but what the man on the Clapham omnibus would regard as reasonable.
But if you profess to have a skill you will be held to the standards of a person having that skill ie me as a nurse would be held to a higher standard than a lay person in a first aid situation.
Reasonable identification of risk and reasonable steps to reduce the harm
yes - and what is reasonable depends on the level of skiulls and knowledge you have. so if I as a average MTBer choses a route and someone spanners themselves on that route then I am not expected to have the skills and knowledge of a experienced guide - I am expected to have average skills for a average MTBer. so a paid guide would be judged more harshly than I would be
What the outcome of an incident is is irrelevant - its the circumstances leading up to it.
negligence in the UK is always civil IIRCNo - gross negligence manslaughter is very much a criminal offence in E&W (and its equivalent in Scotland).
its interesting - legal opinions on that are actually finely balanced. You can't exclude liability on the basis of a waiver, but you can acknowledge that you are aware of the risks/took part of your own free will etc. In the Haverfordwest manslaughter case the judge used the lack of any sort of disclaimer as evidence that the organisers had not done everything possible to ensure the casualties were informed of the risks before they went.Signing a disclaimer does nothing - you cannot use a waiver to get out of negligence
there is ALWAYS a chance of a claim, that of course is not the same as the chance of a successful claim! I think "skills the claim to have" is a good starting point, but I think "skill you can be expected to have" is potentially true too? But all gross negligence manslaughter is because someone did something monumentally stupid - albeit with the prosecutor having the benefit of hindsight.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.
Actually UK law doesn't automatically make a distinction. The question is did you owe a duty of care, and it may be that once there is money involved, that is more likely but if you are for example, belaying another climber, even if you are the less experienced climber, you clearly owe your partner a duty of care. You then need to be shown to be negligent (for a civil case) or grossly negligent (for a criminal case). The answer is simple - don't be grossly negligent, then you don't need to worry about whether you did or did not have a duty of care!Very differnt if you are being paid to do something.
if I as a average MTBer choses a route and someone spanners themselves on that route then I am not expected to have the skills and knowledge of a experienced guide - I am expected to have average skills for a average MTBer. so a paid guide would be judged more harshly than I would be
We could possibly be in agreement 😉
But if I as an average mountain biker choose a route which the jury ; the man on the Clapham omnibus who doesn't bike, regards as a life threatening choice and I then don't do something the man on the Clapham omnibus regards as reasonable and someone dies, saying I'm not a guide makes no difference to the duty of care.
I think climbing high peaks probably fits the possible scenarios more than mtb'ing
KIlo - you are judged on the skills you profess to have, on what is reasonable for a person in your position. Not as an average person but as an average person having those skills.
so the test is would an average MTBer think or do that not would a non biker think or do that
Not being a guide reduces the level of skill you are expected to have so not being a qu8alified guide does make a huge difference. something that would be deemed reasonable for an average MTBer might well not be reasonable for a trained guide
IMO he was trying to kill her, but lack of evidence means this is the route they had to go down
I think so too. Said as much a few posts up ^^.
It's a power / God complex motive with enough leeway in the narrative (bearing in mind the gf's narrative will never be known) to be passed off as a tragic accident / series of mistakes.
if I as a average MTBer choses a route and someone spanners themselves on that route then I am not expected to have the skills and knowledge of a experienced guide - I am expected to have average skills for a average MTBer. so a paid guide would be judged more harshly than I would be
We could possibly be in agreement 😉
But if I as an average mountain biker choose a route which the jury ; the man on the Clapham omnibus who doesn't bike, regards as a life threatening choice and I then don't do something the man on the Clapham omnibus regards as reasonable and someone dies, saying I'm not a guide makes no difference to the duty of care.
I think climbing high peaks probably fits the possible scenarios more than mtb'ing
Juries aren't expected to know what a reasonable mountainbiker or climber would do. That's why expert witnesses get brought in.
