High Court Judgement on Red Tarn Case

After the accident art Red Tarn, Helvellyn, Chalky White’s parents took the MRS to Court in December 2001.

This is a very important document as the detailed examination of how the MRS trains in difficult weather was put under the microscope and whilst everyone felt sorry for Chalky and his family, the MRS was exonerated.

Editor
See the article “GAI 1014 Royal Air Force Mountain Rescue Service and how it relates to this case.


This article was first published to the website in pdf format in August 2012. It is reproduced here to enable ‘easier’ reading. The original can be viewed HERE


This is a draft of the judgment to be handed down on       at       a.m. in Court No    .   It is confidential to Counsel and Solicitors, but the substance may be communicated to clients not more than one hour before the giving of judgment.  The official version of the judgment will be available from the Mechanical Recording Department of the Royal Courts of Justice once it has been approved by the judge.
The court is likely to wish to hand down its judgment in an approved final form.  Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to      , by fax to 020 7947     , by 12 noon on      , so that changes can be incorporated, if the judge accepts them, in the handed down judgment.


Case No: MA 190371

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

Queen Elizabeth II Law Courts 
Derby Square, Liverpool, L2 1XA

Date:  —–     

Before :

THE HONOURABLE MR JUSTICE NELSON

– – – – – – – – – – – – – – – – – – – – –

Between :

                                                            MICHAEL CHALK                           Claimant

 (A Patient By His Mother and By His Litigation Friend Ursula Morley)

-and-

                                                              THE MINISTRY OF DEFENCE               Defendant


Gerard Martin QC (instructed by Leigh, Day & Co) for the Claimant  

Stephen Miller QC and David Evans (instructed by The Treasury Solicitor) for the Defendant  

Hearing dates : Monday 10th December 2001 to Friday 14th December 2001


DRAFT JUDGMENT

Mr Justice Nelson: 

On the 4th March 1995 the Claimant, who was a Senior Aircraftsman with the Royal Air Force, and part of the Mountain Rescue Team (MRT) at RAF Stafford, was undertaking climbing exercises in the Lake District. He was then nearly 21 having joined the Royal Air Force in January 1993 and Stafford MRT in December 1993 as a novice climber. He had climbed regularly after that, and in February 1995 had successfully completed the two week RAF Mountain Rescue Winter Mountaineering Course in the Scottish Highlands to the course standard of grade 2 with ‘the potential to improve on his new found skills, with supervision’.

At about 1330 hours on the 4th March 1995 he was climbing the Red Tarn face which is below the summit plateau of Helvellyn with Senior Aircraftsman (SAC) Richard Storm, when they were both avalanched and swept some considerable distance down the face. The Claimant suffered a very severe closed head injury whilst SAC Storm escaped with minor bruising. The two were unroped at the time of the fall.

The Claimant is substantially disabled by his injuries and will remain so for the rest of his life. He claims damages from his employer, the Defendant, alleging that the weather conditions were such that the Red Tarn face should not have been climbed at all, and that a failure to carry out a proper risk assessment prevented those responsible for the training exercise to appreciate that fact. Once the climb had started, the Claimant alleges that SAC Storm, for whom the Defendant is vicariously liable, was negligent in choosing a route on to a snow field with a 40 – 50° slope and hence a significant risk of avalanche, and further negligent in climbing unroped. The worsening weather conditions should in any event, the Claimant alleges, have caused SAC Storm to discontinue the climb.

There was a substantial dispute between the parties as to where on the face the accident happened, and during the course of the evidence, and in particular that of Mr O’Connor, the Claimant’s expert, it became apparent that this issue might determine the outcome of the case. In his final submissions on behalf of the Claimant, Mr Gerard Martin QC accepted that if the Claimant failed to establish his case as to where the accident happened, and SAC Storm’s account of the route he took was to be preferred, the Claimant would not succeed in his case given the concessions made both in the second joint statement and in evidence by Mr O’Connor. This concession has to be subject to the Claimant’s contention that the risk of avalanche was such that the Red Tarn face should not have been climbed at all.

The evidence before me consisted of Mr Ray Griffiths, the deputy team leader of the Patterdale Mountain Rescue Team, and Mr O’Connor on behalf of the Claimant, with various members of the MRT from RAF Stafford, RAF Leeming and RAF Valley all of whom were engaged in climbing exercises on Helvellyn that day, on behalf of the Defendant. The Defendant did not call its own expert Mr Barton, whose report was then put in evidence and relied upon by the Claimant. 

The RAF convened a Board of Inquiry which commenced its hearings on the 14th March 1995. Statements were taken from the MRT members and evidence was given by them to the board. The Inquiry concluded that the cause of the accident was an avalanche, the nature of which could not be established; that the avalanche was an act of nature and all reasonable precautions had been taken to negate risks, that there were no specific human failings in the incident and hence blame could not be apportioned to any individual. (E237). The statements made and the evidence given to the Board of Inquiry were served as part of the statements of the MRT members who gave evidence before me. 

1. This trial is limited to the issue of breach of duty only.

The Issues.

2. The following issues arise:-

  1. Risk Assessment.

Did the Defendant make a proper assessment of the weather conditions and the risk of avalanche? This includes consideration of how, where and when the risk assessment should and did take place, and what the risk of avalanche was.

  1. Was the risk of avalanche so great that no part of the Red Tarn face should have been climbed i.e. was the decision to climb Red Tarn face negligent?
  2. Where did the accident happen?

This involves consideration of amongst other matters, which route was taken, where the avalanche occurred and where the Claimant was found after the accident.

  1. Was SAC Storm’s choice of where to climb on the Red Tarn face negligent

This has to be considered in the light of (a) the risk of avalanche, (b) the Claimant’s experience, (c) Storm’s experience as team leader and (d) the weather conditions.

