A question of cave leadership ?

[Jackalpup]

A question of cave leadership ?

An interesting problem arose the other day outside a cave which gave rise to some (I think) pretty awkward questions ….

A small contingent of our club had gone through the calf hole system (grade 2) with a view to assessing it for novice trips and, having gone through and arriving back at the entrance (which you pass to return to your car) found another group about to enter.

This group was made up of some first timers and a clearly experienced caver who was busy double-rigging the entrance pitch (there was another party in the system).

He asked if he could use the existing rigging but it was not ours and we explained there was another party in the system (that we had met) and who was coming back out the same way. He indicated that he was doing the through trip and asked if the second pitch was already rigged. We explained that the other party was at the 2nd pitch when we had come out but that there was a diversion around it that did not need rigging if he would rather not take his kit in.

He then placed an onus on us by asking us to make a decision for him based on the fact he had first-timers with him who were being lowered down the first pitch and who may or may not be frightened by the “letterbox” which could prove awkward to return through if he could not find the diversion or if the 2nd pitch had been de-rigged. His question was should he or should he not take his kit in and should he or should he not continue to double-rig to account for his novices wanting to return early.

We declined to make a “decision” and suggested he must make his own judgement call based on what he knew at that time (which I think was the right decision but please do advise to the contrary if we acted improperly).

This then lead us to think about leadership in caving groups and parties when in a system in that;

Is there a legally responsible person in a caving group/party even if there is no designated leader ?

If so, what parameters define that person ?

If a 3rd party then provides information/instructions which a responsible person then follows, is the 3rd party accountable/liable if an incident occurs thereafter ?

Also, has there been any incidents where a person in a group has been held accountable where they had not assumed responsibility beforehand?

Lastly, is the same true of mines ?

Any advice would be very welcome.

Thanks

Ian

[dunc]

You made the right choice by declining to make a "decision", you offered advice about the bypass to the second 'pitch' which is good enough. Anyone taking novices in to any cave/mine etc should be more than capable of making their own judgement. IMO the judgement should have been to rig his own gear and take his own gear through the cave, just in case any problems did arise.. (considering it's a very easy cave and you walk back past the entrance to get back to your car I can't see the problem of carrying a bit of gear! )

[Rachel]

I think if I'd been one of the novices, upon overhearing that conversation I would have had a sudden lack of confidence in the 'leader'.

IMO you did exactly the right thing. The question is though, if the group had been lowered down and some were potentially frightened of the letterbox, how did he propose to extract from the cave anyone who refused to go through? I would suggest that (1) a quick trip in and out of Birkwith would have identified any potential problems with the group and (2) if there were any possibility of someone refusing to go through the letterbox, I would have gone in the Browgill end of the system as a there-and-back trip instead of committing to a pull-through.

[Bob Mehew]

1  Is there a legally responsible person in a caving group/party even if there is no designated leader ?

2  If so, what parameters define that person ?

3  If a 3rd party then provides information/instructions which a responsible person then follows, is the 3rd party accountable/liable if an incident occurs thereafter ?

4  Also, has there been any incidents where a person in a group has been held accountable where they had not assumed responsibility beforehand?

5  Lastly, is the same true of mines ?

Re 1 simple answer is no.  Every one bears some degree of responsibility to every one else or as it is know "a duty of care".  But this duty of care is proportional to the degree of prior expertise.  So some one who is say highly experienced would be considered to have a higher level of a duty of care compared to a person who is less experienced.  This is tempered by self evident knowledge like if being asked to jump down a 10 foot drop, one is clearly likely to end up being hurt, so your own common sense should have told you not to do it.  (Unless of course you are a vulnerable person who may be considered to be deficient in such judgements when the onus moves back onto the more experienced person.)

Re 2 So no is the answer.

