MacIntyre v Ministry of Defence [2011] EWHC 1690 (QB)

[2011] EWHC 1690 (QB)

Case No HQ11X00196

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/06/2011

Before

MR JUSTICE SPENCER

Between

ASA MACINTYREClaimant

MINISTRY OF DEFENCEDefendant

Nigel Cooksley QC and Charles Woodhouse (instructed by BTMK Solicitors LLP) for Claimant

Keith Morton QC and Matthew White (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 23, 24, 25, 26 May 2011

Judgment

Introduction and issues

[1]On 19th July 2006 the claimant, Second Lieutenant Asa MacIntyre, was very seriously injured in a climbing accident in the Bavarian Alps in the course of a formal army adventurous training exercise. He and another young officer, Lieutenant Laura Champion, were taking part in a day’s climbing expedition on the Alpspitze mountain, led jointly by their commanding officer, Lieutenant Colonel David Robson (now Brigadier Robson) and by Captain Anna Williams (now Lewis). They had successfully climbed a steep section of the mountain following recognised routes. All four members of the party were looking forward to tackling the final ascent to the summit. In order to reach the foot of that ascent they had to cross an area of rugged terrain known as the Herzl Terrace. The climbing was technically less difficult, but because the mountain here was less steep there was a much greater quantity of loose rock which presented a potential hazard.

[2]The claimant and Lieutenant Champion were standing on a relatively wide rock ledge, each roped to his or her respective leader, waiting for the leaders to complete the next pitch so that they in turn could climb that section. The claimant’s position on the ledge gave him some protection against rock falls from above. As he stood and waited there was a minor rock fall from the area where the leaders had just completed the pitch. He heeded the leaders’ warning shouts of “Below!”, and took the precaution of pressing himself as close to the rock face as possible. Despite this the claimant was struck on the head by a falling rock. He suffered skull fractures resulting in a severe traumatic brain injury. As a consequence he developed epilepsy and permanent hearing loss in the right ear. He was discharged from the army in April 2009 on medical grounds. His earning capacity has been profoundly reduced. Potentially, therefore, this is a very substantial damages claim.

[3]I am trying the issue of liability only. I have heard evidence and submissions over a period of 3 ½ days. I have heard oral evidence from the four participants in the training exercise. All were at a disadvantage in trying to recollect the detail of events which happened nearly five years ago. The proceedings were issued only days before the expiry of the limitation period. I have also had the assistance of expert evidence on both sides

[4]The claimant’s case is put in negligence only. It could be put no other way. The issues I have to determine are whether there was any breach of duty on the part of the defendant and, if there was, whether any such breach of duty was causative of the claimant’s accident.

The respective cases

[5]The claimant’s case is that he was a novice climber, entirely reliant on the expertise of the leaders. Mr Cooksley QC submits that although the leaders held relevant qualifications and were extremely experienced, they were not formally qualified to be leading these novice climbers across the Herzl Terrace, which presented special challenges different from those in the climb they had successfully completed, and different from the final ascent they were proposing to make. It is also the claimant’s case that there had not been a sufficient assessment by the leaders of the risk posed by the crossing of the Herzl Terrace. Had there been proper consideration and assessment of that risk, a different route should have been taken in the interests of safety. Furthermore the claimant’s case is that the manner in which the leaders chose to climb the Herzl Terrace, side by side and climbing to the full 50 metre length of their ropes, significantly increased the risk of precipitating a rock fall.

[6]The defendant’s case is that the accident was a tragic mishap, and that such a risk can never be eliminated in mountaineering which is inherently hazardous. Mr Morton QC submits that the leaders were properly qualified and highly experienced. In accordance with good practice they regularly reviewed their risk assessment as the day went on and as conditions changed. The defendant’s case is that the climbing methods the leaders adopted were perfectly proper and did not cause or contribute to the accident.

Adventurous training and climbing terminology

[7]In order to explain my findings and conclusions it is necessary first to set out the relevant background to the claimant’s participation in this adventurous training exercise. The claimant joined the army as an officer cadet in 2004. Following the completion of his training at Sandhurst he was posted in February 2006 to the headquarters of 1 UK Armoured Division and Signal Regiment at Herford, Germany. At the time of the accident he was 26 years of age, and a Second Lieutenant in the Royal Corps of Signals. He was clearly a promising and highly regarded officer. Indeed, two years after the accident, and before his discharge from the army on medical grounds, he had been promoted to the rank of Captain.

