A BRITISH climber survived for three nights near the summit of Mont Blanc last month after being trapped in a storm. His German companion was not so fortunate: she died from hypothermia.
Edward Allen, 49, from Fairford, Gloucestershire, and Maria Liu Rahel, 34, attempted an ascent of the mountain from Courmayeur on the Italian side. The conditions were good as they took on the Innominata Ridge route, a climb that demands technical skills, fitness and great respect for the mountain. Mr Allen and Ms Rahel are as likely to have respected Mont Blanc as much as anyone. Mr Allen had many years’ climbing experience, and Ms Rahel, as well as being a talented violinist with a doctorate in philosophy, was a competent mountaineer who had made numerous Alpine ascents.
But the pair got into severe difficulties when a storm buffeted the higher slopes of Mont Blanc. At 4,100m (13,450ft) there was nothing they could do but dig snow holes and try to shelter. This wasn’t enough for Ms Rahel. “There was nothing I could do to save her,” Mr Allen said. “The winds were so ferocious, they battered the life out of her.”
He spent a night beside her body before the Italian Alpine Rescue Service came to his aid.
It is a tragic story, and yet it is far from unique. Each year, on peaks in the Alps and elsewhere, climbers meet their deaths. But at what stage does the law apply to the high-risk activity of mountaineering? Mr Allen and Ms Rahel are said to have met in Chamonix where they decided to climb the Innominata Ridge. To what extent did they owe each other a duty of care — and what if they had elected to hire a guide to take them to the top?
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Rupert Grey, a media lawyer with Farrer & Co, lectures on the legal risks of outdoor pursuits, including climbing, from a position of practical as well as legal knowledge: Grey has undertaken many expeditions, and is just back from his second trip to the Arctic. He says: “If there is no client-guide relationship, as is the case here, two climbers of equal experience will owe each other the usual duty of care, much as we all do during our daily lives. But the standard of care that mountain climbers are entitled to expect of each other on a climb such as theirs is, of course, higher.”
We are in the territory of the lawyers’ classic mantra, volenti non fit injuria — that to which a man consents, he cannot then complain about — but, as Grey says, “it is critical that in these circumstances climbers are accurate about their experience”.
The two climbers knew the risks and, provided that neither misled the other as their respective abilities (and there is no suggestion that this is the case), they were entitled to climb as they did, free from fear of lawsuits. But where the guide is a professional, being paid to take a client to the top of a mountain, a different set of criteria apply. The leading case is Woodroffe-Hedley v Cuthbertson (1997). Cuthbertson, a qualified guide and experienced mountaineer, agreed to climb on the Mont Blanc massif with Gerry Hedley, who paid him £500 for his services. During their ascent, Cuthbertson feared that conditions would deteriorate owing to the heat of the sun on the ice, and so moved to an area of the slope in the shade. To save time, instead of adhering to established mountaineering practice and making a two-screw belay to secure himself as the leading climber, he made only one. A large sheet of ice subsequently broke away, dragging them down with it. The one belay screw was not enough to hold their weight, and Hedley was killed.
The court found Cuthbertson liable because, as Grey says, he had failed to maintain “the standard expected of a reasonably competent and careful Alpine guide”. He adds: “Anyone who climbs with a guide is, as a matter of law, treated as consenting to the ordinary dangers of mountain climbing. But he is also entitled to rely on guides’ expertise to minimise the danger of injury or death.”
One of the best known cases of alleged negligence concerned the death of Dave Matthews on Everest in 1999. Matthews, then the youngest Briton to reach the summit, died on the descent in circumstances that prompted his family to claim that the expedition had been negligently conducted. A storm set in and Matthews was left at the top of the Hilary Step, about 8,500m (27,887ft) high in the “death zone”, while his guide, Mike Smith, climbed down before him to clear fixed ropes that were being buried with drifting snow. For an hour Smith tried in vain to climb back towards Matthews then decided to descend alone. Matthews’s body has never been recovered, and he joined the list of more than 150 climbers who have died on Everest.
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Perhaps, while tragedy will inevitably follow in the footsteps of climbers — professional and amateur — mountaineering should remain an activity that is not fettered by any more law than now applies. As the legendary mountaineer Reinhold Messner, the first man to climb the world’s fourteen 8,000m peaks, put it: “Without danger of death, climbing is no longer climbing.”
Severe and salutary words for all those drawn to the mountains.