  1. Was the decision to make the climb unroped negligent?

1. Risk Assessment.

  1. A Mountain Rescue Team, of its very nature, must be trained to climb in all different weather conditions. Its members must for example become sufficiently skilled and experienced in snow and ice conditions to enable the team to carry out its rescue tasks safely and properly in winter. The training must therefore be rigorous enough to enable the requisite skills to be learned but must also be properly planned so as to avoid risks which are unnecessary to proper and safe training.
  2. The Defendant’s Health and Safety at Work Policy for RAF MRTs, states that whilst mountains and mountain rescue work are inherently dangerous and it is impossible to eliminate entirely all of the hazards likely to be encountered, nevertheless, MRT personnel have to comply with the requirements of  the Health and Safety at Work Act 1974, the aim of the MRT being, where reasonably practicable, to provide a standard higher than the current statutory minimum required by the Health and Safety Executive. Paragraph 7 of the policy states that mountain rescue team leaders have a statutory duty to formally assess the risks to the health and safety of their party members and of anyone else who is effected by their work activity. In paragraph 8 team leaders are actively to encourage members participation and to instil a sense of duty towards the objective of observing safety rules and assisting in ‘the identification and, so far as is reasonably practicable, the elimination of all hazards with foreseeable potential to cause injury, illness, damage or loss.’ In paragraph 9 of the policy all potential hazards have to be assessed and all reasonably practical steps taken to reduce them and to alert members to them.
  3. Any assessment of the risk of avalanche will normally be carried out in two stages; firstly before the climbers go on to the mountain and secondly when they are on the mountain. There will be some occasions, described by the MRT members in evidence as very few, when weather conditions are so poor that the climbers will not go on to the mountain at all unless they have to do so in order to effect a rescue. Where for example there is particularly heavy snowfall the MRTs will not venture out for 24 hours or longer.
  4. Mostly however an assessment is to be made by reference to the weather information and other information ‘before you even set foot on the hill’ (Langmuir Mountain Craft and Leadership pages 402 – 403), and then by the conditions found on the mountain itself; ‘once on the hill you should be subconsciously adjusting your assessment in the light of conditions as you actually find them.’ (Langmuir page 404).
  5. The British Mountaineering Council publishes a ‘Winter Pack’ which identifies the causes of avalanches, and describes how the most common in Britain, namely wind slab, can be identified. Wind slab is where distinct layers of snow have accumulated, some by snowfall, some by snow being redeposited by the wind. These layers, which are not all consolidated to the same degree, create instability so that one layer may move differentially upon another.  The ‘Winter Pack’ advises on the steps to be taken before the climber goes out and, as he approaches the mountain, at the start of the day and during the day. It advises that information must be accumulated from a variety of sources; that forecasts during the period leading up to the trip should be monitored, not just on the day itself; that wind direction is the single most important factor as slab build up can occur from re-depositing old snow by the wind as well as by new snowfalls; that other people who have been out on the hill and know about the conditions should be asked about them; and that any chosen route would have to be re-assessed, looking out for changes in temperature, wind direction and strength, additional snowfall and redisposition of lying snow. The guide indicates that risk assessment and re-assessment usually means that the climber will end up on the best part of the mountain enjoying the best conditions and that it is rare for an avalanche risk assessment to result in having to cancel the trip altogether.
  6. The Claimant had been in the Stafford MRT for some 15 months by the time that the accident occurred. During this time he attended many training weekend exercises and some operational call outs in the Lake District, North Wales, the Peaks and other areas as his log book reveals (E728-751). He was part of the Stafford MRT during the whole of the winter of 1994 and had therefore to operate in the conditions then prevailing and had briefings on, amongst other things winter climbing equipment on the 4th October 1994 and on snow conditions and avalanches on the 18th October 1994. (E824)
  7. The Defendant included within its training package, an evening training session on avalanche awareness and safety devised by John Chapman when he was an MRT leader at RAF Stafford between August 1993 and August 1995. Mr Chapman’s notes for this part (A94C(6) which were prepared by him in 1993/94 were produced by him and include a three part assessment as follows:-
  1. General Assessment
    made at base taking into account pre-existing risk (weather and snow pack factors, observed or reported avalanche activity)

    weather information on morning of trip (e.g. summit weather readout, forecast, synoptic chart)

    observable local weather observable local snow conditions (including avalanche activity)
  2. Modification
    this may be necessary early in the day on the hill in view of:

    unexpected weather conditions

    localised wind effects

    preliminary snow pack examination (including snow pit and shovel test)
  3. Site – specific assessment

    application of general assessment on suspect snow

    application of risk factors to the site

    snow pit shovel test

    extrapolation (situation higher up, under cornice etc.)

assessment – safe
————– marginal
————– unsafe

(marginal equals safe but with some dubious factors)

decision – safe equals go

marginal – equals no go (may be possible to choose a safe route according to the terrain)

 unsafe – equals no go (may be possible to choose a safe route according to the terrain.)”

