Mountain Clients

On the 24th February, 2005, the British Mountaineering Council (BMC) lost, its attempt at gaining access to the private land on which stands Vixen Tor (the situation remains unresolved until, the BMC gets it’s way) a small granite outcrop on the edge of Dartmoor. Access to Vixen Tor, a non descript piece of moorland granite is being used by the BMC in their attempt at representing climbers and hillwalkers representation in which, it has failed over the last 50 years… The Inspector, appointed by the Secretary of State for Environment found in favour of Mrs Alford and her son against whom, the BMC along with the ramblers Association, arrayed themselves against, a mother and son, determined, to gain access to their private land. Try camping in the garden of the BMC’s offices; outside the BMC’s converted chapel in Manchester…. For some reason, and their must have been a reason, a mother and her son prevailed against the machinations; the combined efforts of the BMC and the Ramblers Association… On New Years Day, 2006, the Alford family and friends once again, had their day ruined, spoilt, when more protesters appeared, trespassing on their land.

But then ‘something happened’ as is usual with anything involving the BMC getting its ‘own way’, suddenly, something happened to galvanise the Dartmoor authority into announcing that it may purchase Vixen Tor to regain access for everyone, in fact, anyone, to the Dartmoor landmark, thus bringing forward its demise at the hands of BMB’s, British Mad Bolter’s the vast majority of whom, being members of the BMC.

The latest turn of events that may help to thwart the BMC’s latest escapade for publicity was the dropping of charges against Mrs Alford and two friends by the Crown Prosecution Service (CPS). Mrs Alford and friends were accussed of assaulting two trespassing climber’s cutting one of their ropes in the process (Plymouth Evening Herald, 30 Nov 2005)

Whilst members of the BMC are saying on the Internet – that the BMC itself is not involved it is interesting to note: ‘The BMC is seeking clarification on why – the CPS chose to drop the charges, and the BMC will be asking whether the CPS had sufficient technical understanding of the seriousness of cutting a climber’s rope while he was leading.’ The same BMC of course uttered and wrote not a single word when a climber deliberately, cut the rope on which was hanging his already injured – companion. On one hand the cutting of a rope is – very serious and on the other hand – it is not serious at all… No doubt one or several of the BMC’s new ‘expert witness’ might have to be called in to show the judge, if their an Appeal, just what happens when you cut a climber’s rope especially, when his friend is hanging on it.

One wag who has by now ‘signed the Petition’ against Mrs Alford showed just how much knowledge he had, about this area of Dartmoor an area with which he is soo – concerned: ‘I did not know that their were cows in that area’, (Rockfax Vixon Tor Petition Thread). Not only does the Vixon Tor area have substantial numbers of cattle roaming around, several are injured and killed by passing cars each year. Attracting climbers with their extra vehicles to the area (for such a minuscule piece of granite) could, add to the unsatisfactory situation regarding local livestock.

So the BMC is concerned about access to Vixen Tor are they? I recently re aquainted myself (16 January 2006) with the ‘loss of access’ created by the BMC in a joint venture with the Dartmoor Park Authority at the Dewerstone, Devil’s Rock. Many years ago long lengths of unsightly wooden balustrade’s suddenly appeared and I lost access to certain parts of the Dewerstone. Those ‘barriers’ are still there (rotting in places) along with 5 foot posts entwined with barbed wire, just strewn around near the foot of Devil’s Rock. For thirty years I climbed regularly at the Dewertsone but once my access was ruined (by un-sightly fencing) by the so-called British Mountaineering Council Access Code for the Dewerstone, I very rarely go there anymore.

And the BMC wants complete access to Vixen Tor? Not before they clear-up the mess that they created at the Dewerstone I hope.

Guiding Blight:  Was the title of a ‘letter’ published in the Daily Mail the 29 September, 2003 a school teacher, Paul Ellis who apparently ignored bad weather warnings has been sent to prison for a year (Daily Mail 26/09/03) and has lost his teaching career because a pupil deliberately dived into a swollen river – he drowned – his mother, who was also present, did not try and stop her son.

On December 28, 1998, a guide from the Association of British Mountain Guides (BMG / UIAGM)  (unlike like teacher Paul Ellis) ignored avalanche warnings and took six Venture Scouts onto Anoch Mor near Ben Nevis. In the ensuing avalanche, four young scouts died. The guide was later found to be not at fault and some years later, became the Mountain Training Officer for Scotland. At least 13 clients of BMG members have been killed in avoidable accidents since 1990 (the number of deaths in Europe takes the number far higher) , but not one guide has been jailed. Why Mr Ellis?’ In 2003 also, 11 mountain clients were killed in a single accident in France and the UIAGM guide who of course survived - was given a two year suspended jail sentence… Apparently, it really pays to have friends in – high places… January, 2011 and at least two British mountain clients have been killed in avalanches in France alone their qualified guides of course – survived.

