I was contemplating a hypothetical accident scenario and wonder if anyone can offer an opinion or advice ?.

Hypothetical Scenario;
A Caving club is the access agent to a mine shaft and purchases a winch to lower people down to the adit several hundred feet below.

A person descending on the winch falls to their death (perhaps the rope (& safety rope) both snap or perhaps they were fumbling with their attachments etc.).

Who is culpable and liable in the following cases;

1) The victim was a club member
2) The victim was a visitor with a BCA green card
3) The victim was a visitor and signed a liability waiver
4) The victim did not sign a liability waiver and had no BCA green card and was not a club member

What I am thinking about is the possibility of a manslaughter charge being brought and, if so, against whom? (the winch operator, club secretary or chairman (even if they weren?t there), the club, the landowner etc.)

Would culpability/liability be the same in the above instances if the victim was using SRT to descend the shaft instead of a winch (ropes installed by the club with the access agreement) ?

Also, who would be financially liable for costs/damages/compensation (ie. if the victim was a BCA green card holder, would the BCA insurance cover any aspect of financially liability) and, if not, where would it fall ?

Thanks in advance ?

Ian

Worth looking at:
http://www.british-caving.org.uk/membership/insurance/04C0076_Club_insurance.pdf

This gives some thoughts on your question:

who would be financially liable for costs/damages/compensation (ie. if the victim was a BCA green card holder, would the BCA insurance cover any aspect of financially liability) and, if not, where would it fall ?

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Also, other information on:
http://www.british-caving.org.uk/?page=3

The reason we have courts and lawyers is that, whilst there may be precedents, genrally each case is considered individually. So I suspect that the specifics are critical - i.e. was the rope properly inspected and tested by a competent person? (and you will have to prove competence - "I've been a caver for years" is not proof of anything). How did it break? What are the specific details of "fumbling with attachments"?

Signing a waiver and having insurance in no way guarantees immunity from prosecution. If a club goes as far as providing a winch then the club is liable for the safe operation and maintenance of the winch, rope, fixings, etc. (and this probably extends to ensuring the area in which winching operations take place is a safe as reasonably practicable - e.g. free from loose rocks). Failure to safely operate and maintain the equipment probably puts the club outside of it's insurance policy and negates, at least in some part, any waiver.

Whenever I see questions like this, my heart sinks wondering if something I'd like to take part in is about to cease being organised 

But yes, civil action is likely to be driven by the interests of the surviving relatives so signing of waivers is likely to be irrelevant. 

Khakipuce has summed the situation up admirably, I think. I'll just add one point, it's implicitly covered by his point about waivers but it is worth making it explicit: Nothing can stop someone suing you, though many things can stop them winning, however, even winning can be a drain on the individual, just ask Simon Singh.

Jackalpup said:

A person descending on the winch falls to their death (perhaps the rope (& safety rope) both snap or perhaps they were fumbling with their attachments etc.).

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They shouldn't be 'fumbling with their attachments' when they're hanging on a winch line in a shaft, and presumably getting on/off at the top they should be attached to something else with cowstails, etc.

I suppose it's always possible someone might contrive a way to disconnect from the line mid-shaft but that would presumably attract some amount of blame towards them, assuming there was enough information left to allow what they'd done to be deduced.

As for a line snapping, etc, I guess much would come down to the details (was there visible damage, when was the winch/line last tested, etc), though snapping of a visibly-OK line under static load doesn't seem very likely.

Could there be a complication if the visitor died partly as a result of their own actions, and was part of a visiting group -  is the visiting group partly responsible for ensuring that the people it takes to an event are adequately competent, and would/could assurances of competence from some authority figure in the visiting group wholly or partly reduce any responsibility of the hosting group?

Three additional points to Khakipuce's contribution. 

On a matter of criminal law, such as a manslaughter charge (or more often these days a charge under Health and Safety legislation), then those closer to the action are more likely to be liable.  The status of the individual who fell to their death with respect to the club / insurance is irrelevant as would be the waivers etc.

