Are You To Blame !!!!

Extracts from a recent BMC Summit Magazine

By Mike Wilson

I recently had a magazine passed to me because the walker thought that the comments were very relevant to our [Caving] activities!!!

In fact the article made very interesting reading and generally verified what a number of us have suspected for years ,that groups of people partaking in any dangerous sport will not find it easy to claim against a fellow caver /climber/hill walker .This is due to what legal eagles call The Standard of Care.

According to the article “and it appears fairly obvious “ that the standard of care owed to a novice is far higher than an experienced person .Therefore it is very important to make the novice fully aware of the risks.  Apparently in USA it is the norm to keep documentation to this effect !!!

The important part about the standard of care will be, in the context of a group, the standard of care owed to others will be higher for the more experienced member. From a practical point of view this means that while you would not routinely check your partner’s buckles and knots harness etc you would be expected to do so for a novice who does not know the ropes!!!

The law is about fault, about the consequence of actions [this is called the chain of causation] so if your actions have led to actual damage to another it is possible that you are at fault and then you may be liable.

Luckily it is not as simple as that and there are all sort of criteria that have to be satisfied before you panic .For a successful claim for negligence to be made the claimant has to demonstrate firstly that a duty of care was owed .That the duty of care has been breached, and that actual damage or loss has been sustained as a result of that breach of duty of care.

One of the first defences apparently is the BMC participation statement an experienced Climber [Caver, Walker]? would find it hard to show that he/she is unaware of the normal risks associated with outdoor recreation.  Most important [and I have typed this verbatim]a willing person cannot be injured!!!

This defence that is linked with the BMC Participation Statement is the principle of “volenti non fit injuria” literally a willing man cannot be injured –this is a very old common law principle.

It was passed as a defence by the Occupiers Liability Act [1957] which does not impose any obligation on a landowner or occupier to a visitor who willingly accepts risks .This act was amended by the Countryside and Rights of Way Act [2000] to remove occupiers and owners liability for anyone injured as a consequence of the natural features of the landscape, such as falling down a cliff, POTHOLE, or waterfall.

Knowledge of this act may help us in future negotiations over access to new caves digs etc.

The www link is     www.countryside.gov.uk/access      which gives anyone further details of the CroW act.

The chain of causation means that the loss or injury has been caused by the act or omission in question .In a negligence case, the negligent act must have caused the injury. If there is some other factor, such as the action of another person [or the person injured] which caused the injury then the chain of causation between the alleged negligent act and the injury is broken and the person who committed the alleged negligent act is not responsible for the injury.

I have tried to cut the article down to readable proportions in the hope that it will not prove to be mega boring .Personally I hope that common sense will always prevail and no one will ever break the unwritten code of caving conduct,ie the risks are shared by all and No One should ever claim off a fellow caver .!!!       

The Original article came from the Summit Magazine issue 23.  

In the light of recent events, this article becomes even more important because due to the fact that the BCRA have had their insurance scheme dropped by their insurers at short notice [thereby dropping them in the proverbial] it leaves most cavers without insurance cover.

Sadly the various caving bodies have been forced to close all caves under access agreements to protect the Owners / landowners etc.  This has not affected the Derbyshire Caving Association who have their own insurance.

I would like to add that the Wig informs me that the French insurance runs to £100.00 pa at the moment lets hope that we do not arrive at the same figure.  Currently all the relative caving bodies are trying desperately to resolve the issue!

Mike Wilson

Editor: This has now been resolved.

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