Responsibilities

[caving_fox]

See BBC news https://www.bbc.co.uk/news/articles/c0k1xkllknmo

In summary and Austrain climber retreated from a mountain in storm conditions, to get help for his girlfriend, but he made this decision far too late, and she died on the mountain. He's been found guilty of gross negligent manslaughter.

Article claims there's been much discussion in the climbing community, but it's relevant to us to! Who makes the call about retreating when the water levels rise? or being in the cave in the first place? Who turns around when some of the party start feeling cold? Or stuck on a re-belay?

Although I doubt an austrian mountaineer's case would set legal precedent in the UK, it's something to be considered. If you're more* experienced than your mates you have duty of care for them.

No idea where this fits into BCA insurance.


*how much more? She wasn't inexperienced, but not close to his level.

 

[cap n chris]

My long-held understanding is that whoever is the most experienced or qualified/capable person in the group has legal responsibility*. The reason I specifically recall/remember this that it was categorically stated to me that because I held caving quals I would be the person in the dock if a trip went PeteTong[tm] even if I'd never been to that cave before and other people in the group had.

* ALL cavers have a duty of care but the person(s) with the most reasonably apportioned foresight would be culpable. So, yes, if a cave is flooding and you have an understanding of the power of water whereas other people in the group are clearly unaware of the danger then technically it's your call. Obviously you can't force people. So if you say people should turn back but they steadfastly ignore you, and you turn back then I guess that's your Duty of Care fulfilled right there.

 

[Wolfo]

Actually your summery lacks some important details.

The Austrian climber left his exhausted girlfriend unprotected (although they had basic bicycle gear) hanging in a rope on a steep slope while decending to the hut and later calling rescue.
Bummer is...he did similar stuff to his ex-girlfriend (leave her stranded alone speeding off when he thought she was to slow on a trip) which contributed to the penalty.

 

[mikem]

Rock and Water Adventures have been doing a series of reviews on UK law cases to do with risk management, & related subjects, posted on Facebook

 

[Wolfo]

Actually your summery lacks some important details.

The Austrian climber left his exhausted girlfriend unprotected (although they had basic bicycle gear) hanging in a rope on a steep slope while decending to the hut and later calling rescue.
Bummer is...he did similar stuff to his ex-girlfriend (leave her stranded alone speeding off when he thought she was to slow on a trip) which contributed to the penalty.

*bivy gear

 

[ChrisB]

We all have a duty of care, but that's civil liability not a criminal offence. There's the principle of volenti non fit injuria (if you do something voluntarily it's your own problem). So far as I can establish that principle applies in Austria. Generally, only people being paid have been prosecuted in UK.

BCA insurance covers you if somebody sues you. They can only do that if you've been negligent, so it covers negligence.

 

[AlexR]

I'm quite torn on this one, in general I think consenting adults are responsible for their own actions. No one forces you to go down a cave, into the mountains, etc.

That being said, the accused Thomas P.'s actions were, at best, completely immoral. The fact that he has done this before (to his previous partner) bears witness to a completely narcissistic individual who feels little to no responsibility for those around him. Persons present at the hearing remarked on how he was completely unemotional throughout the hearing. For most, the thought of leaving someone behind like this, especially your partner, is anathema to how we behave in the outdoors (and in general). There is phone reception on the entire mountain, and both Thomas and Kerstin had functioning phones.

Now, judging someone's actions on a challenging winter mountaineering route, in the cold, dark, and howling gale from this nice, cosy spot at my desk is pretty convenient. But the accused was a highly experienced mountaineer, had undertaken the route 4 times previously (and Großglockner by other routes around 15 times), and presumably had to deal with similar conditions before. He took his partner on a route with completely inadequate equipment, he must have known this was really pushing the limit of what she's capable of, and to top it all off they started way too late. She had bivi kit (but was presumably too hypothermic to use it), he did not. She also most likely attempted to call mountain rescue (140) but misdialled 149. It's safe to assume she was no longer in a state to look after herself. And in such a state her partner left her on a freezing cold mountain for no clear reason.
If that doesn't sum up to gross negligence, I don't know what does.

I don't see this as a "thin end of the wedge" ruling, and think jail time for the accused would have been more appropriate than the 5 month suspended sentence he got.

 

[bagpuss]

Actually your summery lacks some important details.

The Austrian climber left his exhausted girlfriend unprotected (although they had basic bicycle gear) hanging in a rope on a steep slope while decending to the hut and later calling rescue.
Bummer is...he did similar stuff to his ex-girlfriend (leave her stranded alone speeding off when he thought she was to slow on a trip) which contributed to the penalty.

