https://www.bbc.co.uk/news/articles/c0k1xkllknmo
Guilty ! Interesting case - Discuss.
Personally:
I think he's guilty.
He didn't even do the bare minimum to try and save a life.
Didn't even wrap the girlfriend in an emergency blanket or bivouac before leaving her.
That and five-month suspended sentence and £8,400 fine is not much of a punishment.
I was watching this and it leaves me very uneasy. It's in Austria so doesn't immediately have any repercussions in UK law but folk might want to think about what happens when they and their partner/mates go out riding and whether the person suggesting the ride suddenly becomes accountable for any incidents.
The fact that this is the second d girlfriend he’s left on a mountain - ooft!
whether the person suggesting the ride suddenly becomes accountable for any incidents.
That's the bit of the judgement that makes me think. Unwritten rule in our group that there's no organiser/leader - we're not a club, are we? 😀 . Very loosely calling it a group at times (splitters!) but everyone knows worst case we've all got each others backs. Doing my MTB Leader and organising group rides at my local junior bike club definitely made me focus.
This guy. Arsehole. Could've done so much more (anything more really) to prevent the outcome developing in the first place, and his response to it.
Not sure it has any repercussions within the UK - we don’t have the same ‘duty of care / good Samaritan’ legislation, so informal arrangements between friends don’t carry the same legal obligations as offering a guiding service. Morally, it’s hard to judge - if he was becoming hypothermic, then his ability to make rational decisions is one of the first things to become affected. It’s not unusual to have to be quite firm with people to get them to eat/drink/put layers on quite early in the onset of hypothermia. People who don’t go into the mountains in poor weather in winter will have little to no idea of what’s involved in looking after yourself, and others, in those situations.
what would be best practice in the Uk if 1 person is injured ? Does the other leave to raise help or both die?
What is different here , and not sure if it’s in the docs linked above is that helicopters went up to them and they waved them away , he argued he had no mobile reception, however his mobile phone was phoned in his back pack with missed calls from the police trying to contact him
Take it to the extreme did he know exactly what he was doing and was fully intending on killing his partner
folk might want to think about what happens when they and their partner/mates go out riding and whether the person suggesting the ride suddenly becomes accountable for any incidents.
If there's an implied a level of experience or route knowledge, or anything about what you do that can suggest authority, and you are acting as an organiser in any way - it does seem that you're on the slope towards duty of care and liability.
Where on that slope is the difficult Q. There is a grey area in between 2 mates going riding most weekends and someone organising an event and there's a lot of bike events and outdoor activities in that grey area.
Interested to know if this has any impact on (or was decided on) any case law?
If you are the more experienced partner and something happens that is the result of negligence either deliberate or not I have always taken the view you should expect to have to answer questions on your decisions, a coroner can recommend criminal investigations.
Probably unlikely to face charges in the uk for most cases, but this one feels to have crossed the line between accidental and deliberate.
Just because you are not being paid for something does not mean you are automatically immune to prosecution for decisions made
For the climbers on here, some of us will visit Austria so it is an important development not least because it may be an indication of 'the way the wind may be blowing' here.
We've always operated on the basis that unless you're with a Guide, you're each/all responsible for yourself and each other. Not in a legal sense but in a 'doing your best to not drop someone if you're holding their rope' sense. This is all well and good between two climbing partners who understand the unwritten 'contract', but is (probably) not shared by their families etc.
It wouldn't surprise me if, in the event if an incident, families start (are?) going after the uninjured/surviving climber(s) for recompense.
"He said he had loved his girlfriend" ... funny way of showing it.
Not sure it has any repercussions within the UK - we don’t have the same ‘duty of care / good Samaritan’ legislation, so informal arrangements between friends don’t carry the same legal obligations as offering a guiding service.
Interestingly the CPS have this which might impact those who led / choose route, timings etc
When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a duty on him to act by taking reasonable steps to save the other's life will normally arise - R v Evans [2009] EWCA Crim 650, para.31.
