Mountain Clients

In this case Judge Diana Cotton QC dismissed all negligence claims against British Mountain Guide David ‘Cubby’ Cuthbertson.

“A civil case in the High Court (1994) has established an important precedent relating to climbers and responsibility, duty of care and liability”. So read the headlines after the decision in Pope v Cuthbertson.

This came at a time (so we were told) of increased pressure on manufacturers, guides, instructors, clubs and individuals against litigation following injury to third parties.

Judge Diana Cotton QC dismissed all negligence claims against Cuthberton from Edinburgh, who was being sued by his student (client) Peter Pope.

Whilst the Plaintiff (Pope) had an “amateur climber” as his expert witness, the Defendant had as his expert witness Mr Iain Peter (also a member of the BMG) who at the time was working for the UK Mountain Training Board. Mr Peter, along with the Defendant, re-constructed the accident (the fall) for the court. Since 1997, Mr Peter has been the Chief Executive of Plas-y-Brenin, the National Mountain Centre in North Wales.

“Mr Pope received wrist and spinal injuries when he fell about 20 feet attempting to lead a route at Back Bowden Doors, Northumberland, whilst being instructed by Cuthbertson,” found the Judge.

According to the court transcript, there is no mention of any slack rope being “taken-in” during Mr Pope’s fall. ‘The belay plate was merely locked-off. It was no wonder that Mr Pope managed to hit the ground. The client was allowed to place all of his own protection.

After Pope failed to obtain compensation for his injuries after being allowed to place all of his own protection by his guide and injuring himself seriously in the ensuing fall [I believe he should still not have been allowed to hit the ground from the second pitch of a muli-pitch climb], an article was printed in High Magazine entitled “A Triumph for Common Sense” authored by Steven Venables, stating his relief that the American “need” for compensation had been stopped from entering the climbing scene in Britain.

The Venables article received the following response in a letter under the heading “A Guiding Principle” from John Gillman in High magazine, May 1996.

“Dear Sir, as a climber and as a solicitor currently involved in a High Court Action against a British Guide (Cuthbertson v Hedley) arising out of a fatal mountaineering accident, I read Steven Venables article entitled ‘A Triumph for Common Sense’ in the March issue with more than a passing interest.

I certainly share Steven Venables contempt for the kind of mentality that assumes that someone can always be blamed for one’s own misfortunes. I also strongly believe that every individual should have some responsibility for his own destiny.

However, it seems to me that Steven Venables is using good arguments to make a bad point. The implication of his article is that because climbing is an inherently dangerous activity we must all accept whatever misfortune befalls us without recourse to the law. Of course the vast majority of mountaineering accidents are precisely that; namely accidents where any attempt to point a finger of blame at an individual would be quite wrong. But is Steven Venables really suggesting that if there is a genuine case of an innocent party being seriously injured or killed as a result of another climber’s clear negligence that it is wrong in principle to go to Law?

The question is particularly pertinent in the commercial guiding situation. One of the things that the guide is specifically paid for is his or her professional competence. If a guide is incompetent and negligent and that negligence causes serious personal injury or death, why on earth should the climber or the climber’s family not seek compensation? If one is injured in such a situation, seeking compensation is not a denial of responsibility for your destiny.

Would Steven Venables suggest that someone who is knocked down on a zebra crossing by a speeding driver and seriously injured is denying responsibility for their destiny by seeking compensation?

Of course, climbing is an inherently dangerous activity and that is something that has to be put into the balance in deciding, in an individual case, whether it would be right or wrong to go to Law. But to suggest as Steven Venables does, that it is wrong in principle is, I think, a flawed argument”.

What more can I say?…………………