Under civil law, all would be potentially liable but the smart rule of thumb (which used to be given away by lawyers for free) is to sue the person with the money.  In the absence of a specific legal liability (like health and safety legislation) then being sued under the common law of duty of care would mean the defendants could potentially catch all members of the club.  Thus a club member stuck away at the other end of the country with no idea of what was going on could find themselves being sued (assuming insurance was not covering).  But proving said member was liable is more difficult than going for the guy who say was in charge of the winch.  (Something like this situation actually arose some decades ago in the aftermath of a caving accident when the then insurance limit was feared to be too small.)  Unfair Terms of Contract law rules out waivers which sign away your right to life. 

Lastly you start with specifying a mine.  In such cases, the mine owner has a special liability for a mine which has ceased working after around 1880, (see Mines and Quarries Act 1957?) for ensuring that the mine is closed.  Even if it were not a mine, the land owner (or what ever) could be included in both a civil or criminal law case, again depending upon circumstances.

I suggest having a read of Underground Britain: Legal and Insurance issues available from BCRA of you want to go further.

Bob Mehew said:

Three additional points to Khakipuce's contribution. 

On a matter of criminal law, such as a manslaughter charge (or more often these days a charge under Health and Safety legislation), then those closer to the action are more likely to be liable.  The status of the individual who fell to their death with respect to the club / insurance is irrelevant as would be the waivers etc.

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It is also perhaps worth mentioning that if you are unfortunate enough to find yourself prosecuted under H&S legislation a "reverse burden of proof" will apply i.e. the very fact that someone has been injured or killed means that the measures you took to safeguard them were inadequate and you are guilty, the burden is then on you to prove that you did in fact do all that was reasonable to prevent the incident. - Guilty until proven innocent.

For the best answer, it would be best to ask a solicitor...

srt/ winch debate ?
I  vote srt.  Owd Git.

Jackalpup said:

Hypothetical Scenario;

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ttxela said:

It is also perhaps worth mentioning that if you are unfortunate enough to find yourself prosecuted under H&S legislation a "reverse burden of proof" will apply i.e. the very fact that someone has been injured or killed means that the measures you took to safeguard them were inadequate and you are guilty, the burden is then on you to prove that you did in fact do all that was reasonable to prevent the incident. - Guilty until proven innocent.

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It's my understanding that the reverse burden of proof only applies if there is an Approved Code of Practice issued by HSE relating to the activity, and it wasn't followed.

Bottom line is that they will need to show negligence.

If a load of idiots with no skills who didn't know better were to do it then I would expect the courts to find no negligence.

If skilled people with knowledge were involved then there would automatically be a duty of care. Responsibility would fall on the person with the most skill/knowledge in the first instance, but as has already been said, if somebody was to be sued it would almost certainly be somebody with money/insurance as there is no point in suing if there is no pay off at the end (if they were to win).
No win, no fee solicitors won't get paid and are unlikely to take on a case if there is no prospect of money at the end of it.

If a (successful) manslaughter charge was brought (financial aspects aside), who would go to gaol ... ?

1) The winch man
2) The club Secretary
3) The Chairman
4) The club members present
5) Someone else



Ian

Jackalpup said:

If a (successful) manslaughter charge was brought (financial aspects aside), who would go to gaol ... ?

1) The winch man
2) The club Secretary
3) The Chairman
4) The club members present
5) Someone else



Ian

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Impossible question to answer. The only advice one can offer is that if you are worried about screwing up, don't do it.

I concur with Graham, however the person most likely to go to jail would be the person who could be shown to be negligent.

Les W said:

I concur with Graham, however the person most likely to go to jail would be the person who could be shown to be negligent.

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perversely that may not be the person most negligent.

ChrisB said:

It's my understanding that the reverse burden of proof only applies if there is an Approved Code of Practice issued by HSE relating to the activity, and it wasn't followed.

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that is how I recall it, though it a few years since I was an HSE Inspector.

Our judicial system relies on the principal of precedence, however the rules of precedence are not guaranteed.
A judge may decide that a case is sufficiently different from previous cases that the precedence does not apply.

All you can do is seek legal opinion and that is all you will get, an opinion. Sure it will be informed and might even correctly forecast the outcome of the case, but it is still just an opinion.

What is certain is that you will get as many different opinions as the number of lawyers you pay for them. 

Les W said:

What is certain is that you will get as many different opinions as the number of lawyers you pay for them. 

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Not so, as it really rather depends on the question asked.

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