[8]From 5th July 2006 the claimant was assigned to the adventurous training exercise in question in Bavaria. So too was another young officer, Lieutenant Laura Champion, then 25 years of age. She too was subsequently promoted to the rank of Captain in the Royal Corps of Signals before leaving the army in 2008 to study medicine at Cardiff University. Unlike the claimant, Lieutenant Champion had long been interested in climbing and from her late teens she had taken an active part in teaching children to climb as well as pursuing her own interest in the sport.

[9]Adventurous training for the armed services is, as one might expect, strictly controlled and the scheme is set out in a very detailed document called the Joint Service Adventurous Training (JSAT) Scheme. The foreword explains the purpose and ethos of the scheme:

“Adventurous Training is an essential part of Tri-Service training. It complements individual and collective training by contributing towards the development of leadership, inter-dependency, physical courage and mental robustness. When faced with the tangible risk, these qualities are honed when undertaking Adventurous Training.”

[10]The JSAT Scheme gives details of a wide range of activities including canoeing, caving, gliding, sailing, parachuting, skiing and diving. It also includes climbing and mountaineering. For each activity there are courses suited to the participant’s experience, ranging from an introductory course to an instructor course. The Scheme sets out the description and aim of the course, the experience required before the course can be undertaken, and the civilian equivalent (if any). Most important of all, the Scheme sets out, in tabular form, the applicable “qualification limitation” and “ratios”, ie the limits of the activities permitted by someone holding the relevant qualification, and the permitted ratio of leaders to learners for any given activity.

[11]It is necessary to examine closely the terms of the Scheme in order to determine the issue of whether Lieutenant Colonel Robson and Captain Williams were appropriately qualified to lead the claimant and Lieutenant Champion in this exercise on the Alpspitze mountain. First, however, some explanation of the relevant technical mountaineering and climbing terms is required.

[12]This case concerns roped rock climbing, with the leader roped to the novice. Standing at the foot of the rock wall, the climbers tie themselves securely to opposite ends of the climbing rope, 50 metres in length. They wear climbing harnesses to spread the force of any impact of the rope. The leader sets off up the rock and, as opportunities occur, the leader securely fixes items of climbing equipment - generically called “protection”- to the rock face. On well used routes there are often pre-determined bolt holes reinforced with metal and usually marked in red paint. The leader attaches his rope to the protection by means of a karabiner (a strong metal snap link) in such a way as to allow the rope to run freely as he ascends. This arrangement is called a running belay or runner. Depending on the difficulty of the ascent, the leader may fix several runners.

[13]At the other end of the rope, the second secures (i.e. belays) the leader’s rope using a metal friction device called a belay plate or brake. Should the leader slip, the second locks the rope in the belay plate so that the leader’s fall can be held through the runner that is then acting like a pulley. In the event of a fall, the leader falls some distance before the rope tightens (perhaps as much as 10 metres) but is prevented from falling the full length of the rope.

[14]When the leader has covered a reasonable distance on this first section of the climb (the section is called a “pitch”), he will stop at a convenient ledge or “stance”. The leader places secure pieces of protection in the rock and then securely ties himself onto these so as to be able to withstand any pull should the second slip whilst climbing. This arrangement of ropes and protection is called a “belay”.

[15]The leader pulls off any slack rope (known as “taking in”) and then gives an unambiguous signal at which the second starts to climb. As the second climbs, the leader takes in the rope through his belay plate, thus securing the second. Should the second slip, the leader locks the rope and the fall is easily held. On normal pitches running vertically up the crag, the second will only fall a short distance, a metre or so, before the rope tightens. This arrangement practically eliminates the danger from falls for the second.

[16]When the second arrives at the ledge where the leader is waiting they change places on the stance so that the second is now securely tied to the stance. The leader then continues further up the climb, on a further pitch, and the process is repeated. Thus it follows that a “single” pitch climb is less than a rope length in height. “Multi-pitch” climbs involved at least two pitches, and often many more.

[17]Before ever going on a mountain, novices are taught these climbing techniques on a climbing wall. This was experience which the claimant gained, under the tuition of Captain Williams in particular, prior to climbing on the Alpspitze on 18th and 19th July 2006. It is clear that he very much enjoyed climbing. He and Lieutenant Champion volunteered for at least one extra evening training session with Captain Williams and the claimant had purchased some equipment of his own.

The Alpspitze mountain

[18]The summit of the Alpspitze mountain lies at 2628 metres above sea level. By way of comparison with British mountains, the height of Snowdon is 1085 metres and Ben Nevis 1344 metres. Extensive reference was made in the evidence to a comprehensive mountaineering guidebook of this area of the Bavarian Alps (written in German). It was the guidebook used on this expedition. It shows in detail the various routes up the mountain, and grades the difficulty of each section of the route. The grading system is numerical: the higher the number, the more difficult the climb. The overall grading of the route is determined by the highest grading of any individual section of the route.