  1. This involves consideration of amongst other matters, which route was taken, where the avalanche occurred and where the Claimant was found after the accident. a lecture on avalanche assessment by a mountaineering expert, Mr Blyth Wright on the first evening of the 1995 Winter course which the Claimant and Mr Egerton among others attended as students and Mr Haveron, Mr Batson, Mr Duckworth, Mr Storm, Mr Chapman and Mr Linnet attended amongst others as instructors. This course had ended on the 10th February 1995, some three weeks before the trip to the Lake District which ended in the Claimant’s disastrous fall.  
  2. It is contended on behalf of the Claimant that no formal risk assessment was ever carried out by those responsible for the Lake District visit, that the information gathered was only of a general kind and that in particular no information was received as to the previous week’s weather. This assessment was therefore, the Claimant contends, inadequate as well as informal.
  3. The Stafford MRT and the Leeming MRT were both based at the Grasmere village hall for the weekend of the 3rd – 5th March 1995. Corporal Clethero, a deputy team leader, was in charge of the Stafford MRT for the weekend and Sergeant Duckworth was the team leader in charge of Leeming MRT. The teams met up in the village hall and discussed weather conditions, climbing prospects and pooled their information. I heard evidence from Mr Clethero, Mr Egerton and Mr Storm from the Stafford MRT and from Mr Duckworth and Mr Linnet from the Leeming MRT as to the information which they had gathered and considered. I also heard from Mr Hannam and Mr Ellis of the Valley MRT, who were based elsewhere, as to the conditions on the Red Tarn face. Mr Haveron, the then chief instructor responsible for the managing of the residential courses including the 1995 Winter course, and Mr Batson, the MRT chief instructor from June 1998, and Mr John Chapman gave evidence as to the training given to MRT members, the information gathered for the weekend of the 4th and 5th March 1995 and the Claimant’s experience as a climber. Mr O’Connor gave evidence as to the steps which in his opinion should have been taken to gather information and the respects in which he considered that those responsible for gathering that information had failed in discharging that duty.  
  4. The Claimant contends that the Defendant’s avalanche risk assessment system was flawed in that it was informal, incomplete and sought, in essence, information only of a general kind. The full picture of information as to wind speed, direction, temperature and snow conditions should have been obtained from the relevant weather forecasts of the previous days before the weekend as well as for the days of the weekend itself. Without such information an incomplete picture would be obtained. By failing to obtain such information the Defendant was acting contrary to standard advice in mountaineering manuals and in breach of Mr Chapman’s own ‘assessment of avalanche risk’.  Both the Claimant’s expert, Mr O’Connor, and the Defendant’s expert, Mr Barton, were agreed that the weather forecasts for the days preceding the weekend had to be obtained as part of the process of assessment ‘before you even set foot on the hill’.  
  5. Members of the MRTs are all volunteers. They are enthusiastic climbers and are in training at the weekends for much of the year. They are all conscious of their own safety and as both Mr Clethero and Mr Hannam told me, always very aware of the weather. Mr Clethero said that they were very careful for their own safety as well as others and very protective of themselves and their colleagues. They were trained, for example on the Winter Climbing Course, to be aware of the risk of avalanche when there was snow and of the need to make a continuing re-assessment of that risk. The constant theme running through the evidence of all those who were called from the MRTs was that there were only a few days when the information gathered before setting out indicated that climbing was not possible, and apart from those few days, the best time to make a proper and detailed assessment of the true risk of avalanche was when approaching or on the mountain itself.  
  6. When they knew that they were to embark upon a winter climbing weekend the members of the MRT would listen to the weather forecasts on the radio, watch them on the television and read them in the newspapers. They sought information in the area by word of mouth and received a detailed weather forecast from the Edinburgh Rescue Co-ordination Centre providing information local to the area where they were about to climb. The Edinburgh RCC forecast was pinned to the notice board so that it could be read by all members but was in fact read out and considered during the morning briefing before the climbers set out.  
  7. Mr Egerton told me that there was also a Friday forecast from ‘Weatherline’ which they always had and formed part of the weekend folder. It was a faxed copy. In cross-examination he said that the Friday briefing was as to the weather to come and in his statement he referred to ‘a short meteorological brief detailing what the previous few days weather had been like in the Lake District’. Again in cross-examination he said that the information as to the weather for the previous days had been taken from the news and television.  
  8. Mr Clethero said in evidence that they received a meteorological report from a civilian line such as ‘Climbline’ which was faxed through giving a 5 – 7 day account of the forecast for the week ahead. He had that fax as part of the information folder for the weekend. He agreed that this was something he hadn’t mentioned to the Board of Inquiry but it was routine to obtain such a report.  
  9. Mr Duckworth also referred in evidence to a Friday faxed forecast from either ‘Climbline’ or the Newcastle weather centre. Mr Duckworth, like Mr Clethero, said that the Friday faxed forecast dealt with the 5 days to come but he added that he also had the previous Friday’s faxed forecast which dealt with the previous 5 days. It was put to him that he was mistaken in that evidence, which was not in his statement and indeed it was suggested that he was embellishing his evidence. He said that he would have received the forecast for the previous Friday before he went to Coniston. He accepted that he had made no reference of this to either the Board of Inquiry or in his statement but said that he was adding something, as listening to the last three days evidence had made him think intensely of the routine.  
  10. Mr Duckworth and Mr Linnet had ascended the mountain on Friday the 3rd March and Mr Duckworth was able to observe for himself what conditions were and discuss those with the Stafford MRT. Mr Linnet had in fact stayed overnight on the summit and could therefore give a more extensive report on the conditions there than Mr Duckworth but both of them had been on the South East face rather than the face of Red Tarn.  
  11. There was also a conversation on the phone between Mr Duckworth and a friend of his in the Langdale and Ambleside MRT in the week before the 3rd/4th March in which Mr Duckworth had been told that there had been a considerable snowfall in the Cumbrian mountains and winter climbing conditions were looking favourable for the weekend ahead.  
  12. Mr Duckworth’s parents live in Windermere and on Friday the 3rd March he called his parents who confirmed to him that the mountains were still covered in snow and the weather forecast for the day was good with a fine and sunny outlook.  
  13. I have considered the evidence as to the information which the Defendant sought before setting out to climb that day and am satisfied that it was as follows:-  

(i) as to the weather during the days prior to the weekend of the 3rd/5th March 1995 all the members of the team, including the team leaders listened to the radio, watched the television and read the newspapers in order to ascertain the forecasts and the nature of the weather which had occurred. I am satisfied that it was expected of the members of the team that they would do this and that they did so. I also accept that faxed 3 or 5 day forecasts for the weekend and the week ahead were considered by Mr Clethero and Mr Duckworth as team leaders and, as Mr Egerton said, such faxed forecasts always formed part of the folder of information that they had available. Even though the reference to this information was made in evidence and not earlier and the faxed documents were not disclosed, I am satisfied, having heard Mr Clethero, Mr Duckworth and Mr Egerton that it was routine for such documents to be available within the folder. I also accept Mr Duckworth’s evidence that he personally had available the forecast for the previous week as he had received that when he been to Coniston the previous weekend. In addition, the conversation with the Langdale and Ambleside MRT which Mr Duckworth had had, informed him about the weather in the previous week. None of the MRT members had copies of the Met Office reports for the previous week which are summarised at para. 97 of Mr O’Connor’s report.  

(ii) As to the weather for the day in question, the members of the MRT had the television and the radio available together with the Friday faxed forecast, the Edinburgh RCC detailed weather forecast and the information provided by Mr Duckworth and Mr Linnet as to conditions on the mountain, albeit the South East and not the Red Tarn face. Some extra local information as to what conditions were likely to be may have been provided by the discussions with the Langdale and Ambleside MRT in the week and Mr Duckworth’s parents on Friday.  

  1. More generally I accept the evidence of the Defendant that all members were constantly aware of the weather and its importance, were always aware of the potential risk of avalanche and sought to make an assessment of that risk. The existence of the risk was re-inforced, for example by the lecture at the Winter Climbing Course but it was something in any event that the members of the teams were constantly aware of. Mr Batson told me that the threat of avalanche was never ignored and that pre-existing weather details were an important part, but only part of that assessment. The information gathered from various different sources before setting out enables an assessment to be made, but unless the conditions are such that it is inadvisable to climb at all or it is inadvisable to climb in certain areas, the final part of the assessment has to be made when the climber approaches and when he is on the mountain itself. Mr Chapman told me that the assessment of pre-existing risk as set out in Annex ‘A’ to his statement will enable a general assessment to be made before the climber gets on to the hill. The assessment that has been made from general forecasts may have to be modified when the climber goes on to the mountain.  
  2. Mr Duckworth expressed the view that his assessment when on the mountain is better than estimated forecasts which could be wrong and should not be read as the letter of the law. A particular face may have different facing aspects so that different problems may be presented on a face which have to be considered when the climber is present on the mountain.  
  3. Mr Clethero said that the information he had had beforehand did give him knowledge of the wind, temperature changes and extent of snowfall. He did not know the wind speeds but those increase as you climb higher.  
  4. The risk of avalanche. Mr Clethero had assessed the risk of avalanche as medium to low. He had been taught that if there was evidence of an avalanche risk it was safer to climb a ridge or buttress rather than a gulley or slope. Mr Hannam thought that this was a somewhat over cautious assessment, at least as far as he and Mr Ellis were concerned, and they chose to climb in gulley number 2. Mr Hannam was constantly assessing the situation on the walk in, looking at the state of the snow and for avalanche debris across the slopes.  There was some 12 – 18” of snow at the foot of the Red Tarn face but insufficient to make it practicable to dig an avalanche profile.  
  5. Mr O’Connor considered that the Defendant had not properly taken into account the weather conditions of the preceding week. Had they done so they would have appreciated that the winds had been predominantly from the south west and would have deposited snow primarily on the north east facing slopes such as the Red Tarn face which would therefore become the most dangerous. With sufficient snow and cornice formation and with the snow on the north and north eastern aspect unlikely to have consolidated, instability should have been apparent highlighting the need for caution. He concluded in paragraph 144 of his report that the Defendant failed to make a full risk assessment of the conditions in which they were to climb and that the red light warnings which existed of instability were such that the Red Tarn face should not have been selected as a suitable climbing location. (Paragraph 145).  
  6. Mr Barton also concluded that an experienced practitioner could have identified a significant possibility of a slab avalanche hazard on the slopes from the available information, in particular the Met reports for the preceding days, but did not consider that many experienced practitioners would have kept entirely away from all slopes of a north easterly aspect, but rather, would have proceeded in a cautious and careful manner and chosen a defensive route. (Paragraph 52).  
  7. In their first joint statement of the 22nd November 2001 both Mr O’Connor and Mr Barton agreed that there appeared to be no formal risk assessment of avalanche hazard and that in the face of adverse snow conditions with a significant avalanche hazard they would have expected an experienced person to adopt a cautious approach in an attempt to avoid steep accumulation zones.  
  8. Mr Haveron and Mr Batson both accepted that the assessment of the risk of avalanche which was carried out was informal and there were no procedures for written formal assessment to be carried out. Mr Batson said that knowing the individuals, they would have been aware of the pre-existing weather conditions. Mr Chapman in re-examination said that he believed that the members of the MRT did find out in this particular case what the weather was before they set out and added that the information from people on the ground at the time was highly valuable, probably the best information.  