Not sure it has any repercussions within the UK - we don’t have the same ‘duty of care / good Samaritan’ legislation, so informal arrangements between friends don’t carry the same legal obligations as offering a guiding service.
Interestingly the CPS have this which might impact those who led / choose route, timings etc
When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a duty on him to act by taking reasonable steps to save the other's life will normally arise - R v Evans [2009] EWCA Crim 650, para.31.
The issue here is someone is deciding after the event that you're in charge when you believed it was just two chums going climbing...
You level of duty of care alters depending on the level of skill you profess to have. Ie in a first aid situation someone untrained will be held to a lower standard than I would as a nurse but Drac as a senior paramedic would be held to a higher standard still. This is NOT decvided after the event - its a constant
The number of mistakes that seem to have been made here is quite incredible and I feel its right he was held accountable for his mistakes
The number of mistakes that seem to have been made here is quite incredible and I feel its right he was held accountable for his mistakes
The fact it's the second girl he abandoned (on the same mountain!) makes me think it might not be mistakes, it might be some kind of God complex...
He's getting to decide who lives or dies.
And that's a really worrying thought - basically means he's a psychopath. I hope I'm wrong and it's just a series of mistakes compounded by hypothermia.
The issue here is someone is deciding after the event that you're in charge when you believed it was just two chums going climbing...
Yes indeed but in a lot of scenarios there's someone assuming the lead, route picking, arranging etc. That CPS guidance is quite focused "created or contributed to the creation of a state of affairs "; if you make a decision, however informal or casual you have to shoulder some responsibility if it goes wide. One might be able to mitigate responsibility down but it does seem to put a burden on "leaders" etc and possibly one that isn't widely known.
Here's a very real situation i often find myself in...
I'm part of an MTB club. I'm not in the governance / committee, im just a member. The club is focused on a regular midweek ride.
We also have a "mates" chat group among a few of us for weekend rides. I tend to know the peak a bit better than most so i will sometimes plan a route around that area at the weekend and invite the mates on the group chat (we've all met via the club). All are competent riders (i'd put myself mid pack on the scale).
If one of them takes a tumble and really spanners themselves, would i be liable?
Only if negligence can be shown. You would be judged against the standard of an ordinary mountainbiker so not expected to have any special skills beyond that. You would have to do something monumentally stupid basically
If you said " I am a highly trained mountainbike leader" then you would be judged on the standard of someone with that skill
Basically no in your position unless you led a newbie over a huge droppoff or something equally daft
I'm not sure it's that clear cut. Two people riding together, Blackflag has planned the route - 'easy' day off road. No2 goes over the bars and breaks his neck. Turns out he's relatively new to MTB's but seemed competent enough.
What does his non MTBing family think of his new club and the injury sustained whilst riding with one of their 'leaders'...?
the legal system in Austria is very different from here - it doesn’t rely on case law but rather on statute to define everything. In the UK our legal system is based on “common law” so much of the rules around duty of care, and gross negligence manslaughter have been worked out by the appeal courts over the years. This case has no direct bearing in the UK, however I’m not 100% convinced that if he has done exactly the same on Ben Nevis that he wouldn’t be facing the same charge here. Whether a Scottish jury would convict would depend on the evidence as well as how he comes across. In Austria the case was decided by a Judge(s) not a jury.Interested to know if this has any impact on (or was decided on) any case law?
Some people in the climbing community seem to be concerned about the implications. I don’t know why - if you are vastly more experienced use your brain and don’t expose your partner to unreasonable risk. There seem to have been a catalogue of “mistakes” - if he’d taken any of them he’d be off the hook, even if the outcome had been the same.
I actually think a UK prosecutor might have said the only way this can happen is if it was premeditated, and I’m not sure a UK Jury would disagree based solely on the press reporting I’ve seen.