[19]Access to the start of the mountain proper is by cable car. In common with some (but by no means all) other Alpine mountains, the Alpspitze also has a “Klettersteig”, or climbing ladder. This is a climbing path, with metal ladders and steps to aid climbing, with a wire alongside the whole length to which the climber attaches a form of harness. On the Alpspitze, the Klettersteig permitted ascent from the top of the cable car to the summit of the mountain, on a route up the right hand side as one looks at the plans and photographs of the north face.

[20]On 15th July Captain Williams had led Lieutenant Champion up the Klettersteig to the summit. On 18th July, the day before the accident, Lieutenant Colonel Robson and Captain Williams had led the claimant and Lieutenant Champion on a successful ascent of the lower part of the north face by a route called the KG-Ausbildungsweg. This was the novices’ first multi-pitch climb. It involved eight pitches and an ascent of almost 315 metres. Both novices climbed extremely well. It was a successful and exhilarating experience.

[21]The top of the route brought them onto the Herzl Terrace, immediately adjacent to the Herzl itself, which is a heart shaped patch of permanent snow to the left. The ascent had taken them all morning. By the time they arrived at the top it was 2 pm. That was enough climbing for the day, and they walked off the mountain and descended by cable car. I shall return later to the discussions which took place about the possibility of climbing the rest of the mountain the following day and reaching the summit. It is necessary however, to explain at this stage the route which they ultimately took the next day because it bears upon the question of the leaders’ qualifications.

[22]As the photograph of the north face at page 181 of the guidebook vividly shows, there are only two climbing routes up to the summit. One is a continuation of the KG-Ausbildungsweg which the party had climbed on 18th July. The other is the oldest route to the summit, the Adam-Platte. The guidebook gives no indication how one gets from the top of the routes up the lower mountain (ending at the Herzl Terrace) to the start of the Adam-Platte. No route is shown. By contrast, the guidebook does show a continuation of the KG-Ausbildungsweg across the Herzl Terrace to the start of the final ascent by the same route. It is the only route across the Herzl Terrace which is shown in the guidebook.

[23]The climbing on the Herzl Terrace is technically far more straightforward than the lower or upper routes. Those other routes are graded at 4 and 4 minus respectively at their steepest, whereas the continuation of KG-Ausbildungsweg across the Herzl Terrace is graded at only 1-2. However, the terrain of the Herzl Terrace is different in that the slope of the mountain is far less severe with the result that there is more standing loose rock. It is this feature of the Herzl Terrace which is said, on behalf of the claimant, to present mountaineering challenges which Lieutenant Colonel Robson and Captain Williams were not formally qualified to tackle.

Qualifications to lead the expedition

[24]In the light of this explanation of the climbing techniques required and the relevant features of the mountain, I turn next to the somewhat labyrinthine provisions of the JSAT Scheme which define the qualifications and the limits within which Lieutenant Colonel Robson and Captain Williams were permitted to operate.

[25]The expeditions on 18th and 19th July were part of a much larger adventurous training exercise involving a total of some 41 army personnel over an 18 day period between 5th July and 23rd July. Broadly speaking, the activities were kayaking and climbing. Authorisation for the exercise had to be sought by the submission of a JSAT “form alpha”. The exercise leader, whose duty it was to complete the application form, was Warrant Officer Callum Fergusson. The guidance notes on completion of the form explain that the aim of the exercise should be set out in a simple statement of what the expedition is attempting to achieve. The guidance notes indicate that the requisite “activity-specific information” to be given on the form for mountaineering should include mountain routes (with grades where applicable) and heights of significant peaks, and that for rock climbing information should be given on the areas and grade of the climbs.

[26]Regrettably the final completed version of the application form, as approved, has not been found. It is one of several important documents in relation to the exercise and the accident which inexplicably cannot be located. Although this is most unsatisfactory and surprising, it is not suggested that there is any sinister reason. The defendant has disclosed two draft versions of the application form, the second of which (bundle page 418) is assumed to be the final draft. There is no doubt that the appropriate application form was duly submitted because authorisation for the course was granted by a letter dated 3rd July 2006.

[27]In the application form the aim of the exercise is stated as follows:

“To develop potential and existing instructors in SMP [Summer Mountaineering Proficiency], RCP [Rock Climbing Proficiency] and KFC [Kayak Foundation Course]. To conduct adventure training in conjunction with JSP 419 and place the individuals in a challenging environment, thus identifying the direct correlation between AT [Adventurous Training] and operations.”