Re 3 Yes to a limited extent.  That is why guide book writers need to be careful.  But whilst I think you were right in your responses in the situation you outline, I also think you would have been wrong if on being asked "Is the cave flooding?" you said nothing when you knew that it was.  I trust you can see the difference.

Re 4 Don't know, since don't track such legal cases.  But my guess is yes.

Re 5 Whilst the above is true for mines as well, if I recall correctly, there are some statutory duties on the "mine owner" which they cannot get out of. 

You may wish to follow up http://en.wikipedia.org/wiki/Duty_of_care_in_English_law for the heavy stuff on duty of care.  I will cite from it

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

You could also read Legal and Insurance, see http://bcra.org.uk/pub/cs/index.html?j=12 which is somewhat lighter.

Now for the legal bit - I am not a lawyer so don't rely upon this advice.  Sorry about that. 

Bob

[graham]

Bob

You could take your answer to 1 and contend that the answer is yes, everyone is, to an extent and that 2 is thus defined by prior knowledge and experience. I have an opinion of 4 which follows from this but that I think should not be discussed openly at present.

[cap 'n chris]

Do qualifications take precedence over experience in determining degree of duty of care?

i.e. qualified caver (LCLA, CIC) goes on expedition but has no prior exped experience; other people on expedition have masses of exped experience but no formal qualifications. Who has the greater duty of care in the event of circumstances arising where someone has an injury, especially bearing in mind that exped techniques may have less Plan B's than work situations?

[graham]

Do qualifications take precedence over experience in determining degree of duty of care?

i.e. qualified caver (LCLA, CIC) goes on expedition but has no prior experience; other people on expedition have masses of experience but no qualifications. Who has the greater duty of care in the event of circumstances arising where someone has an injury?

That'd be one for the courts, mate, but given the choice of taking advice from a newly qualified LCLA or from, for example, Gavin Newman or Martyn Farr, who would you go with?

[cap 'n chris]

Clearly the person with masses of experience; however, I wonder whether the finger would point at the person who has the provable certification and the professional liability/indemnity policy (cos it's a bigger pot of gold).

[graham]

Depends on which finger you mean. You can never stop anyone suing you (you can only win - or lose - if they do) but in the hypothetical situation that you discuss the defence either way would depend on the facts on the ground:

If the case was taken against the LCLA but the facts showed that the decision making took place elsewhere then the case would fail as the LCLA would not be shown to be negligent. Whether anyone else would be would depend on what actually happened.

If the case was taken against the LCLA and the facts showed that his decision making was negligent, then it might be part of the case that s/he ignored the advice of more experienced people. Again, depending on what actually happened.

I suspect you would need to stretch a case quite a long way to demonstrate that the experienced person was negligent in not challenging the advice of the LCLA simply because they held that qualification,, such advice leading to an incident. Not impossible, mind.

[Bob Mehew]

Bob

You could take your answer to 1 and contend that the answer is yes, everyone is, to an extent and that 2 is thus defined by prior knowledge and experience. I have an opinion of 4 which follows from this but that I think should not be discussed openly at present.

The point I was trying to make was that every one is involved to some extent, though clearly a prior appointed leader has a higher level of duty of care, even more so if that person has a qualification like BCA's LCMLA or CIC.  (I had presumed that the original question was not touching on a qualified leader.)

Clearly the person with masses of experience; however, I wonder whether the finger would point at the person who has the provable certification and the professional liability/indemnity policy (cos it's a bigger pot of gold).

I recall a lawyer on TV gave the wonderful piece of advice for free that only should only sue people with money - a case of the blindingly obvious - which is why he gave it for free.  Some decades ago as Graham will recall (and you were probably still a gleam in your mother's eye young Cap 'n Chris), a caving club was subject to a legal action.  One piece of advice which came out at that time, was that the claimant would, after extracting all the money the club possessed, then go for the club officials who had money and lastly the wealthy members.  This experience and advice was a powerful driver when setting up BCA's insurance many years later. 