Duty

  1. There is no doubt that the Defendant owed the Claimant the duty at Common Law to provide a safe system at work. It is equally clear that those responsible for the training exercise, for whom the Defendant would be vicariously liable if they were negligent, had a duty to assess the weather conditions, including the risk of avalanche, so that properly considered and reasonable decisions were taken as to whether, and where to climb.  
  1. The Management of Health and Safety at Work Regulations 1992 sets out a requirement for a risk assessment under regulation 3. The regulations implement the Framework Directive 89/391 but do not in themselves impose civil liability for breach of any particular regulation.  
  1. The Claimant’s claim is framed solely in negligence and the only relevance of the statutory code is that it is referred to in the Defendant’s health and safety policy which requires a formal risk assessment to be carried out.  

Breach

  1. There are two questions to be considered, firstly whether the system was itself inadequate and secondly whether its application on this particular occasion was defective and hence negligent. The second question involves consideration of whether it was safe or proper to climb any part of the Red Tarn face (Issue 2) and if it was, whether SAC Storm properly assessed the risk of avalanche in his choice of route on Red Tarn face. (Issue 4).  
  1. Mr Gerard Martin QC on behalf of the Claimant submits that the Stafford team did not have sufficient information upon which to make an adequate risk assessment. The lack of information relating to the previous weeks weather forecasts from the Met Office led to them being unaware of the direction of the wind, its speed and temperature. Whilst a forecast was not the same as the actuality it would nevertheless would put the team on guard as to what the conditions might be. Without it the decision making process was hampered. Furthermore none of the team had any significant experience of climbing the Red Tarn face in winter conditions and there was no adequate discussion of the contents of the guidebook or the potential risks which might be faced.  
  1. It is clear on the evidence that no formal written assessment of the risk of climbing was made before the MRT set off on the morning of the 4th March to climb the different areas of Helvellyn that they had chosen. I do not however find that it was necessary for a written risk assessment to be made. What was required of them was that there should be express consideration of the avalanche risk both before they set out and, if it was safe to climb, as they approached and started to climb. Indeed there was a duty to make constant reassessment of the risks throughout the whole of the climb.  
  1. For the purpose of carrying out a sufficient and proper risk assessment the Defendant, through the team leaders clearly had to have the necessary and relevant information upon which they could make such an assessment.  
  1. I am satisfied that the Defendant through its team leaders had the necessary information for making a sufficient and proper assessment before they set off. Consideration of the forecasts on the television, radio and in the newspapers in the previous week was valuable information for experienced climbers. Mr Duckworth had access to the previous Friday forecast from his trip to Coniston the previous weekend and I am satisfied that the teams pooled their information and discussed conditions. The Edinburgh RCC forecast, which did not forecast avalanches in the Lake District for that day, was not the only matter upon which they relied. I accept Mr Chapman’s evidence that discussions with local people with direct experience of conditions is extremely important and valuable particularly where such conversation is with, as it was here with Mr Duckworth, a member of a local (here Langdale and Ambleside) MRT. There was therefore direct information from knowledgeable locals as to the previous week’s weather and the then current conditions. I also accept Mr Clethero’s evidence that they did in fact have from the combined pooled sources of information knowledge of all relevant matters save perhaps for wind speed which could be gauged on approaching and actually ascending the mountain. I find that the members of the teams were aware of the risk of avalanche which they had expressly considered in accordance with their training. Mr Clethero told me, and I accept his evidence that he had made an assessment of the avalanche risk as medium to low. I am satisfied that Mr Clethero was an experienced and competent climber well able to act as acting team leader and that he had in fact qualified as a deputy team leader in 1986 in spite of the fact that the documents produced by the Defendant suggested that he had become a deputy team leader in 1996.  
  1. I conclude that the Defendant’s system of risk assessment involved the gathering and pooling of information from various different sources and that the risk of avalanche was expressly considered and assessed. The training of mountain rescue teams has to be carried out with proper systems of work and supervision in force but that does not require an inflexible formulaic observance of codes or rules. ‘Formal’ in this context means that the risk of avalanche is expressly not impliedly considered. What is required is that adequate information is gathered on each and every occasion before the climbers set out so that express and proper consideration of the risk of avalanche can be made and that such an assessment is expressly made. Risk of avalanche must then be continually re-assessed as the climbers approach and start to ascend, and descend, the mountain. I am satisfied that the system of work and supervision which the Defendant operated in this case was adequate and proper. In so far as Mr O’Connor suggests to the contrary I prefer the evidence of the Defendant’s witnesses.  

2. Was the risk of avalanche so great that no part of the Red Tarn face should have been climbed i.e. was the decision to climb Red Tarn face negligent?   

  1. All the Defendant’s witnesses considered that it was perfectly proper for the team to go up on to the mountain, aware of the risk of avalanche, and assess the conditions as they found them there. In his report Mr O’Connor said that the Red Tarn face should not have been selected as a suitable climbing location at all whereas Mr Barton considered that the Red Tarn face could be climbed but in a cautious and careful manner with a defensive choice of route.  
  1. The effect therefore of the Defendant’s witnesses, Mr Barton’s report and Mr O’Connor’s evidence is that it cannot be said that the Defendant failed to assess the risk of avalanche properly in deciding that the Red Tarn face was capable of being climbed. Furthermore, as a matter of causation it follows from this evidence that whatever information had been available to the Stafford MRT the decision to go on to the Red Tarn face would have been the same. If therefore, which I have in any event rejected, there was a negligent failure to obtain written weather forecasts from the Met Office for the previous week, such a failure would not be causative of any injury in so far as the decision to go on to the Red Tarn face was concerned. The Defendant further points out that Mr O’Connor accepted that the decision of Mr Hannam and Mr Ellis to climb up number 2 gulley on Red Tarn face was not one which he could properly criticise. It should also be noted that Mr Hannam’s evidence is that there were other climbers on the Red Tarn face that morning, other than members of MRT teams.  