[28]The relevant activities indicated in the form were rock climbing and mountaineering. The form required an indication whether the mountaineering was one or more of the following: Alpine, high altitude, winter, or summer. Only “summer” was ticked. The form also indicated as an “other activity”, Klettersteig (spelt incorrectly). The claimant’s case is that the application form failed to indicate that there was Alpine mountaineering in prospect, which would have prompted enquiry as to whether the leaders were appropriately qualified.

[29]The application form required a detailed itinerary of the expedition including dates, routes and activities, with maps, traces and charts to be attached as appropriate. The headings should include daily itinerary, activity, route and timings. As shown in the completed form, the activities day by day are set out but only in the most general terms. In particular, for 18th and 19th July the indicated activities are:

“ SMP, KFC, Climbing/Klettersteig.”

The claimant’s case is that here again the application form was inadequate and misleading in that there was no indication that multi-pitch as opposed to single pitch climbing was proposed, still less any mention of “Alpine” mountaineering.

[30]An important part of the application form was a risk assessment for each of the activities. In respect of climbing, the hazards identified were “falls” and “falling rocks”. Existing controls were specified as:

“…safe area at bottom of crag for personnel not involved…”

For “summer mountaineering” the only hazard identified was “getting lost”.

[31]As commanding officer, Lieutenant Colonel Robson would have signed the certificate at the end of the application form, approving the expedition and confirming it fulfilled the criteria laid down in Adventurous Training Policy and that the expedition would be conducted in accordance with current regulations.

[32]In July 2006, when the relevant expedition took place, Lieutenant Colonel Robson and Captain Williams held the following relevant qualifications. Both of them held the award of Joint Service Rock Climbing Leader (“RCL”). Lieutenant-Colonel Robson had gained this award 19 years earlier in 1987. Captain Williams achieved it in 2003. In the course of the evidence it emerged that the wording of the qualification limitations and ratios for the RCL has changed since the date of the accident. The version current at the time (issued in April 2004) reads as follows, so far as material:

“ May lead another climber on a multi-pitch climb as part of an authorised AT programme. May only use easily accessiblecrags under summer conditions and may not lead others into the mountains to climb until they possess a mountain leader award.”

[33]The highlighted words “easily accessible crags” were much debated in evidence. The claimant’s case is that the Herzl Terrace, where the accident occurred, can by no stretch of the imagination be described as a “crag” and that consequently the claimant should never have been led there.

[34]Both Lieutenant Colonel Robson and Captain Williams also held the requisite “mountain leader award”, referred to in the limitations of the RCL qualification in that they both held the qualification of “Joint Service Mountain Expedition Leader (Summer)” , (“MLS”). Lieutenant Colonel Robson had achieved this award in 1987, 19 years earlier. Captain Williams had achieved it in 2001. The limitation on the MLS qualification current in 2006 was as follows:

“May lead expeditions world-wide which must be below thesnowline and in summer conditions.”

[35]Again, the highlighted words “below the snowline” were much debated in evidence. The claimant’s case is that the Herzl Terrace was above the snowline and that consequently, for this reason also, the leaders’ qualifications did not permit them to take the claimant onto the Herzl Terrace where the accident happened. Again, I shall return to this issue.

[36]The course description for the qualification Mountain Expedition Leader (Summer) includes the assessment of capability “to lead walking groups over mountainous terrain”, and pre-supposes that candidates have developed the skills acquired on the Summer Mountain Leader training course including the skills required “… to lead groups across rocky, remote and rugged terrain.”

[37]In addition to the Summer Mountain Expedition Leader qualification, Captain Williams also held the qualification of “Joint Service Mountain Expedition Leader (Winter)” (“MLW”), which she gained in 2005. The limitation on this qualification current in 2006 was as follows:

“May lead Service personnel on winter mountaineering expeditions world wide compatible with their logbook experience.”

[38]The course description for the MLW qualification describes it as training officers to lead personnel “in mountainous terrain in winter conditions”. This qualification has a civilian equivalent, namely the Mountain Leader (Winter) qualification awarded by the Scottish Mountain Leader Training Board (SMLTB). On the evidence of the defendant’s expert, Mr Robert Barton, to which I shall return in more detail, this is a particularly prestigious and well respected award. Mr Barton was for 13 years an instructor at the Scottish National Outdoor Training Centre, Glenmore Lodge, which awards the qualification. It is also to be noted that the Joint Service Mountain Expedition Leader (Winter) qualification is the highest qualification within the Joint Service Winter Mountaineering Scheme. There is no further progression within the Scheme. It is recommended that candidates wishing to extend their involvement within mountaineering qualifications should consider the Joint Service Alpine Mountaineering Scheme.