She also had kit in her bag he could have used to keep her warm such as a bivy bag but he failed to get it out, so when she was found everything was still in her bag. Imagine being on a caving trip where you needed to get help, you would check through everyone's possessions to see what you had to keep someone warm before even thinking of needing to go for rescue.

 

[bagpuss]

She also had kit in her bag he could have used to keep her warm such as a bivy bag but he failed to get it out, so when she was found everything was still in her bag. Imagine being on a caving trip where you needed to get help, you would check through everyone's possessions to see what you had to keep someone warm before even thinking of needing to go for rescue.

'He said he had left Kerstin G on a ridge exposed to strong winds when he went to seek help. He told the court he could not explain why he had failed to wrap her in the emergency blanket she was carrying or place her in a bivouac bag. When her body was later recovered, the items were found in her rucksack.'
The fact he didn't give a reason for not getting these things out to help her is strange, if the weather had been so atrocious he'd had no other option that could be understandable, but that doesn't sound like the case.

 

[The Old Ruminator]

Its quite an issue in diving where you are told not to close with a person in distress. Chances are they will grab you reg and kill you. So what do you do ? Stand off and watch them die or close in and risk getting yourself in distress. When my HP hose burst decanting all my gas my partner stayed well back. Same with CBL . Its unlikely you will ever get an out of gas person up from 60m with gas switching and sharing ,dumping suiit and jacket air. I thought one of the principles of First Aid was don't put yourself in danger. Same on a boat. Who is in charge ? You cant say the skipper as he may know nothing about diving. With us you made your own judgments. I usually dived solo anyway. We lost about eight of our mixed gas group. Nobody got the blame for anything. Clearly caving and climbing are another matter so differant principles.

 

[cap n chris]

'He said he had left Kerstin G on a ridge exposed to strong winds when he went to seek help. He told the court he could not explain why he had failed to wrap her in the emergency blanket she was carrying or place her in a bivouac bag. When her body was later recovered, the items were found in her rucksack.'
The fact he didn't give a reason for not getting these things out to help her is strange, if the weather had been so atrocious he'd had no other option that could be understandable, but that doesn't sound like the case.

My guess is that he's either significantly autistic or perhaps he's a psychopath. Obviously there's a big difference between the two. Obviously.

 

[spelfish]

I'm sure there's a diagnosis - whether it's relevant is another question. The disturbing common feature of his previous abandonment of a girlfriend and this one are the lack of empathy/understanding of the situation in which he leaves his partner and, on this occasion, the failure to call for help in an area where there is supposed to be a good phone signal ( and, possibly, the failure to respond earlier to a police helicopter that flew by).

This isn't autism as I (autistic) understand it. Nor does it sound like someone who was overwhelmed by a suddenly catastrophic situation and panicked (which I think most people would forgive). As I said, there's probably a diagnosis.. if not, He's a complete arsehole.

 

[ChrisB]

My guess is that he's either significantly autistic or perhaps he's a psychopath

I'm coming round to that view. Manslaughter doesn't seem the right offence - his behaviour suggests he may not be competent to lead a climbing trip, in which case anyone who knows him well should have been aware of that and climbed with him at their own risk (no criminal offence). Alternatively, if it's plausible that he deliberately attempted to endanger both women, he should have been charged with murder.

 

[Pitlamp]

Can't help wondering; was he hypothermic himself and not thinking straight, maybe?

 

[Stuart France]

Panic might have had something to do with it as well, hence the Austrian's dash for the nearest climbing hut to find fairly immediate public assistance, perceived as the least bad option at the time. He didn't just run off; he went to a place with resources. Sitting it out together and waiting for an eventual rescue team from afar might have appeared to be more perilous at the time. Why they didn't use a phone to summon help or obtain advice is inexplicable, as is not putting on all the clothing and other protection that they were carrying once their peril had become apparent.

When I go caving there usually isn't any obvious "leader" in the group who has assumed (and to whom everyone else delegated) some kind of legal responsibility for group safety. Recreational caving isn't covered by health and safety legislation in contrast to the workplace, since nobody is being paid, and there isn't a legal duty of care between friends. There is just the moral responsibility between everyone to support one another jointly as they all willingly went into an adventure activity situation which they all knew had obvious risks - by definition. For instance, if there is a beginner in the group but it's me that broke my arm then I'd expect them to help me as much as the converse would apply too, regardless of our relative caving experience.