The family of Michael Matthews, 22, who in 1999 became the youngest Briton to climb Everest has finally been awarded £70,000 damages for his death (they had waited four years due to a wall-of-silence) while using faulty oxygen equipment during the descent.

Alpine Mountaineering (IGO 8000), the expedition organiser, its director, Jonathan Tinker, and a guide Michael Smith, agreed a deal at the \High Court Birmingham. A fourth defendant, Henry barclay Todd, is being sought. The family are now contemplating a private criminal prosecution against Todd who supplied the oxygen equipment.

So wrote The Guardian on the 14 January, 2000: ‘A French court gave a mountain guide a – suspended two-years  prison sentence yesterday over the deaths in an avalanche of nine French teenagers and two adults during an excursion in 1998. Daniel Forte, 44, led the party across a steep slope near the ski resort of Les Orres despite warnings of high avalanche risks after a heavy snowfall.

After the Lyme Bay Canoeing Disaster in which four peope died,  the Canoe Center’s manager (he was not even at the scene of the accident) was given a two year jail sentence…  

Three other people were acquitted after the Les Orres disaster.’ Today (2008) the UIAGM/IFMGA website still boasts: ‘Their badge; logo, recognised throughout the world is your guarantee of their professional training and competence in all aspects of mountaineering and client care.’

According to the website http://www.mounteverest.net/news/newspages/todd1040103.htm  Mount Everest News, on the 4 April, 2003: ´´Everest’s most dangerous person, Henry Todd.’, Mountain guide and member of IGO 8000. Mount Everest News went on: ‘A spokesperson for IGO 8000 (the organisation at the cutting edge of Himalayan professionalism and safety) recently stated to ExplorersWeb: "Henry Todd left IGO 8000 voluntarily to not tarnish our name while he is involved in a possible court case with a previous (dead) client’s family. Afterwards, if he wants to come back, as long as nothing undue has come to light, he will be welcomed back." IGO 8000 is  a (self appointed) recommending association for Everest commercial expedition leaders. See – IGO 8000 on this site. Interestingly, George Band ex-BMC President and member of the original first ascent of Everest team (1953) stated in the April 2003 edition of Trail magazine: ‘Much of what goes on on Mount Everest these days has got nothing to do with – mountaineering.’

The Sunday Times, June 2, 2002: ‘The family of the youngest Briton to reach the summit of Mount Everest is suing the firm that organised the climb, claiming that he died during his descent through the companies negligence.

Michael Matthews, 22, reached the top of the 29,028ft peak in May, 1999, but disappeared while making his descent. The executors of his estate have issued High Court writs against Out There trekking (OTT). Matthews paid £25,000 to the company to get him to the summit; this sum included the services of an expedition leader, a guide and the man who supplied oxygen to the expedition. The writ claims total damages of £50,000, saying the company did not guide Matthews properly on the mountain,did not supply a safe oxygen system and failed in its duty of care to its client.

John Tinker, the expedition leader, is being sued along similar lines, as is Michael Smith, the guide, and Henry Todd, who was not a member of the expedition but supplied it with oxygen systems. These are alleged to have been defective and Matthews’s family believes this proved fatal for him.  “Our family’s interest in pursuing this matter is in the hope that something useful will come from it, ” said David Matthews, Michael’s father. “What we have found out is that nobody has any responsibility for the people who take expeditions up Everest. There are no police at 8,000 meters. It’s lawless and things are happening which should not.”

The writ says it is likely that Matthew’s oxygen equipment was not working (properly) during the ascent and even thogh he was lucid he began to suffer problems on the way down. As a violent storm broke out, Smith and Matthews became seperated. Smith waited at the Balcony where he replenished his own oxygen, but Matthews did not appear. Smith called Nick Kekus, the senor guide, but was told that no rescue attempt could be mounted. As he began to lose sensation in his toes he decided to descend to Camp 4. Matthews is thought to have perished somewhere between the South Summit and the Balcony. According to the writ, problems with oxygen affected many of the expeditions members. They had been told they would have Poisk oxygen bottles and respirators, regarded as the best in the world. In fact, they were given LSE cylinders. The two systems supplied by Henry Todd, used difference adapter fittings for the regulators and the valves. Various attempts were made to file down parts of the fittings to marry them together, not always successfully.

David Matthews believes more could have been done to save his son and says there were 35 Sherpas on the expedition, most of whom were expert high-altitude climbers. Last night none of the defendents could be reached for comment.’