[39]The claimant’s case is that Lieutenant Colonel Robson and Captain Williams would only have been formally qualified to lead the claimant and Lieutenant Champion onto the Herzl Terrace if they had the relevant qualification under the Joint Service Alpine Mountaineering Scheme. This qualification has no civilian equivalent. Both Lieutenant Colonel Robson and Captain Williams had achieved the Klettersteig leader qualification under the Alpine Scheme in June 2006, only a month or so before this expedition. The claimant’s case, however, is that both leaders should have held the qualification of, at least, Alpine Mountain Leader (“AML”).

[40]The limitation on the AML qualification current in 2006 was as follows:

“…can lead a maximum of 5 and a minimum of 2 over non-technical Alpine terrain in summer conditions including Glacial travel when rock/snow and ice climbing skills are required.”

The course description for this qualification involves training “in the techniques required to cross permanent snow fields and glacial terrain”, including “...the techniques required to ascend snow covered mountains in summer conditions.”

[41]It is relevant to record that, although they did not hold them at the time, both Lieutenant Colonel Robson and Captain Williams have subsequently attained higher qualifications. In 2007 Lieutenant Colonel Robson achieved the qualification of Joint Service Rock Climbing Instructor , which is the highest award in the Joint Service Scheme. In 2010 he achieved the qualification of Advanced Joint Service Mountain Expedition Leader, the highest award in the Joint Service Mountaineering Scheme. Captain Williams qualified in 2008 as a Joint Service Alpine Mountain Leader.

[42]In addition to the formal qualifications they held at the time of this expedition in July 2006, both Lieutenant Colonel Robson and Captain Williams had very extensive experience of climbing, including multi-pitch climbing, as their exhibited log books confirm. For example, Lieutenant Colonel Robson had completed 140 recognised rock climbs as leader or second, in Britain, the Pyrenees, northern Germany and the Alps. His experience of winter mountaineering included reaching the summit of Mont Blanc (the highest mountain in the Alps), Pico de Aneto (the highest mountain in the Pyrenees), and Mount Gordon in the Canadian Rockies (3,200 metres). He had spent over 50 days instructing students in rock climbing activities, and a further 50 days instructing students in general mountaineering and trekking. He had organised and run a three week expedition climbing and trekking in the Maritime Alps; he had instructed on a three week expedition climbing and trekking in the Pyrenees; he had run a number of adventurous training exercises in the UK and Germany. The terrain on and around the Alpspitze was the sort of Alpine terrain with which he was very familiar.

[43]Captain Williams had climbed extensively in Britain and in Europe. She had participated in expeditions in the French and Swiss Alps, and in the Himalayas. She had led an expedition in the Dolomites.

[44]It is important to recognise the extent to which the Joint Services qualifications under the Rock Climbing Scheme and under the Summer Mountaineering and Winter Mountaineering Schemes complement one another and provide an impressively wide range of expertise in anyone who holds a combination of the awards. It is to be noted, for example, that in the 2004 edition of the Joint Service Rock Climbing Scheme, it is recorded that there is no progression within the Scheme beyond the qualification of Rock Climbing Instructor, but that holders of that award are encouraged to gain awards from the Winter and Summer Mountaineering Schemes in order to extend the remit of their award. Both Lieutenant Colonel Robson and Captain Williams had done just that.

[45]A good example of the relevance of the overlap between the qualifications under the Rock Climbing Scheme and the Summer Mountaineering Scheme is highlighted by Mr.Cooksley’s submission that the qualification of Mountain Expedition Leader (Summer), which Lieutenant Colonel Robson and Captain Williams both held, did not qualify them to lead activities which involved “planned use of a rope”. Only the higher qualification under the Summer Mountaineering Scheme of “Advanced Joint Service Expedition Leader (Summer)” gave that authorisation. However, the submission ignores the fact that they both also held the qualification of Rock Climbing Leader, which by definition authorised them to lead activities involving planned use of a rope. These complementary qualifications therefore authorised both leaders to conduct the relevant activity.