3.  Where did the accident happen?  

  1. The Claimant’s case as to where the accident happened was based upon Mr O’Connor’s interpretation of the statements and documents before him when he compiled his report. He recognised that there were inconsistencies regarding the precise location of the accident between the material in the Board of Inquiry report, the Patterdale Mountain Rescue Team report and Mr Storm’s statement. On considering all the written material Mr O’Connor concluded in paragraph 35 of his report that ‘it seems reasonable to assume that Storm and Chalk climbed a buttress parallel to number 2 gulley’ and were on the snow slope leading to the summit when the accident happened. Mr Barton came to a similar conclusion on the basis of the information before him and in the joint statement the experts agreed that:-  

“the accident happened after the climbers had finished climbing a buttress at the side of number 2 Gulley and were beginning to climb the final slope leading to the summit plateau of Helvellyn.”  

  1. Thus the case was opened to me upon the basis that the accident occurred shortly after Mr Storm and the Claimant had completed climbing buttress number 3, to the left of gulley number 2 and had embarked upon the snow slope above buttress 3 leading to the summit. There are three substantial buttresses, Viking buttress on the right, number 2 buttress in the centre and number 3 buttress to the left. There are smaller buttresses lower down the face.   
  2. Mr Storm gave evidence as to the route which he and the Claimant followed, and described the point where they were avalanched and fell and the different points where each of them ended up after the fall. Their route, the point where they were avalanched and where they landed up were marked on one of the photographs. Mr Storm gave detailed evidence and was subjected to substantial cross-examination. He maintained his account that the accident had not happened on a snow slope above buttress 3 after they had completed that, but much lower down after they had completed climbing a small buttress and just started to move off on to the snow at the top of that buttress, with the intention of going around a small boulder where a runnel had formed and finding a route down.  
  3. It was submitted to me by Mr Gerard Martin QC that Mr Storm was mistaken in his evidence. It was not suggested that he was lying but that he had succeeded in persuading himself that an explanation which exculpated him was true when it was not. In particular it was submitted that he was unimpressive in the witness box, as for example, he was quite unable to explain the time discrepancies inherent in his account. This and a number of other important features inconsistent with his evidence should, it was submitted, lead me to the conclusion that his account was wrong. Reliance was also placed by the Claimant on the evidence of Mr Griffiths, the deputy team leader of the Patterdale Mountain Rescue Team, who was in charge of the team called out to deal with Mr Chalk’s accident. He said that he had noted the position where Mr Chalk had been lying and, on return to base, had ascertained the grid reference point where this was. He marked the position in which he said he had found Mr Chalk on the photograph immediately below Viking buttress in the area of gulley number 1. It was the Claimant’s case in opening that the grid reference marked by Mr Griffiths as the point where he had found Mr Chalk was consistent with the accident happening after Mr Storm and the Claimant had climbed buttress number 3. I will consider this evidence and the evidence as to the avalanche which occurred before the inconsistencies upon which Mr Martin relies.  

The evidence of Mr Griffiths.

  1. This was in direct conflict with that of Mr Storm and indeed all the members of the MRT teams who came to his aid. They all said that he was lying at a point not only considerably lower down the face but also much further to the left at a point below and slightly to the left of gulley number 2, shown and marked on the photograph in the region of the sunlit triangle.  
  2. The Claimant submits that Mr Griffiths’ evidence should be preferred to that of all the MRT rescuers because he was far more knowledgeable of the Red Tarn face and area as a member of the Patterdale Mountain Rescue Team than the MRT rescuers none of whom knew the Red Tarn face well. Mr Griffiths would be likely to recognise his own patch and said in evidence that he had been able to identify the point in question by recognising boulders at a place where climbers meet to gear up, and by a snow covered stream. By the time Mr Griffiths arrived there the cloud cover was over the plateau and part of the face, and snow was falling. Visibility was very bad and he noted that the Viking buttress was covered in cloud.  
  3. It was accepted by the Claimant that Mr Griffiths was in error when he had said that Mr Storm walked off the mountain rather than being taken from it in the helicopter but that was an incidental detail in his recollection. Mr Stephen Miller QC on behalf of the Defendant pointed to the fact that Mr Griffiths was also unclear as to the role of the winchman and how the stretcher was used. When he was cross-examined Mr Griffiths accepted that it was difficult to see how a climber could be avalanched from buttress number 3 to the point which he had marked as the place where he had found Mr Chalk. He had calculated the grid reference on his return to base. When he was re-examined Mr Griffiths said that the Claimant could have ended up where he said that he found him from buttress number 3, as he could have slid vertically down the snow, fallen back into gulley number 2 and then back into the base of the Viking buttress. There was probably a distance of 100 metres between the point marked by him and where Mr Storm says that the Claimant ended up. Mr Griffiths said that it was possible that he was out by more than 100 metres but that his main memory was of seeing the Viking buttress covered in cloud. He thought that if the avalanche was big enough it could have moved across the lower part of number 2 buttress.  
  4. Mr O’Connor said in evidence that a fall from the top of number 3 buttress would be a very substantial fall over 100 metres, the first part over rocks and the rest over varied ground. He agreed that the avalanche did not affect Mr Hannam or Mr Ellis who were in number 2 gulley.  
  5. The RAF MRT rescuers who went to Mr Chalk’s assistance, Mr Storm, Mr Hannam, Mr Ellis, Mr Egerton and Mr Clethero, were clear in their evidence as to where they found him, namely in the area of the sunlit triangle on the photograph. There was no substantial challenge to their evidence on this matter. Nevertheless, in his closing submissions Mr Gerard Martin QC asked me to prefer Mr Griffiths evidence upon this matter as an independent witness, recognising at page 8 of his written submissions that the evidence of the RAF MRT rescuers as to where Storm and Chalk were found was relevant to Storm’s evidence of the route which they took, and also as I understand it, to the general credibility of the MRT witnesses. For my part I do not regard Mr Griffiths evidence as decisive on the issues in the case, but it is relevant and in view of Mr Martin’s reliance upon it I have considered it with care.  
  6. The Defendant submits to me that Mr Griffiths evidence is inherently improbable as the evidence established that there was not as much snow on the mountain as is shown in the photographs, and in that event, anyone falling over buttress number 3 then over buttress number 2 would be travelling over 150 feet of rock and buttresses and boulders to the area below. For Mr Chalk to have sustained a head injury with no other bodily injury and for Mr Storm to have sustained no injury of any significance at all in such a fall is more consistent with them going down a predominantly snow slope albeit with some boulders than over such a rough rocky area. Mr Gerard Martin QC says that there is no evidence in support of this and it is mere speculation. Mr Griffiths himself was plainly unsure when giving evidence as to how Mr Chalk could have ended up where he said, had he fallen from above buttress 3. He did consider it possible but plainly  was diffident about the matter when his evidence was taken as a whole. He conceded that he could have been out by a 100 metres – the distance he estimated between the two points where he and the MRT rescuers had marked as the spot where Mr Chalk had ended up – and said that he found the matter difficult.  
  7. Furthermore for his evidence to be correct upon this matter, the avalanche would have had to have carried Mr Chalk and Mr Storm from buttress number 3 over buttress number 2 so as to end up under the Viking buttress. The evidence of Mr Hannam however who, apart from Mr Storm, gave the only evidence as to an avalanche, was that it was to his left and had come from above him. There was no avalanche in gulley number 2 where he and Mr Ellis were, nor did he describe any avalanche to his right.  
  8. There are doubts as to the accuracy of Mr Griffiths recollection because of his own diffidence, the evidence of Mr Hannam as to the position of the avalanche he saw, the absence of any evidence suggesting a very substantial avalanche going across buttress number 2 from above buttress number 3 into the area below Viking buttress, and because of the inherent improbability of Mr Storm and Mr Chalk falling over such a substantial distance of rock and boulder only partially covered in snow without sustaining bodily injury. I found on the other hand the evidence of the MRT rescuers clear and convincing as to where they found Mr Chalk. Having heard and seen each of these witnesses give evidence on this issue I am satisfied that they were neither mistaken nor dishonest in giving this evidence. I find as a fact that Mr Chalk ended up in the position marked by the MRT rescuers on the photograph as in the area of the sunlit triangle.  

