Case - Asa MacIntyre v. Ministry of Defence

LTL 1/7/2011, QB Division - Charlie Woodhouse
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An army officer's claim for damages for personal injuries sustained in a rock fall during an army climbing expedition was dismissed as there had been no breach of duty of care by the leaders of the expedition who held the appropriate qualifications to lead the climb and who had undertaken proper risk assessments and continuous reviews of the situation.
The claimant army officer (M) claimed damages in negligence against the defendant employer (D) for personal injuries sustained in a rock fall during a climbing expedition. M and another officer were taking part in a formal army adventurous training exercise in the Bavarian Alps and were being led by their commanding officer and another. They had successfully climbed a steep section of a mountain and were aiming for the final ascent to the summit. In order to reach the foot of that ascent they crossed an area of rugged terrain known as the Herzl Terrace. During that climb, there was a rock fall from the area where the leaders had just reached. M took the precaution of pressing himself to the rock face but was struck on the head by a falling rock. He suffered skull fractures resulting in a severe traumatic brain injury. M submitted that (1) although the leaders held relevant qualifications, they were not formally qualified to lead novice climbers across the Herzl Terrace; they had failed to make a sufficient assessment of the risk posed by crossing it; and should have chosen a different route in the interests of safety; (2) the leaders chose to climb the Herzl Terrace side by side and to the full 50m length of their ropes which significantly increased the risk of precipitating a rock fall; (3) there had been an inadequate risk assessment of crossing Herzl Terrace where the risk of rock fall was greater than on other routes. D contended that the accident was a tragic mishap and that such a risk could never be eliminated in mountaineering which was inherently hazardous.

HELD: (1) There was no breach of duty on the part of D towards M. The leaders held the appropriate qualifications to lead the climb on the mountain, including the Herzl Terrace and had extensive practical experience. They did not need an Alpine mountaineering qualification to do so. It was not unreasonable for them to have made an attempt on the summit by their chosen route particularly as it was an established route. At all material stages there was a proper appraisal and assessment of risk and that was kept under continuous review by the leaders. Although the climb was ambitious and challenging it was not beyond M's competence (see paras 58, 120 of judgment). (2) The manner of the final climb on Herzl Terrace was appropriate despite the presence of loose rock. It was reasonable for the leaders to carry on with the climb despite the loose rock provided that they had that danger in mind and took all reasonable steps to minimise any risk arising from rock fall. Neither parallel climbing nor climbing to the full extent of the rope was inappropriate and neither caused or contributed to the accident. The leaders had not been negligent in the way in which they climbed the final pitch. It was impossible to say with certainty what triggered the rock fall (paras 95, 112, 120). (3) A fuller reconnaissance of Herzl Terrace would not have led to any different course of action on the day. There was not such an obviously more serious risk of injury as to make it necessary to choose an alternative route. It was a tragic accident which was not caused by any negligence on D's part (paras 122-123).

Claim dismissed
Counsel for the claimant: Nigel Cooksley QC leading Charles Woodhouse, instructed by Alan Bacon of BTMK LLP
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