Good analysis from poly and I was just talking about normal negligence not gross criminal negligence
This is interesting. We're talking about people's own views of their own expertise (or lack thereof) being a deciding factor in what can be reasonably expected of them leading up to and during an incident.
People's views of their own capabilities are often wildly different from the poor sods who end up climbing/riding with them. ATGANI/Dangerous Dave syndrome...
What of this when it all goes tits up? 'I'm an expert, follow me...'. Just because someone thinks they're capable, doesn't make it so. In this case, are they just as liable as they offered themselves as the more capable?
Juries aren't expected to know what a reasonable mountainbiker or climber would do. That's why expert witnesses get brought in.
Indeed, you can't have a trial without evidence of some sort.
'I'm an expert, follow me...'. Just because someone thinks they're capable, doesn't make it so. In this case, are they just as liable as they offered themselves as the more capable?
They have professed to have greater skills so would be expected to have them and judged against an expert not an average
I think the judge in this case has gotten his verdict just about right..I hope that Thomas P has a long life which he can spend trying to atone for the death of his girlfriend. A death he may not have caused, but which he certainly did not do ALL that he could to avoid.He now has an opportunity for which he should be eternally thankful.
On the specific case, it's odd they were climbing a 3800m peak at night in winter.
Got lots of mates in Bavaria and Italy who slog up a mountain at silly o'clock to see the sun rise over the mountains.
Basically..... Why not?
A mate of mine is a French mountain guide. He says he's always got one foot in jail when he's out in the hills.
Even if meets a group that are in need of help, whether they be out on a bike or hiking, he has a lawful obligation to help them.
On the specific case, it's odd they were climbing a 3800m peak at night in winter.
Got lots of mates in Bavaria and Italy who slog up a mountain at silly o'clock to see the sun rise over the mountains.
Basically..... Why not?
A mate of mine is a French mountain guide. He says he's always got one foot in jail when he's out in the hills.
Even if meets a group that are in need of help, whether they be out on a bike or hiking, he has a lawful obligation to help them.
Got lots of mates in Bavaria and Italy who slog up a mountain at silly o'clock to see the sun rise over the mountains.
24 hours later though? Setting off at 3am to see the sun rise at 6am is one thing.
He left her at 2am the following day. They'd already seen the sun rise, and then set again, and were getting towards the next sunrise.
From the BBC article:
The judge, Norbert Hofer, himself an experienced climber who works with mountain and helicopter rescue teams in Tyrol, said Thomas P was an excellent Alpinist, but that his girlfriend was light-years behind him in terms of her climbing abilities.
Hmmm. I wonder whether this has worked against Thomas P as the judge seems to be applying the standards a mountain rescue team to a normal joe? We all know how overly cautious MRTs are!
(I'm sure most people here have been out in conditions which would get us severely tutted at by MRT who seem to expect everyone to always go out with a huge rucksack full of safety gear)
(Just to be clear, I appreciate what MRTs do!)
Hmmm. I wonder whether this has worked against Thomas P as the judge seems to be applying the standards a mountain rescue team to a normal joe? We all know how overly cautious MRTs are!
I doubt that. I imagine he is more than capable of recognising the different standards that apply to MRTs or mountain professionals and a private individual.
I'm sure most people here have been out in conditions which would get us severely tutted at by MRT who seem to expect everyone to always go out with a huge rucksack full of safety gear
This is not my experience of the MRT members I know. All of them are regular hill goers and not at all judgemental. They tend to take pretty much what I'd take on the hill.
vlad - I don’t recognise that characterisation of MRTs either; not sure if Austrian MRTs have different attitudes but nothing in the press reports from the case made me think - yip I could have ended up in Thomas P’s shoes if I had been unlucky.
The girls family should hire a few guys with an interest in baseball and make sure the scuimbag finishes his days in a wheelchair.
The girls family should hire a few guys with an interest in baseball and make sure the scuimbag finishes his days in a wheelchair.
That would seem unlikely;
"The defence lawyer read out a letter from Kerstin G’s parents, which he said disputed a perception that she had been a victim.