The avalanche.

  1. Mr Storm said that he lost his footing and fell or was swept backwards. He referred to having been avalanched at the Board of Inquiry but was uncertain before me as to whether this was so, or whether he had simply lost his footing and fell. I am satisfied however on the evidence as a whole that the probability is that Mr Storm and Mr Chalk were indeed avalanched. Mr Hannam had witnessed an avalanche to his left only a minute or so before he heard Mr Storm shouting after he had recovered from his fall. That avalanche as described by Mr Hannam started above him. There is no evidence of any other avalanche occurring at the same time, and there must therefore have been either an avalanche which extended from some 30 feet to the left of Mr Hannam across to where Mr Storm said he was climbing with Mr Chalk or alternatively there was, as Mr O’Connor suggests, a separate avalanche which must have been caused either by Mr Storm and the Claimant at whatever position they were climbing, or by some avalanche above them for example caused by the collapse of a cornice.  
  1. Mr O’Connor suggested that any avalanche which covered the area 30 feet to the left of Mr Hannam in gulley 2 and the area where Mr Storm said that he was climbing with the Claimant must have been huge because the distance between the two points was of the order of 200 metres or more across. The perspective from the photographs was strange and taking into account the angle of the face the distance was as much as that Mr O’Connor said. This on the face of it seemed an over estimate given that Mr O’Connor at paragraph 25 of his own report states that the distance between the Tarn and the actual summit is just under 200 metres, pointing out that Mr Storm was guilty of an incorrect estimate in saying that the buttress he climbed was 500 metres above the tarn (A88F). It should be noted that Mr Griffiths’ estimate of the distance between the point where he recorded the Claimant as having ended up and Mr Storm recorded him as having ended up as being only 100 metres.  
  1. I find that the probability is that an avalanche started at some distance above Mr Hannam and Mr Ellis to the left of gulley 2 and, in the absence of evidence of any other avalanches elsewhere on the face, that that avalanche was the same avalanche which caused Mr Storm and Mr Chalk to fall. If there was more than one avalanche, the avalanche higher up may have itself triggered a further avalanche or avalanches on the same fault line.      
  1. The other challenges to the accuracy of Mr Storm’s evidence were based upon the following matters:-  

(i) Time estimates  

Mr Hannam had estimated that he had arrived at the Red Tarn base between 1030 and 1130 whereas Mr Ellis, who was with him, said that they had set off later, and he thought that they had arrived at about 1130 – 1145. Mr Storm accepted in cross-examination that it could have been around 1030 – 1130 that he had got to the base of Red Tarn face. 

  1. Mr Hannam describes seeing some pairs of climbers on the Red Tarn face when he was approaching it. He thought that one of these pairs was Storm and Chalk, describing in evidence how he had later identified them having put ‘two and two together.’  
  2. If these estimates and identification were correct, and Mr Storm’s estimate of some 20 – 30 minutes to climb the small buttress was also correct Mr Storm could not, the Claimant submits, possibly explain how he and the Claimant had done so little climbing between 1130 a.m., when they were seen on the Red Tarn face not far from where the accident was said to have happened by Mr Storm, and 1340 hours when the accident was reported. On the basis of these time estimates and identification Mr Storm and the Claimant had been climbing in the same spot for almost two hours when the accident occurred.  
  3. Mr Storm was not able to give an explanation for the apparent time discrepancy save to say that he was uncertain about the time estimate. He and the Claimant had had no intention to climb to the summit but intended to find ice to ‘play on and practice techniques.’ How long Mr Storm and the Claimant spent kitting up, examining the area and deciding where to climb and then practising their techniques can only be subject to estimates. As also can the time it took from the fall for Mr Storm to pick himself up, realise that his own radio had been lost in the fall, shout for help and receive the radio from Hannam who had to come down from the area where he was climbing above.  
  4. Estimates are notoriously unreliable and have to be approached with great caution especially where, as here, the Claimant seeks to rely upon a whole series of estimates in support of his argument. The difficulty in placing reliance upon such estimates is demonstrated by applying the Claimant’s submissions to Mr Hannam and Mr Ellis. They had arrived at the Red Tarn area at about 1130 – 1145 according to Mr Ellis but somewhat earlier according to Mr Hannam. It took them some 20 minutes to kit up and some 10 – 15 minutes to climb the 150 feet from where Mr Hannam saw the right hand edge of an avalanche come past him some 30 feet to his left. It was a large collection of snow. Shortly after the avalanche, about one minute, he heard someone shouting which turned out to be Mr Storm.  
  5. Upon the basis of this evidence Mr Hannam, who was relied upon for his timings rather than challenged upon them, had succeeded in climbing only 150 feet or so between about midday when he and Mr Ellis would have completed kitting up and 1.30 when the avalanche occurred; yet that 150 feet climb only took some 10 – 15 minutes.  
  6. It would be wholly unsafe to rely upon the estimates upon which the Claimant seeks to base this point. They are a reason for examining the Defendant’s evidence, in particular that of Mr Storm, with care, which I have done.  
  7. The Claimant also relies upon the fact that Mr Egerton and Mr Clethero succeeded in climbing all the way to the summit via Nethermost by 1300 hours in the time that it took Mr Storm and Mr Chalk to climb such a short distance. Again however the same problems about estimates arise together with the fact that the evidence established that Mr Egerton and Mr Clethero had always intended to go to the summit whereas Mr Storm said that he and the Claimant had not; they were intending to practice their techniques on the ice.  

