As such the claim was dismissed and no liability found.

RISK

What is particularly interesting about this case is the discussion on perception of risk. Encouragingly, the Court relied on the dicta from Scout Association v. Barnes [2010] EWCA 1476 [34] acknowledging that it was not the function of the law to deter normal leisure activities. The Court also noted a number of points emphasising Miss Hobbins’ informed consent about the nature of the activity, in particular that she had:

  • Read Vertical Descent’s description of the activity (website / advertising literature)
  • Read and signed a disclaimer form for the activity which specifically highlighted the risks and nature of the canyoning [8]
  • Been given information by course instructors during a safety briefing and had been given the opportunity to ask questions
  • Been required to wear safety clothing (including a helmet)
  • Observed the site herself when she had reached the top of the ascent
  • Self-evaluated her own competence to perform the activity

Although the Court seemed approving of the claimant’s expert witness (Mr Barton) when he said that “it was the duty of an adventure company to keep risks within a tolerable level”, it did note that it was difficult to determine what constitutes the right measure of tolerance [31]. And while it is obiter in this case, therein lies the key to outdoor and adventure liability – what level of risk is acceptable? Should we have different tolerances for guides and paid clients, to hardy adventurers wishing to challenge their own limits?

As Jon’s last post foreshadowed, what is however difficult to reconcile is the perception that outdoor adventure activity is comparatively harmless:

  • At [4], the Court heard how Vertical’s website stated that “canyoning is a safe, fun and enjoyable activity for people of all ages and levels of fitness”
  • Throughout her evidence, the claimant repeated that she thought that the activity would be safe [31]
  • Mr Barton stated in cross examination that “persons on canyoning ‘taster days’ don’t want to be doing anything more risky than being on the High Street” [32] (although I suppose this depends on which High Street at what time of night!)

As Erin Langworthy’s recent Bungee Jump into the Zambezi River showed, the trouble with probabilities are that sometimes those rare accidents do happen. Is the solution therefore to ensure that consent to outdoor or adventurous activities becomes more akin to medical negligence where every material risk and percentage needs to be disclosed, or is it more akin to rugby – where consent is implied from mere participation in the activity?

The problem is that Leap of the integral of the random variable with respect to its probability measure just doesnt have the same catchy ring to it as ‘Leap of Faith’!

http://www.youtube.com/watch?v=VxkY0GGNVMM

Continue reading...

Risk and Responsibility

October 14, 2011

1 Comment

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:

—–

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.

Continue reading...

6 climbers fall to their deaths in the French Alps

June 30, 2011

0 Comments

Six climbers fell 200 m to their deaths in the French Alps. Their bodies were found at an altitude of 2,700 m on Neige Cordier Peak, 5 km from Villar-d’Arène in the Hautes-Alpes region south-east of Grenoble. The six French mountaineers were in two rope teams and had not gone far before they fell. While not a particularly difficult climb, the accident appears to have occurred at the most technical part of the ascent. Climbing conditions were ideal. It looks like there was no avalanche. The investigation is continuing. Click here for the article in The Guardian.

Without presupposing the outcome of the investigation, it is noteworthy that in response to an alarming number of falls on Denali / Mt. McKinley in Alaska in the 1990’s, the US National Park Service looked at the underlying causes of the falls. Daryl Miller, who was my leader on the Denali Rescue Team in 1997, led the study which showed that climbing teams roped together on steep terrain often have a false perception of security and that a high percentage of falls involve teams descending, roped together and with no fixed protection.

Continue reading...

Three climbers die in Glencoe Avalanche

January 27, 2009

0 Comments

The Mail on Sunday reports that three climbers from a party of seven, were killed in an avalanche while climbing to the summit of 3,300ft Buachaille Etive Mor in Glencoe. Apparently they had reached 2,700ft when the avalanche struck.

The paper reports that “an avalanche, which may have been started accidentally by another climber above them, smashed through the group sending them crashing 600ft down the mountain.”

“Hamish MacInnes, 78, a founder of the Avalanche Board which assesses the risks of avalanches in Scotland, said: “There are a lot of avalanches on this particular
mountain – this is one of many, but also one of the worst. In the steep parts the snow can’t accumulate, but these climbers were in a gully where snow can accumulate and that’s where the trouble was. “People have to assess for themselves what the risks are, and luck comes into it too. I think these people have been pretty unlucky.””
Source: http://www.dailymail.co.uk/news/article-1127171/Pictured-The-brothers-killed-avalanche-Scottish-Highlands.html

Continue reading...

Rob Gauntlett killed during ice climb

January 19, 2009

0 Comments

Rob Gauntlett, 21, the youngest Briton to climb Everest was killed alongside a school friend during an ice climb in the Alps.

“It is thought that the 21 year old were abseiling when a column  of ice fell and hit either them or their climbing pins, sending them crashing down 2,000 ft”

Source: Mail on Sunday, Independent: http://www.mailonsunday.co.uk/news/worldnews/article-1111824/Youngest-Briton-conquer-Everest-friend-killed-Alps-avalanche-tragedy.html; http://www.independent.co.uk/news/world/europe/teen-everest-conqueror-dies-in-alpine-ice-avalanche-1299829.html

Continue reading...
Follow

Get every new post delivered to your Inbox.

Join 477 other followers