"Our daughter takes responsibility for her own actions, we can’t blame her boyfriend,” they wrote. “She did mountain runs and summited mountains far more difficult than this one.”"
The girls family should hire a few guys with an interest in baseball and make sure the scuimbag finishes his days in a wheelchair.
I take it you haven't actually looked at the details of the case? The woman's mother actually spoke out saying she felt he had been made a scapegoat and that her daughter was not a victim.
And why do you think assaulting him would be the thing to do? We have justice systems to stop that sort of vigilante shit.
both the family and the guys would be likely to spend significant periods in custody for that sort of shit - with good reason.The girls family should hire a few guys with an interest in baseball and make sure the scuimbag finishes his days in a wheelchair.
(I'm sure most people here have been out in conditions which would get us severely tutted at by MRT who seem to expect everyone to always go out with a huge rucksack full of safety gear)
Not me. I’m fully aware of my limitations, and just how quickly conditions can change in the high country, I’m also fully aware of just how dangerous our peaks can become in minutes, compared to a 10,000’ mountain; I’ve been on top of a mountain at 10,250’, in September when it clouded up, the temperature dropped twenty-odd degrees and it started to snow! I was on my own, the others in my little group had decided to take the World Championship Downhill course, and I didn’t think I was up to it. I just went back down the fire-road, and by the time I was back in Vail Village, it was 70° and we were sitting outside eating pizza, but suddenly finding myself alone in that situation really worried me, and I’d never want to find myself responsible for another person in dangerous conditions a thousand feet above sea level in this country, let alone ten times that altitude with no phone coverage and the weather changing dramatically.
Andrea B. (also identified as Andrea Bergener) testified that Thomas Plamberger abandoned her on the same mountain—the Grossglockner—during an overnight summer ascent in 2023.
- The Circumstances: The couple had been arguing during the climb, and she had wanted to take a shortcut to end the trip.
- The Abandonment: Andrea B. testified that after the argument, Plamberger suddenly disappeared and went ahead alone.
- The Condition: She described being left alone in the middle of the night, feeling dizzy and at the end of her strength, crying and screaming, especially after her headlamp ran out of battery.
- The Aftermath: She testified that Plamberger told her not to "make a big deal out of it" and was often short-tempered, telling her "don't be such a baby" when she expressed fear.
If I went winter mountaineering and a girl I was in a relationship with at that time lost their life on a mountain there would be absolutely zero chance of me returning to the exact same mountain , with the same weather. It would / should bring back far too many haunted memories, feeling of deja vu and a sense of foreboding that something bad might happen again
Even if the current girlfriend had suggested it, personally I would have declined stating the past and giving very plausible reasons as to why I was never going up there again. And if she was any kind of human she would have respected that request
Im surprised he kept on mountaineering at all , unless of course he hated his first girlfriend and decided a nice long sleep was the best way to end that relationship which works out really well for him . Then when the current relationship fizzled out it's a repeat prescription, maybe .
If I went winter mountaineering and a girl I was in a relationship with at that time lost their life on a mountain there would be absolutely zero chance of me returning to the exact same mountain , with the same weather.
The first girlfriend didn't die. But this guy's behaviour certainly marks him out as an arsehole.
I've read the thread, sorry if it's been posted and I've missed it but: listening to a report in German there was another key point: the girlfriend had an emergency blanket and bivi/survival bag (some kind of bag as I understood) in her rucksac. The boyfriend made no attempt to maximise her chances of survival with equipment in either his bag or hers before leaving her.
Alpin is right about French guides and ski instructors knowing they're a **** up away from a prison cell. But it's not just professionals because the "non-assistance à personne en danger" law applies to everyone everywhere - if you don't help someone in danger who needs help when you could you are committing a crime. You must help within your ability and taking into account the risk to yourself. So you don't have to dive into a river unless you're confident you can save the victim without dying yourself - you call for help, throw them floatables, try to find a way of helping. You don't drive past a road accident and you don't leave people on mountains without doing everything you can to assure their survival whoever they are. You do what you can.