The expert witnesses

[46]The claimant’s expert witness was Mr Tim Davis. He has an impressive armed services background and currently owns and manages an outdoor education centre in southern Norway. He retired from the army in 1994 after 14 years service. He gained extensive climbing and mountaineering experience as a commando engineer with 59 Independent Commando Squadron, Royal Engineers. He then became a physical and adventurous training instructor in the regimental gymnasium. In his latter years of service he was a Staff Sergeant Instructor at the Joint Service centre in Bavaria running rock climbing courses. His final posting in the Army was as Chief Instructor Adventurous Training in the Harz mountains in Bavaria. During his army service he achieved the qualification of Joint Services Rock Climbing Instructor (in 1984) and the qualification of Joint Services Mountain Instructor in 1992. He accepted in cross-examination, however, that he would not himself have been qualified to lead this expedition on the Alpspitze.

[47]In July 2010 Mr Davis visited what he believed to be the location of the accident. In the company of a Bavarian guide who was very familiar with the Alpspitze, Mr Davis ascended the summit via the Adam-Platte route. He did not cross or set foot upon the Herzl Terrace. This is understandable because at that stage it was believed by all concerned that the accident had taken place when the party was already on the second pitch of the Adam-Platte route itself. Only comparatively recently has it been acknowledged, on all sides, that in fact the expedition was still on the Herzl Terrace when the accident occurred. Nevertheless, Mr Davis has the advantage of first hand experience of the mountain and its general nature.

[48]The defendant’s expert witness was Mr Robert Barton. It is accepted that Mr Barton is exceptionally well qualified. He must be one of the most experienced and well qualified mountain climbing experts in the United Kingdom. He started leading mountaineering parties in 1972. In 1978 he qualified as an International Mountain Guide, recognised to be the highest qualification worldwide. From 1975 he was an instructor for 13 years at Glenmore Lodge, the Scottish National Outdoor Training Centre. He holds all the United Kingdom mountaineering awards, winter and summer. He has regularly assessed candidates for those awards. He has worked extensively as a mountain guide in Britain, the Alps and the Arctic, specialising in Alpine mountaineering and ski/mountaineering. He was a mountain rescue team leader for eight years. He is a former Chair of the United Kingdom Mountain Training Board. In that capacity he has had to wrestle with definitions and limitations of climbing and mountaineering qualifications. He is a very experienced expert witness. Some four years ago he published a book entitled “Safety, risk and adventure in outdoor activities”, the only such work in its field.

[49]Unlike Mr Davis, Mr Barton has not visited the Alpspitze. Nor does he have Mr Davis’ military experience. However, Mr Barton confirmed that the Alpspitze is typical of the Alpine mountains with which he is extremely familiar. Whilst he accepts that there is no substitute for visiting the mountain, he and Mr Davis are both at the same disadvantage in never having seen or traversed the relevant parts of the Herzl Terrace.

Were the leaders appropriately qualified for the Herzl Terrace?

[50]The defendant’s case is that Lieutenant Colonel Robson and Captain Williams were both appropriately qualified to lead the expedition across the Herzl Terrace by virtue of the combination of their qualifications as Joint Service Rock Climbing Leaders and Joint Service Mountain Expedition Leaders (Summer). The claimant’s case is that the limitations on these qualifications precluded them from leading an expedition across the Herzl Terrace because:(a) it was not an “easily accessible crag” for the purpose of the RCL qualification ; and

(b) the Mountain Expedition Leader qualification they both held was confined to expeditions “below the snowline” whereas the Herzl Terrace was above the snowline. The claimant’s case is that only the qualification of Joint Service Alpine Mountain Leader would have sufficed.

and

[51]Mr Barton, the defendant’s expert witness, accepts that if looked at in isolation one could not describe the Herzl Terrace as a “crag”. He makes the valid point, however, that the ascent of the lower part of the mountain, successfully achieved by different routes on 18th and 19th July, and the Adam Platte route to the summit which they proposed to follow, were undoubtedly “crags”. It would therefore be strange if the leaders’ qualifications permitted them to lead on the first and third parts of the climb, but not on the second connecting section across the Herzl Terrace. This would be particularly anomalous as the climbing of the middle section was undoubtedly far less difficult, technically, than the other two sections.

[52]Mr Davis, the claimant’s expert witness, says that such an approach fails to recognise the special and different nature of the terrain on the Herzl Terrace, which is far more Alpine in character because of its loose rock. In his report, based upon his observation of the Herzl Terrace from the Klettersteig, Mr Davis describes the Herzl Terrace as “a dangerous area of loose rock and steep angled slab”.