(ii) The documentary evidence.   

  1. In the Patterdale incident report the location is described as ‘number 2 gulley’ and the cause of the incident is described as ‘soloing in gulley 2’.  
  1. It is submitted on behalf of the Claimant that such information must have come from one or more of the rescuers who could not have confused the area at the base and to the right of the small buttress with gulley number 2.  
  1. The problem with reliance upon this incident report is that it cannot on any basis be correct. Mr Storm and Mr Chalk were not in gulley 2 on any account, they were either just emerging from the small buttress or from buttress number 3, neither of which could in any sense be described as gulley 2. Indeed Mr Storm and Mr Chalk were never in gulley number 2 as Mr Storm had made a positive decision that because of the avalanche risk it would be better to climb on the buttress where there was some ice, but the snow was sparse, rather than go into the gulley where the snow was deeper and powdery and there was the risk of an avalanche occurring. There were two climbers in gulley number 2 but they were Mr Hannam and Mr Ellis.  
  1. Mr Duckworth prepared the MRT Leeming report in which he said that the two Stafford MRT personnel were avalanched ‘near summit’. He also made an entry in his diary which said ‘300 foot fall from summit’.   
  1. In evidence Mr Duckworth could not recall who gave him the information for either of those reports, but it is clearly a reasonable inference that someone from amongst the rescuers did so. Which rescuer and what precisely they said is not clear. Mr Duckworth said that he took it as being a general reference to indicate the area but accepted that the distance from the summit to the point where Mr Storm had marked the accident as occurring was about 200 metres give or take 50 metres.   
  1. I have taken each of these points relating to the documentary evidence into account when assessing Mr Storm’s evidence.  
  1. (iii) General points.

(a) The Claimant submits that the climb which Mr Storm describes is too easy and too short for him to have chosen as training for Mr Chalk, given the climbs that he had already undertaken on the winter course, and the opportunity for winter climbing presented on the day in question as demonstrated by what the other MRT members did.  Whilst the buttress was only a Grade 1/2 it did give opportunities for practising techniques on ice according to Mr Storm’s evidence. On the face of it this was not unsuitable for training for Mr Chalk whereas climbing on buttress number 3 may well have been. Mr Clethero said on the basis of his experience after the accident that he considered buttress number 3 would have been unclimbable in the conditions on the day in question. The Defendant submits that it would be unlikely that Mr Storm would have contemplated such a climb for the Claimant in such conditions.  

(b) The Defence (paragraph 8) describes the route as a ‘climb’ whereas Mr Storm described it as a grade 1/2 ‘scramble’. The description ‘climb’ and ‘scramble’ have however both been used by Mr Storm to describe what he was doing in evidence and in his statements. This is a narrow point on the pleadings of little weight.  

(c) The Defendant’s expert believed that the Claimant’s route was as Mr O’Connor described. He had not however spoken to Mr Storm before drafting his report.  

(d) After they had spoken to Mr Storm Mr Hannam and Mr Ellis climbed back up towards gulley 2. Why would they do that, the Claimant asks, if Storm believed he was avalanched from above the small buttress. Furthermore Mr Clethero reported to the Board of Inquiry that Storm had thought that Chalk ‘might still be at the point they avalanched from’ which also contradicts his account of the accident occurring at the small buttress. The Defendant submits however that Mr Storm said that the Claimant was just ahead of him and when he, Mr Storm fell backwards he did not know what had happened to the Claimant and thought that he might still have been above him, and secondly that Mr Hannam and Mr Ellis knew that an avalanche had occurred higher up because Mr Hannam had seen it, and not having been able to see Mr Storm lower down went further up in order to see if he was there.  

(e) There are numerous additional factors which militate against Storm’s account being correct. Firstly he was in shock after the accident, secondly the weather conditions were deteriorating rapidly with poor visibility, thirdly the circumstances were confused, fourthly none of the Defendant’s witnesses identified precisely where the Claimant was found until trial and fifthly Mr Griffiths knew the face better than the rescuers.  

  1. I have given careful consideration to all the Claimant’s points in criticism of Mr Storm’s evidence balanced by the Defendant’s counter arguments as set out above and must weigh those when considering the evidence as a whole. I note that in an almost contemporary document, made days after the accident Mr Storm said ‘we decided to climb on a small buttress to the left of some gullies’. That would indeed be a strange description of buttress number 3 which is on any basis a very substantial buttress.  
  2. Although the Claimant has submitted that Mr Storm was mistaken as opposed to lying the issue as to where the accident happened is so central to the case that I have felt if necessary to consider in addition whether Mr Storm was in fact presenting to the Court an account which, in his heart of hearts, he knew to be untrue. Having considered the matter I have concluded that Mr Storm was not merely seeking to, but was giving me an accurate account of the route that he took and where he and Mr Chalk were when the accident happened. I accept his evidence that he and Mr Chalk were practising their techniques on the area delineated by him on the small photograph described as the small buttress and that they had just moved up from that on to the snow slope immediately above the small buttress with the intention of returning down when they were avalanched. I reject the Claimant’s case that they were in fact on the snow slope above buttress number 3 close to the summit.  