[Andy Sparrow]

Some decades ago as Graham will recall (and you were probably still a gleam in your mother's eye young Cap 'n Chris), a caving club was subject to a legal action.  One piece of advice which came out at that time, was that the claimant would, after extracting all the money the club possessed, then go for the club officials who had money and lastly the wealthy members.  This experience and advice was a powerful driver when setting up BCA's insurance many years later. 

I am familiar with this case (I think).  In reality the club officials were not successfully targeted I believe (?)  One of the problems with litigation is that many courses of action are possible for a claimant with unlimited financial resources but in reality these things (like going after individuals only tenuously connected) are very unlikely to be won in court.  Do we know if club officers (in any type of club) and 'wealthy members' have ever actually been found personally liable in a case like this?

[Bob Mehew]

I am familiar with this case (I think).  In reality the club officials were not successfully targeted I believe (?)  One of the problems with litigation is that many courses of action are possible for a claimant with unlimited financial resources but in reality these things (like going after individuals only tenuously connected) are very unlikely to be won in court.  Do we know if club officers (in any type of club) and 'wealthy members' have ever actually been found personally liable in a case like this?

I won't speculate about your age Andy    but I suspect you would have heard about it, even if you were not around at the time.  In the event, the case was settled out of court by the insurers within the limit of liability provided by the insurance so there was no need for the claimant to pursue individuals.  But several individuals were certainly concerned about their position.

As for liability, see http://news.bbc.co.uk/1/hi/programmes/moneybox/6392969.stm . 

[ian.p]

Do qualifications take precedence over experience in determining degree of duty of care?

i.e. qualified caver (LCLA, CIC) goes on expedition but has no prior experience; other people on expedition have masses of experience but no qualifications. Who has the greater duty of care in the event of circumstances arising where someone has an injury?


That'd be one for the courts, mate, but given the choice of taking advice from a newly qualified LCLA or from, for example, Gavin Newman or Martyn Farr, who would you go with?

perhaps more to the point an LCLA level 2 would not even remotley qualify you for most expedition caving unless it only included ladder pitches under however many meters it is 20? i dont think an LCLA holder would be expected to know what theyre doing in an expedition setting especialy as i think youd have a hell of a job getting the berger or hirlatz on your list of caves. CIC perhaps a diferent matter i dont know.

[cap 'n chris]

No LCLA qualification covers you for any cave with which you aren't already locally familiar, as I'm sure you already know; the original query was whether the degree of duty of care would fall upon the shoulders of the qualified caver, as opposed to the non-qualified caver, in a scenario of an expedition where the non-qualified caver had previous experience and the qualified caver did not, especially as the professionally qualified caver holds a £5m policy as opposed to the standard BCA £2m one.

[ian.p]

my point was that in efect an LCLA would not qualify you for the sort of caving that would be encountered on expedition therfore i dont see how it could posibly give you a dutey of care over a more experianced member of an expedition the fact that it qulifys you to look after a bunch of novices in goat church does not indicate any ability when it comes to bolting down some enourmous alpine shaft. its like saying that a mountain leader would have a dutey of care for Heinrich Harrer during an atempt on the eiger....   

[graham]

Bob makes the point, rightly, about a legal case chasing the money, which is one reason why "rich club members" might be a trifle more concerned than the average qualified leader, after all few LCLA's - CIC's even - are multi-millionaires. However, as Bob states that was one of the drivers behind the first BCRA scheme way back when.

Andy then argues that no such cases seem to have been successful in the UK courts. While this is true, and there have been a number of rulings in recent years which have come down on the side of what might be called "common sense" it is important to remember that while this might make you more confident of winning a reasonable case it will still potentially cost you money in legal costs. Even if you win and have your costs awarded to you by the courts (paid by the losing side) you have still had to fund the case up until that point. Can you afford to do that?