[53]According to the Shorter Oxford English Dictionary, a “crag” is “a steep rugged rock; a rough rock detached or projecting”. One has only to look at the photograph of the ledge on which the claimant and Lieutenant Champion were standing when the rock fall occurred (a photograph taken when the rescue by helicopter was in progress) to appreciate that there were undoubtedly areas of “crag” ( in the dictionary sense) on the Herzl Terrace. I have considered carefully the limitation on the qualification in the Joint Service Rock Climbing Scheme. Looked at in a common sense way, the distinction the limitation draws for RCL is between climbs on indoor climbing walls and climbs on crags, single pitch or otherwise. It seems to me that in imposing the limitation of using only “easily accessible crags” the Scheme was not purporting to define with precision the terrain on a mountainside upon which multi-pitch climbing takes place. Rather, the purpose was to focus on the requirement that the rock being climbed, like the indoor climbing wall, was easily accessible. I am, therefore, satisfied that the Herzl Terrace can properly be described as an area of “crags” for the purposes of the RCL qualification.

[54]As to easy accessibility there was, I think, eventually consensus between the parties. The start of the Herzl Terrace (i.e. the top of the routes the party had climbed on the morning of 19th July) was plainly “easily accessible”. From a similar and adjacent location the previous day the party had walked off the mountain to the cable car without any difficulty. Similarly, on the other side of the Herzl Terrace, at the start of the Adam Platte ascent route, there is a footpath across to the Klettersteig, leading in turn to the cable car. Again, this made the Herzl Terrace, and the route the party was taking across it, “easily accessible” for the purpose of the limitation on the leaders’ qualification.

[55]The remaining question, also much debated in the evidence, is whether the Herzl Terrace was or was not “below the snowline” for the purpose of the limitation imposed on the leaders’ qualification as Joint Service Mountain Expedition Leader (Summer). The Herzl itself is undoubtedly a patch of permanent snow, present all the year round, although its size will vary. For example, I accept Lieutenant Colonel Robson’s evidence that at the time of this accident the size of the Hertzl snowfield was considerably smaller than shown on Mr Davis’ large size photograph, taken four years later in July 2010.

[56]However, the fact that there is a patch of permanent snow at a given point on a mountain does not mean that the location of that patch equates with the snowline of the mountain. As was pointed out in evidence, the photograph of the Alpspitze at page 181 of the guidebook shows several areas of snow lying on the less steep parts of the mountain. Indeed, all the routes up the lower mountain (i.e. those successfully negotiated by this party on 18th/19th July) are above some of those patches of snow. Even Mr Davis does not suggest that those routes are thereby to be regarded as “above the snowline”.

[57]Speaking with the authority of his vast experience, including his work on the drafting of qualifications and there limitations, Mr Barton said that the only meaningful interpretation of the limitation “below the snowline”, in interpreting mountaineering qualifications, is “below areas where the skills of snow and ice mountaineering are necessary for safe progress”. I accept this definition without hesitation. These limitations on the qualifications awarded by the Joint Service Scheme are not to be construed as if they were the words of a statute. But even if they were, a purposive construction would compel the conclusion that Mr Barton’s interpretation must be correct.

Conclusions on qualifications

[58]I therefore reject the suggestion on behalf of the claimant that Lieutenant Colonel Robson and Captain Williams did not hold the necessary joint service qualifications to lead the claimant and Lieutenant Champion across the Herzl Terrace. It follows that I also reject the suggestion that only an Alpine mountaineering qualification would have sufficed. Although the Alpspitze is very obviously an Alpine mountain, it does not follow that only an Alpine qualification would suffice. I accept Mr Barton’s evidence that it is the nature of the terrain that is all important, rather than its geographical location. It is true that there is a greater likelihood of encountering loose rock on an Alpine mountain, but this is not a phenomenon unique to Alpine mountains. It is commonly encountered on the higher British mountains as well, for example Snowdon and Ben Nevis.

[59]It is instructive that most (although admittedly not all) of the components of the course for the Joint Service Alpine Mountain Leader qualification involve the techniques required to cross permanent snow fields and glacial terrain, and the techniques required to ascend snow covered mountains in summer conditions. Thus Mr Barton is correct in his opinion that the ground in question on the Herzl Terrace lies closer to the multi-pitch end of the spectrum than the glacier and high mountain end of the spectrum.

[60]In any event, Captain Williams held the Joint Service Winter Mountaineering Scheme award of Mountain Expedition Leader (Winter), and thus possessed the skills to lead personnel over mountainous terrain even in winter conditions. As already explained, this qualification has a civilian equivalent which Captain Williams had also attained. Mr Barton said that this qualification is generally accepted as carrying particular weight. It carries a certain kudos. It is a qualification which gives assurance that the holder of the qualification has had his or her judgement tested. Mr Barton said that when he was running outward bound courses it was a qualification to which he would attach particular weight. Despite Mr Cooksley’s submission that the description of the course on the civilian certificate itself suggests that it is little more than a hill walking qualification in hill walking conditions, I accept Mr Barton’s evidence and assessment. No-one is better placed to express a view. I note also from the Joint Service Mountain Expedition Leader (Winter) course certificate ( at page 35 of the supplemental bundle) that the syllabus included expedition planning and route finding, and mountaineering and environmental hazards.