4. Was SAC Storm’s choice of where to climb on the Red Tarn face negligent?

  1. When the climbers set off in the morning the weather conditions were adequate for climbing though it was anticipated that the weather would close in later in the day. In fact it did so shortly before the accident took place. There were still other climbers on Helvellyn apart from the MRT members and I am satisfied that the risks of increasing cloud cover or snow were not so great that the MRT members should have ceased climbing before 1330. The worsening weather conditions were relevant to the ambitiousness of any climb. It would not have been appropriate to have attempted a particularly ambitious long climb when worsening conditions threatened. No such climb was however attempted.  
  1. Mr Storm had qualified as a snow and ice leader in 1992. He had considerable experience climbing overseas at grade 4 and 5 levels, in the Alps, Poland, Canada, Mount Blanc, the Eiger and the Matterhorn. He also had winter climbing experience, albeit to a lesser extent, in the UK including climbing Kinloss, Ben Nevis and the Cairngorms. I am satisfied on the evidence that he was a competent and experienced climber who was entirely suitable to supervise the Claimant. Mr Batson described him as absolutely the sort of person who could supervise someone of Mr Chalk’s experience. Mr Storm had in fact climbed with the Claimant on a number of occasions, going rock climbing with him both for pleasure and as part of the weekend exercises. As a result of this there was a growing friendship between them.  
  1. Mr Storm was the Claimant’s party leader on the 4th March. One of the purposes of that day was to give the Claimant more training in snow and ice techniques. Mr Storm told me that he considered that there was an avalanche danger so he decided to climb on the buttress which had ice and turf on it rather than in the gulley where the snow was soft and powdery. They had walked up together towards the base of number 2 gulley and having assessed the snow conditions favoured the buttress. He said that he discussed this with the Claimant.  
  1. Mr Chalk had started climbing in about December 1993. After he volunteered to join the Stafford MRT in that month he climbed regularly at weekends but this was mostly rock climbing. There is a video which was shown during the evidence of Mr Storm which was taken in 1994 and shows the Claimant both rock climbing and involved in the rescue of a sheep. Mr Storm agreed that the movements of the Claimant shown on the sheep rescue were not those of an experienced mountaineer. He did not use the fail safe system for hands free and a low level of skill was demonstrated.  
  1. In so far as the rock climbing part of the video was concerned this was not a difficult climb apart from the start which was difficult to get on to. Mr Batson who had also seen the video described the Claimant as looking reasonably competent and confident in the rock climbing, overcoming the difficult start. Because of the difficult start the climb was graded as very severe.  
  1. My own observation of the video led me to the view that when it was filmed, the Claimant presented as a somewhat shy and diffident young man who plainly enjoyed his climbing but was clearly still at the early stages in self confidence. Mr Haveron said that by March 1995 he was a very competent mountaineer and rock climber capable of ascending a climb categorised as ‘very severe’. Mr Haveron described him in cross-examination as a part trained member of the Mountain Rescue Team with very limited winter experience. He had reached grade 2 on the winter 1995 course but could not lead a grade 2 climb on snow and ice. He could not therefore be allowed to go up with somebody less experienced than himself without supervision though he could lead if there was someone more experienced with him.  
  1. Mr Batson gave evidence as to the precise amount of experience that the Claimant had gained from the winter course 1995 which ran from the 28th January to the 11th February. On the 31st January 1995 he had undertaken a 150 metre grade 2 climb; on the 2nd February 1995 he had undertaken a 300 feet grade 1 climb; on the 6th February he had carried out a 300 metre grade 2 climb and on Wednesday 8th February he had undertaken a 500 feet grade 3 climb. On the other days of the course the weather was unsuitable for snow and ice winter climbing. Mr Batson said that the experience outlined above was sufficient to enable him to do the climb on the 4th March. He considered that his winter climbing was still limited after the course but not insignificant.  
  1. I am satisfied that by March 1995 the Claimant was sufficiently skilled and experienced to take part in the training weekend in the Lake District and to go on supervised snow and ice climb up to grade 2 level. I am also satisfied as indicated earlier that Mr Storm was a suitably competent and qualified person to give the Claimant adequate supervision.  
  1. During the course of the trial the experts were asked to comment on the difference it would make to their opinions if the Court were to accept that the accident occurred much lower down the face, by the small buttress, as opposed to near the summit on the snowfield above buttress number 3. They concluded that the ascent route would appear to be a reasonable choice in suspect snow conditions but not in highly dangerous ones. It was not submitted by the Claimant that the snow conditions could be described as dangerous.  
  1. The joint comment of the 12th December 2001 expressed the views that the climbing seemed to present few difficulties to a person climbing at grade 2 standard as it contained technical difficulties of a grade 1 – 2 but lacked the seriousness or continuity of a graded climb. Above the buttress the descent was said to be more exposed to avalanche but not to the same pronounced degree as the snow slope above buttress number 3. This coincides with Mr Storm’s own description of the buttress as tiered frozen ice and turf with the climbing being relatively straight forward grade 1 / 2 scrambling, with the area above the buttress being straight forward walking.  
  1. Mr O’Connor described the terrain which Mr Storm said that he and Mr Chalk were on when the accident occurred as being relatively straight forward. He said that the route described by Mr Storm would ‘not be my first choice if the snow conditions were suspect’. At the outset of cross-examination he agreed that such a route was acceptable even if it was not one which he would have chosen.  
  1. I am satisfied on the evidence that the route which Mr Storm chose for himself and the Claimant was within Mr Chalk’s capacity as an inexperienced winter climber, within Mr Storm’s capacity as the team leader and supervisor and an appropriate climb to choose for the weather conditions. The risk of avalanche from the area above the small buttress was less than that of the snow slope above buttress number 3 and the climb chosen was, on Mr O’Connor’s evidence, an acceptable choice even if it was one that he would not have chosen himself.  
  1. Mr Gerard Martin QC rightly conceded therefore that on the evidence the Claimant’s claim could not succeed if Mr Storm’s account of his route and the  
  2. place of the accident was preferred.  

5. Was the decision to make the climb unroped negligent?  

  1. Mr Storm said that they did not use ropes because the ground was relatively easy and ropes were not required.  
  1. In their joint comment of the 12th December 2001 Mr O’Connor and Mr Barton agreed that if the Court accepts that Mr Chalk was a climber competent at grade 2 standard then, ‘in suitable snow conditions, it would be reasonable for him to climb this route unroped but under close supervision’.  
  1. I am satisfied that the Claimant was competent at grade 2 standard, was closely supervised, and furthermore, that the snow condition in the area in question had not been described by anyone in evidence as unsuitable.  
  1. Mr O’Connor and Mr Barton also agreed that it would not be normal practice for competent climbers to rope for a descent of this kind unless there was significant concerns about snow conditions. I am satisfied from the evidence of Mr Storm that there were no significant concerns about snow conditions in the area from which they fell nor should there have been.  
  1. In any event, as was conceded in the opening, it cannot be contended that the injury would probably have been avoided had Mr Storm and the Claimant been roped together. The Claimant could not therefore establish that any failure to use ropes was causative of the injuries sustained.  

Conclusion  

  1. I am satisfied on the evidence that the accident happened in the area above the small buttress described by Mr Storm and that neither the decision to climb the Red Tarn face, nor the choice of climb upon that face, was negligent. I am also satisfied that the Claimant was competent to undergo the climb, that it was proper for it to be undertaken unroped, and that Mr Storm gave proper supervision throughout. I must therefore conclude that the Claimant is unable to recover damages in respect of this tragic accident.   
  1. I will take submissions in writing from the parties on the question of costs, or on any application for permission to appeal.


One thought on “High Court Judgement on Red Tarn Case

  1. Fascinating. This opened my eyes on how much care must be taken when assessing route, snow & weather conditions, and climbing abilities, especially in winter. As a novice, i was once assigned to lead an even rawer recruit on an easy rock climb, in dry conditions, but only because i had climbed it as a second the previous week. That was in the Dark Ages, when Health & Safety were in their infancies.

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