       OTT who have since gone out of business, were founder members of IGO 8000/BMG who to this day purport to be at the – cutting edge of Himalayan safety (elsewhere on the Internet it states that IGO 8ooo is worthless) where its clients are concerned. Finally, there was an out-of-court settlement of £70,000 which David Matthews gave to charity. Michael Matthews is not the only IGO 8000/BMG client to have been killed in an avoidable accident whilst climbing Everest. On the 29 April, 2002, Peter Legate, from Hampshire, fell to his death whilst on an IGO 8000/BMG lead commercial expedition. Like Michael Matthews, he also was left to descend alone (not roped to a guide) when he fell and disappeared into a deep crevasse from where, his body may never be recovered. This is not the first time that member of the BMG has been sued in a private court case.

In 1997, seven years after his death, Gerry Hedley’s widow successfully sued her husbands BMG guide (who also survived his client) for her husbands avoidable death. When David matthews tried to finally sue for the use of faulty oxygen equipment, against Henry Barclay Todd, Mr Justice Rivlin QC finally spoilt the fathers efforts by throwing the case out of court. Google - Geoffrey Rivlin QC to find out more about this ‘pillar of society’ who knew so much about about faulty; the illegal use of oxygen eqipment on Mount Everest.  

‘A Triumph for Common Sense’, so wrote Steven Venables in a specialist magazine after Peter Pope, a client of the Asscoiation of British Mountain Guides (BMG), specifically, David (cubby) Cuthbertson, was allowed to place all of his own protection during a rock climb. In the unsuing fall, Peter Pope hit the ground and injured himself. We will never know the true series of events that took place on the 15 April, 1990. While the judeg stopped short of calling Peter Pope a liar, he would have been aware also, that the Defendent’s professional reputation was to some extent at stake. That Mr Pope also had a career did not apparently, matter.

But what is known, is that at the time of the accident, the BMG were advertising: ‘Adventure with Security,’ and offering: ‘Safe Guarantees,’ ‘Our members are competent in all aspect of clients care,’ (false advertising finally removed from the British Mountaineering Council sponsored - High Magazine, now High Mountain Sport in 1997 – the name has changed since). The judge, was not made aware of this material fact; this false advertising.

Peter Pope, quite possibly enticed by the above mentioned adverts, thought that as he had paid for a guide (Pope had climbed with Cuthbertson on other occasions) he was entitled to have his safety guaranteed. That would have been a perfectly reasonable assumption, had he not been allowed to placed all of his own protection on the fateful climb. That he was allowed to do so beggers belief and it is here that the guide failed his client.

Only when the guide or instructor place all or some of the protection in advance can the clients safety be more or less guaranteed. On another occasion Pope had lead a climb whilst with an amatuer climber, a friend. The friend insisted on pre-placing all of the protection before allowing Pope to lead that climb. If an amatuer could see the need for such elaborate safety – why not the professional guide who had been paid (the BMG still advertising that they ensure client safety when they blatantly do not) to ensure his clients safety.?

It should be noted here, that whilst Cuthbertson had any number of ‘expert witnesses’ prepared to assist in his defence, Peter Pope had – none. His sole assistance in his defence regarding the technicalities, was Mr Luccock who had: some climbing knowledge. There was a determination that Pope’s case should not succeed as shown by the stark responce: ‘A Triumph for Common Sense.’  It was not a triumph for common sense, it certainly was not a triumph for British justice, because other BMG clients were to die believing that their safety was guaranteed.

Even though the two pieces of equipment; protection pulled out, it still remains a mystery why Pope came into contact with ground. The second and last piece of the protection held Pope ‘momentarily’ at which time a good belayer would be frantically taking any slack rope. But the belayer in this instance did not do so. Instead of reaching out to grab Pope who momenterily landed on the ledge where the Defendant stood, the defendent should have been controlling the rope until – the leader recovered fully. Pope could still have injured himself in the fall had he been stopped from striking the ground and if he had been thus injured, I do not believe that he would have started a claim for compensation against his belayer, the BMGuide.

The judge throughout the case thought the defendent – not to be a reckless man; climber. The judge of course, did not see the photograph of the same guide, a member of the Association of British Mountain Guides – ice climbing recently,  whilst not wearing – a safety helmet. In the main climbers ice climb, whilst not wearing some kind of head protection. While the vast majority of climbers do not wear protective head gear when rock climbing – something that I will never understand, the vast majority do so when ice climbing, winter mountaineering.