However, the discussion of insurance is taking us a little way from the point of the original query. In my opinion the guy was a dangerous lunatic; if he was considering lowering novices down the pitch this implies they would be unable to return by the same route yet he seemed, from the account given, unsure of the means of getting them out the bottom.

Without actually taken a decision for him, it might have been appropriate to ask him if he was confident of his plans.

[cap 'n chris]

... or, indeed, whether he actually had a plan?

[kay]

However, the discussion of insurance is taking us a little way from the point of the original query. In my opinion the guy was a dangerous lunatic; if he was considering lowering novices down the pitch this implies they would be unable to return by the same route yet he seemed, from the account given, unsure of the means of getting them out the bottom.

Without actually taken a decision for him, it might have been appropriate to ask him if he was confident of his plans.

As I understand it, he was planning to lower them down the first pitch and then to take them down the second pitch (down the waterfall) and presumably out the bottom. He was assuming that they'd all be OK going through the Letterbox (it's not so small and letterbox-like in that direction) to get to the top of the waterfall. And he was confident of that route.

But if he didn't take gear for the second pitch he would be dependant on finding the bypass, and that's the bit he wasn't sure about.

[graham]

I cannot believe that a "plan" that relies on one person being able to lower the remainder of the party down pitches at either end of the trip could possibly be considered viable by anyone with half a brain cell.

[dunc]

However, the discussion of insurance is taking us a little way from the point of the original query. In my opinion the guy was a dangerous lunatic; if he was considering lowering novices down the pitch this implies they would be unable to return by the same route yet he seemed, from the account given, unsure of the means of getting them out the bottom.

Without actually taken a decision for him, it might have been appropriate to ask him if he was confident of his plans.

As I understand it, he was planning to lower them down the first pitch and then to take them down the second pitch (down the waterfall) and presumably out the bottom. He was assuming that they'd all be OK going through the Letterbox (it's not so small and letterbox-like in that direction) to get to the top of the waterfall. And he was confident of that route.

But if he didn't take gear for the second pitch he would be dependant on finding the bypass, and that's the bit he wasn't sure about.

He was also considering using someone elses gear on the first pitch, which would (possibly) have been removed before they got back there if there were any issues at the 'letterbox' or second 'pitch'.. Considering he was unsure as to whether or not people would be frightened by the 'letterbox' it seems somewhat slapdash to not rig your own gear and as such have a means of retreating should there be problems..

[kay]

Given that the cave in question has a perfectly good lower entrance, then an easy climb bypassing the waterfall (which is I presume the second pitch in question), followed by a short crawl then easy going to the daylight hole which is the bottom of the first pitch, I'm curious as to why he was lowering people in that way instead of just going in at the bottom.

Also a bit puzzled as to why he didn't seem to know the bypass since it is described in NC and is the generally used route. The usual routefinding problem in that system is the people who abseil in and then can't find the letterbox from the 'wrong' side (eg incident no 25 http://www.cro.org.uk/incidents-2003).

[ianball11]

I've taken people into Calf holes without knowing the way to the letterbox or how to find the bypass. We laddered the pitch went exploring found little things to look at, enjoyed ourselves and came out the bottom.  I didn't leave the top pitch unrigged though.

Ian B.

[graham]

Ian

Were these people who you had to lower down the pitch?

[ianball11]

Hmm, yes they were lifelined, no they were on a ladder.
 

Ian B.

[exsumper]

which is why, 20-15 years ago some of us, were of the opinion that the NCA BCA, now should not have anything to do with cave leadership schemes and professional caving as this would set a legal precedent, about liability in the future. In addition professional cavers and others should pay the full amount  for setting up their own professional qualification systems organisations and insurance not ponce off of the amateur caving organisations members subscriptions.(which would be far cheaper if they didn't have to subsidise professionals). They also have a very negative affect on landowners attitude towards their own liabilities concerning access to caves on their land. The other alternative is to lynch or shoot a few lawyers "pour encourage les autres".