Thursday, May 20th, 2010
‘A Triumph for Common Sense’ was the heading of an article by Stephen Venables in Mountain Notes, High Magazine, March, 1996: ‘Three times in my life I have broken bones. On each occasion the accident was caused by an anchor falling (failing). Two of these anchors were placed by me – one when I was very young, climbing my first HVS rock climb, and the other much more recently when I should have known better, the memory of both still makes me cringe with embarrassment. The third was placed by friends on Panch Chuli V and when it failed I very nearly died. It certainly never occurred to me to blame my companions for the accident, because as far as I was concerned, we were all sharing the responsibility for that difficult abseil descent, well aware that climbing is not a totally predictable, scientific discipline. On a remote Himalayan peak – and to some extent in the comparatively controlled environment of a British outcrop – we venture into an intrinsically dangerous situation where human error or just sheer bad luck can have disastrous consequences. We are responsible for ourselves and if something goes wrong there is no one else to blame.
I always assumed that most climbers concurred with these sentiments, until the ’80s. It was then that the legendary, inventive American gear manufacturer, Yvon Chouinard announced he was quitting his hardwear business because of the increase threat of litigation and it was in 1989 that I met the parents of the American woman who sued a famous boot manufacturer because she got frostbite on top of Mt McKinley. At the time I was too polite (or cowardly) to say anything, and I still regret not expressing my contempt for the kind of mentality which assumes that someone else can always be blamed – and forced to pay huge sums – for one’s own misfortunes.
The bad news is that that mentality has now crossed the Atlantic and **tried to worm its way into the British climbing community. The good news is that a recent judge in the High Court seems to have nipped it very firmly in the bud. Just before Christmas (1995), Judge Diana Cotton QC dismissed all claims of negligence against the well-known British Mountain Guide ‘Cubby’ Cuthbertson who was being sued by his student (client), Peter Pope.
For those who are not familiar with the Association of British Mountain Guides, it should be pointed out that they set themselves scrupulous standards, as high, and some would say higher, than any of their European colleagues in the Alpine countries. Few pass first time through the stringent series of tests in rock climbing, Scottish winter climbing and skiing, not to mention First Aid, navigation, cliff rescue and, most important of all, the wholesale business of caring for the safety of a client. Their sheer professionalism was brought home to me a few years ago when I was involved in a television event on Ben Nevis. Everything was set up in advance by the guides. Knots I’d never heard of were second nature to them and they moved about the hill with the kind of unerring competence you just don’t achieve through occasional weekend visits. Avalanche conditions were assessed and re-assessed, there were safety ropes wherever you looked and the belays could have held the QEII.
It so happened that one of the guides employed by the BBC that day was Cubby Cuthbertson. The impression I got, confirmed by what I have read and heard from others who know him much better, is a rather quiet, modest, extremely competent mountaineer, who at that stage was pushing his own climbing to the limit, on rock, on ice and on the competition circuit, but who could put all that ambition to one side while he was guiding, concentrating 100% on the welfare of his clients.
It was not long after that that he took Peter Pope rock climbing. Pope seems to have enjoyed his introduction to the sport, hiring Cuthbertson for a second and then a third rock climbing trip. It was on the third day of the third trip that Cuthbertson finally allowed his student (client) to have a go at leading. Pope had seconded routes up to HVS standard and, with Cuthbertson first checking out all the gear placements he (Pope) now successfully led a V Diff, followed by a severe, also checked in advanced. Then Cuthbertson let Pope have a little more rein and select his own gear to lead another V Diff. This time Pope fell, ripped out all his runners (protection) and hit the ground, suffering wrist and spinal injuries. In hospital he set about suing his guide for negligence and, at the end of last year, the case finally came to court.
There was considerable pressure on Cuthbertson to settle out of court. If he had lost the case, Sun Alliance, insurers to the Association of British Mountain Guides, could have been forced to cough up anything up to £3/4million. Rocket ting insurance premiums thereafter could have threatened the whole future of guiding (and indeed, all outdoor instruction) and Cuthbertson’s own career would have been irrevocably damaged. One can see the temptation to settle for a discreet compromise, avoiding all the humiliation, embarrassment and risk of appearing in the High Court… To be continued
** ‘American litigation tried to worm its way into British climbing and failed.’ Really! At the same time as the Pope v Cuthbertson (Cubby) court-case there was already another (since 1990) accident going to court; in the offering Hedley v Cuthbertson (Smiler) after Gerry Hedley, client of the Association of British Mountain Guides died when he was pulled from the North face of the Tour Ronde in 1990 when his guide fell whilst leading. His widow, waited seven years until 1997 before finally being compensated for her loss bringing up as she had, the baby; the son who Gerry Hedley never saw. After finally winning her court-case, an Appeal against her was actually considered. At the time of Peter Popes avoidable accident; at the time of both accidents (and there were more) the Association of British Mountain Guides was advertising that: ‘Their training and International Qualification is your – safe guarantee. Why chance everything on anything less?’Gerry Hedley would have tried his best to hold his falling guide – until his single, ice-screw belay failed – and his widow was made to wait – seven years! Gerry Hedley should have been left, tied to at least, two ice-screws and two, well placed ice axes above him, they also, should have been tied into his belay.
Postscript: Fraser C. Grant, Advertising Standards Authority wrote to me 0n the 27 August, 1997 ( seven years since Gerry Hedley died on a BMG lead alpine climb in 1990): ‘We have considered your complaint (Mr Hedley’s widow waited – seven years before she was finally compensated for her loss) and taken the matter up with the advertisers (BMG). We have, recommended that they do not make any absolute claims in their advertising regarding the safety offered by BMG registered mountain guides. If however, the advertisers are reluctant to co-operate with our wishes we may take further action.’ In December, 1995, the client Mr P. Pope lost his court-case against another BMG guide. Another – triumph for common sense.? Another triumph for an insurance company; another triumph for share-holders.
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