Boblo
What matters is what the law says and its ( I paraphrase from memory) " judged on the standards of the skills they profess to have"
Anyone can sue but what is to sue for here?
3 part test for negligence. Is there a duty of care? Was that duty of care breached? Is there a monetary loss?
In blackflags case he is not professing any special skills beyond a bit of navigation so his duty of care is pretty much that of a lay person. He is not saying he has mountainbike leadership skills or experience.
there is a lot of nonsense talked about negligence and liability - I know it mainly from a medical point of view
this looks like a reasonable analysis
https://emlaw.co.uk/negligence-a-comprehensive-guide/
what would be best practice in the Uk if 1 person is injured ? Does the other leave to raise help or both die?
I think you need to read beyond the headline - the prosecution isn’t because he left her at the top, it’s because he was vastly more experienced and led her into the mountains on a trip she was unprepared and ill equipped for and at various stages of that trip he didn’t do anything to try and address the spiralling problem. Even in Austria this isn’t saying that two friends can’t go climbing/riding together without one being criminally responsible for the other - it is saying if you are vastly more experienced use it wisely, if you have issues turn back, and if you get in trouble call for help.
if you are vastly more experienced use your brain and don’t expose your partner to unreasonable risk
That's the nub of the issue (not Austria - here). One person's 'unreasonable risk' is another's 'grand day out'. For most laymen, any day mountaineering would represent unreasonable risk...
Boblo - read the link I put up about negligence. Its all about the level of skill you have.
One person's 'unreasonable risk' is another's 'grand day out'. For most laymen, any day mountaineering would represent unreasonable risk...
In that case you are judged on the basis of an average mountaineer of your level of skills not as a non mountaineer
On the specific case, it's odd they were climbing a 3800m peak at night in winter. Why? Unless it was some sort of spiritual journey, there's no sensible reason to be doing that. If the girlfriend was a complete novice, even moreso.
A lot of summer alpine routes are started in the dark hours to get the return glacier bit done before too much sun plus stonefall etc. Not really the case in winter.
Not sure it has any repercussions within the UK - we don’t have the same ‘duty of care / good Samaritan’ legislation, so informal arrangements between friends don’t carry the same legal obligations as offering a guiding service.
Interestingly the CPS have this which might impact those who led / choose route, timings etc
When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a duty on him to act by taking reasonable steps to save the other's life will normally arise - R v Evans [2009] EWCA Crim 650, para.31.
The issue here is someone is deciding after the event that you're in charge when you believed it was just two chums going climbing...
I’d suggest this is actually the opposite! It’s the courts deciding after the fact that you knew you were leading (or it should have been obvious you were) — whereas the accused tries to argue “we were equal parties in the misadventure”.
That's the nub of the issue (not Austria - here). One person's 'unreasonable risk' is another's 'grand day out'. For most laymen, any day mountaineering would represent unreasonable risk...
I think the case here seems extreme though: they were 17 hours into a climb in the middle of winter, -8C temperatures, up a 4,000m summit, mostly in the dark. The inherent danger in such an expedition is clear.
That's a long way from taking Alan from accounts on a Sunday afternoon 3 hour spin around the peaks, on trails you've done plenty of times before, where he wipes out on some wet roots. I can't see a UK jury thinking someone's been negligent in that circumstance, unless as stated above, you were taking him over some especially challenging gnar. Or, er, you just left and went home without calling 999, as it appears our climbing friend did.
All the debate aside, I can't help but think he was a proper jack **** leaving his missus so he could summit.
Wait, I missed that, he left her to summit? I thought he left her to get help by descending... either way he was an idiot but to summit means he is an absolute bell end...
He scaled the summit and descended on the other side, leaving Kerstin G behind. Prosecutors say he left her at 02:00.
😬
Was talking about this the other night with "the missus", and who's to say personalities don't come in here (warning: devil's advocate only, we don't know their personalities)
Girlfriend says "You take me up that mountain or we're through, and I'll wear whatever boots I want to wear, and I don't care what time is it we're stopping for lunch..." etc.