The climber in the picture left, is climbing the treacherous Gouter Ridge on the ‘Normal ascent’ route on Mont Blanc. This ridge and the gully to its left (looking in) is notorious for rock fall (half of which is caused by other climbers disturbing loose rock). Each summer, climbers are killed and injured (usually head injuries) whilst climbing this populare ridge. So why is the individual pictured – not wearing a protective helmet.?

Whilst descnding this same ridge in 1989, we passed two Dutch girls in the company of a French (Chamonix) UIAGM guide, they were also descending. As we passed, wearing helmets, I heard one girl comment to her guide: “Why are we not wearing helmets.” They suddenly became aware of the numerous climbers climbing up the ridge, past us (most of whom were not wearing helmets). Some of them,  would be knocking rocks down the mountain as we descended below them – for the next hour. Common sense or what? The arrow, top left, indicates the position of the Tete Rousse hut 1,800ft below. The looseness of the terrian is quite evident in the picture.

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?…………………

Hedley v Cuthbertson – North Face of the Tour Ronde, July 1990

On June 20 1997, a Judge found against (BMG) guide Dave ‘Smiler’ Cuthbertson in a negligence case brought against him by six year old Daniel Woodroofe Hedley. The case concerned an accident on the North face of the Tour Ronde in July 1990. Cuthbertson was leading his client Gerry Hedley when he (Cuthbertson) fell. The single ice screw belay placed by Cuthbertson failed. Hedley was killed. In what turns out to be a recurring feature of these accidents, the guide survived.

Since this High Court judgement the BMC has been working to counter the “ill conceived suggestion” that any standard procedure exists for climbing alpine routes of this type and to stress that any one of a range of belaying methods may have been appropriate in the circumstances. [Like placing 2 or even 3 ice screws].

I quote from the BMC response shortly after the court decision:

“If a precedent is set basing the concept of negligence on a failure to follow procedure then this will seriously affect the way in which people, both amateur and professionals, climb. We know [really?] there is no set procedure for climbing [?] particularly alpinism, and that the variety of circumstances encountered puts the onus entirely on the judgement of the individual [the client presumably cannot make such judgements]. Judgement and experience, not the rulebook, are used to make the choices that minimise the risk [like two ice screws at least] that climbers [clients] are exposed to. In any mountaineering accident it is normally possible to trace back to a point and say if only those involved had done this or that the accident might have been avoidable: but it is wrong to think that because an accident has occurred someone has to be at fault or even that the decisions made were necessarily bad ones. The BMC is currently pulling together opinion as to the implications of the case and a full review will appear in Summit 7.”

The judge made it quite clear in his judgement that, having heard expert evidence on both sides, Cuthbertson was negligent because he used only a single ice screw in the belay that failed and caused the fall. He reached this decision notwithstanding that Counsel for Cuthbertson had argued the case pretty much along the lines outlined in the BMC reaction to the case, namely that owing to the surrounding circumstances of the climb and the conditions prevailing at the time, Cuthbertson was entitled to use his experience and judgement to come to a decision to use only a single ice screw in the belay. The judge held that the “2 ice screws or more” rule should not have been departed from in this case.

From the court transcript, Mr Justice Dyson concluded: “…I prefer the opinion expressed by Mr Fyffe [a member of the Association of British Mountain Guides appearing as an expert for Hedley] to those of Mr Harper and Mr Cuthbertson. Mr Cuthbertson made a serious mistake [and yet had been guiding during the seven years from 1990] with the tragic consequences which will live in his memory for the rest of his life”.

The BMC, of course, know better:

Mr Hedley’s widow and the young son that he never saw waited 7 years for compensation for the loss suffered as a result of the loss of a husband and father. Even then, an appeal was considered; Cuthberton was urged to consider an appeal; there were those who were prepared to support financially an appeal against the widow and her son.

At the time of the avoidable fatal accident to Gerry Hedley, the BMG were advertising ‘Safe Guarantees.’

They had been advertising: ‘Adventure with Security, we have a comprehensive insurance scheme – why chance everything on anything less?’ That false advertising by the BMG was removed from High Mountain Sports (the official magazine of the BMC) in 1997 by the Advertising Standards Authority, at the behest of the Association of Mountain Clients. The BMC, had made no attempt to remove that false advertising itself even though the BMC had offered to give ‘full publicity’ to any problems that another, independent guide, may have had – cronyism at its worst.

Not everyone felt sympathy for Mr Hedley’s widow. An appeal was actually considered after the judge found in favour of Mrs Hedley in 1997. Apparently, it mattered not that she had struggled on as a single parent for – seven years. It mattered not, that vital information had taken more than three years to arrive from Chamonix thus pushing the case out-of time. Fortunately, she was able to carry-on and sue in her sons name.