If the group was only two of us with one significantly injured, then we'd need to reach an understanding about the wisdom of both staying put and letting a callout expire versus sending out the able person to summon assistance on their own. Phone not an option. It's a grey area where a lot depends on what the injury is, where it happened, how long before the callout expires, whether the injured person is physically deteriorating or is OK to sit it out, the mental state of the casualty etc. People cannot be blamed for whatever the decision ultimately was, however right or wrong it may seem in retrospect, when the intention at the time was to cause no further harm and mitigate what harm had already been sustained.

 

[The Old Ruminator]

The most common reaction from a casualty is state that they are OK and can manage. ( Having been one twice ) . In this instance the young lady might well have agreed to the course of action making her rather complicit in in what happened. A good responder will ignore comments from a casualty who " does not want to make a fuss " . Bent divers were a classic in that respect.

 

[darren]

What's needed here is some sort of official investigation to gather all the facts and make a judgement on what happened.

Ideally this would be some sort of legal process with penalties assigned proportionate to the legal findings.

That way all the UK based commentators with little (I assume) knowledge of the relevant legal system could relax, confident of the outcome.

 

[caving_fox]

Panic might have had something to do with it as well, hence the Austrian's dash for the nearest climbing hut to find fairly immediate public assistance, perceived as the least bad option at the time. He didn't just run off; he went to a place with resources. Sitting it out together and waiting for an eventual rescue team from afar might have appeared to be more perilous at the time. Why they didn't use a phone to summon help or obtain advice is inexplicable, as is not putting on all the clothing and other protection that they were carrying once their peril had become apparent.

When I go caving there usually isn't any obvious "leader" in the group who has assumed (and to whom everyone else delegated) some kind of legal responsibility for group safety. Recreational caving isn't covered by health and safety legislation in contrast to the workplace, since nobody is being paid, and there isn't a legal duty of care between friends. There is just the moral responsibility between everyone to support one another jointly as they all willingly went into an adventure activity situation which they all knew had obvious risks - by definition. For instance, if there is a beginner in the group but it's me that broke my arm then I'd expect them to help me as much as the converse would apply too, regardless of our relative caving experience.

If the group was only two of us with one significantly injured, then we'd need to reach an understanding about the wisdom of both staying put and letting a callout expire versus sending out the able person to summon assistance on their own. Phone not an option. It's a grey area where a lot depends on what the injury is, where it happened, how long before the callout expires, whether the injured person is physically deteriorating or is OK to sit it out, the mental state of the casualty etc. People cannot be blamed for whatever the decision ultimately was, however right or wrong it may seem in retrospect, when the intention at the time was to cause no further harm and mitigate what harm had already been sustained.

This is why I started the thread. Because I cave in a similar manner. I have little interest in the specifics of this case, I am interested in the implications. I'm not sure your assumptions (bolded above) are true. This case seems to indicate (were Austrian mountain law somewhat similar to the UK) that you don't have to be the assigned leader, or paid, to still have a legal duty of care over a (much?) lesser experienced party member. And you may be made accountable and blamed for the consequences of your choices even if you're 'just' friends, over and above whatever guilt you will be failing if things go wrong. In the UK, grossly Negligent Manslaughter can carry a prison term.

I think, from the other comments, that if you've made decisions regarded by the court/peers/experienced as reasonable at time, then there would be no further action. (and here the judge was a specific mountaineer court official which we certainly don't have in the UK). But hindsight is very much going to be in play, rather than stated intent.

 

[mikem]

The previous girlfriend evidence seems to be the difference in this case, as even the deceased's mother doesn't agree with the outcome (Kerstin had apparently been climbing 4 or 5 years):

https://www.news.com.au/travel/travel-updates/incidents/mum-of-climber-who-was-allegedly-left-to-freeze-to-death-by-boyfriend-claims-hes-not-to-blame/news-story/d8254419e81524c1a99f1c37ad25d60d

 

[Stuart France]

I'm going with some althletic friends to the Lakes next month: a totally new area for them. Weather could be anything in March. Their level of experience: a lengthy traverse across Snowdon. I'm not being paid. We're going as friends. I've climbed all the hills in the Lakes, all the Munros, the pick of the Austrian Tyrol - but not including Grossglockner - and alpine size stuff worldwide.

Our Lakes tick list will be Helvellyn, Langdale Pikes and Coniston Old Man. Do I pull this on legal advice as I might look "experienced"?

In a caving context, should people be legally advised not to go underground in groups unless you are clearly the office junior?