He said it was a very stressful situation...
The court would surely need to test their personalities and previous actions, but then...
Abandoning another girlfriend on the same mountain a couple of years ago seems quite the tell.
... probably blows it out of the water. And there are simply too many mistakes.
He scaled the summit and descended on the other side, leaving Kerstin G behind. Prosecutors say he left her at 02:00.
I expect whatever lead up to the issue, this was the crux of what resulted in a conviction.
To bring this closer to home, I have planned rides with a mate in the peak and other places... he's still gaining skills and confidence and and on a couple of these rides exhaustion as a result of poor nutrition has crept up on him. He was not able to finish the planned route. Both these occasions had the 'best' descent further around the loop. Both these rides were cut short and we rode together back to the vehicles.
Sure, legally if I carried on and he spannered himself (or even just bonked hard and ended up on the floor getting hypothermia) I would not be held in any way responsible, but I would hold myself responsible regardless.
Absolute dick move leaving someone he cares about behind so he could summit - then going down a different way. What a ****
There appears so many opportunities for there have been different, safer courses of action, which may or may not have saved her life, for a guilty verdict on a totting up basis (which i appreciate isn’t an actual thing but aligns to manslaughter)
I believe they were past a point where the only route out was over the summit.
I believe they were past a point where the only route out was over the summit.
If one of them takes a tumble and really spanners themselves, would i be liable?
FWIW in Spain, yes. Similar to Austria it seems - you have a duty of care, and would be seen as the organiser of the route.
A few people have said stuff like 'legally you aren't responsible' but what do you mean by legally?
Criminal liability you might not be, but civil could be - I'm aware of vaguely similar cases where someone's spannered themselves, and being self-employed have claimed on eg: income insurance only for the insurance co to decide there's a liability on the 'leader' that they want to test rather than foot the bill themselves.
Vaguely a 'could happen' and far more likely to be the case in an organised group or a business like MTB training, but signing a disclaimer doesn't automatically get you off the hook, in one such example i heard of the person involved had accepted their part in the event and didn't want to pursue a claim against the guide, but a;lso needed to claim in insurance and in those cases are obligated to support the ins co's attempt to limit their own losses.
negligence in the UK is always civil IIRC
Signing a disclaimer does nothing - you cannot use a waiver to get out of negligence
But as above it all relates to the level of skill you profess to have - there is simply no chance of a claim against an individual acting as a pal or route leader unless they either claim to have skills they do not or do something monumentally stupid.
Very differnt if you are being paid to do something.
Absolute dick move leaving someone he cares about behind so he could summit - then going down a different way.
I think the quickest route to help was over the summit.
I am not an expert, but as far as I can tell a LOT of weight falls on whether he did what he reasonably could have been expected to do to try and save her life - foil blanket, emergency bivy, call for help, not reject heli assistance, etc. - so I think although the case has been brought, it's because they can't prove it was intentional but they can definitely show that he was negligent given his experience.
I think the quickest route to help was over the summit.
That’s almost irrelevant he avoided getting help . He asked a helicopter to leave and didn’t respond to police phone calls and suggested there was no phone reception
IMO he was trying to kill her, but lack of evidence means this is the route they had to go down
But as above it all relates to the level of skill you profess to have - there is simply no chance of a claim against an individual acting as a pal or route leader unless they either claim to have skills they do not or do something monumentally stupid.
But in a worst case scenario, loss of life, which is the case here.
The CPS guidance on manslaughter quoted above doesn't relate to level of skills, it refers to reasonableness, not reasonableness for a mtb'er or a climber but what the man on the Clapham omnibus would regard as reasonable. Reasonable identification of risk and reasonable steps to reduce the harm
If the girlfriend was a complete novice, even moreso.
The girlfriend was not a complete novice - not according to her mothers testimony.