[61]I also accept Mr Barton’s evidence that although Lieutenant Colonel Robson and Captain Williams were operating at the upper end of the limitations of their qualifications, this should in no way be regarded as undesirable. On the contrary, it is a positive and desirable feature of a training exercise that the leaders as well as the novices are stretched.

[62]Mr Cooksley made the broader submission that the whole authorisation process for this adventurous training exercise was flawed because it gave no inkling that there would be any multi-pitch climbing on the Alpspitze. He also submits that it was misleading and inaccurate to suggest that the aim of the exercise was to develop the applicant as a potential instructor in Summer Mountain Proficiency or Rock Climbing Proficiency, the most basic of the qualifications under the respective joint service schemes for mountaineering and rock climbing, when the claimant himself did not hold even that basic qualification.

[63]In my judgment this is to construe the application form too narrowly. The information provided was necessarily generic in nature, covering a wide variety of courses and a wide variety of participants. Mr Cooksley even suggested, in closing submissions, in what he described as a “new point”, that on a literal construction of the Joint Service Rock Climbing Scheme the claimant should not have been on the mountain at all. I reject that submission. Mr Davis conceded that he had no criticism of the leaders’ qualification to lead this expedition on the lower section of the mountain on 18th and 19th July. The evidence was that this area is known as the “Klettergarten” (or climbing garden). Another way of putting it would be to describe the lower mountain as nursery slopes for learning multi-pitch climbing.

[64]Having rejected the claimant’s case based upon lack of qualifications, I turn to the quite separate issue of whether, although they were properly qualified to do so, the leaders were negligent in taking the route across the Herzl Terrace or negligent in the way they climbed it.

Duty and standard of Care

[65]It is common ground that the defendant owed the claimant a duty of care to see that the climbing undertaken was properly considered and that reasonable decisions were taken as to whether and where to climb: see Chalk v Ministry of Defence

[2002] EWHC 422

, at paragraph 37, per Nelson J.

[66]I also accept the claimant’s submission that, as lead climbers and instructors, Lieutenant Colonel Robson and Captain Lewis owed the claimant a duty to take all reasonable steps to minimise the danger to him of injury or death: see Woodroffe-Hedley v Cuthbertson (unreported, 20th June 1997), per Dyson J at page 18F. In the context of this case, that included a duty to take all reasonable steps to minimise the danger to the claimant from rock fall.

[67]The duty of care, as the defendant saw it, is spelt out in the introduction to chapter 11 of the Army General Administrative Instruction (AGIAM), at paragraph 11.005:

“Duty of Care. By its very nature AT involves potential risk to life and limb. Leaders and instructors are to be quite clear that they are wholly responsible for the welfare and care of those in their charge (but this does not mean individuals abrogate their own personal safety). Leaders and instructors are to ensure that at all times there is a safe system of training [and] an acceptable framework of safety in place. It is wholly indefensible to expose anyone to unnecessary risk. It is essential that leaders and instructors objectively assess and continuously monitor individuals in their charge with relation to the activity, their experience, the equipment available and the prevailing conditions.”

[68]In the same document, at paragraph 11.008, the defendant’s view of the ethos of adventurous training is set out: … the opportunity, particularly for young officers and non-commissioned officers, to take part in the conduct of expeditions all over the world, often involving real risk, is a key element in the preparation of young Service personnel for operations…. It is essential that the “expeditionary” element of this training is retained at every level and that physical and mental challenges are met and overcome throughout planned activities. It is this element of challenge, requiring the individuals involved to develop qualities of fitness, courage and endurance, that distinguishes AT from sport. As the perception of what is challenging changes through experience so AT is designed to be progressive. Service personnel can be led though a series of levels from an initial and basic introduction to, ultimately becoming a valuable Joint Service AT leader/instructor.”

[69]Mr Morton QC, on behalf of the defendant, submits that this important purpose behind the training has to be borne firmly in mind in assessing the standard of care appropriate in a case such as this. As Lord Hoffmann put it in Tomlinson v Congleton Borough Council [2004] 1 A.C. 46, at paragraph 34:

“ .. the question of what amounts to ‘such care as in all the circumstances of the case is reasonable’ depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and cost of preventative measures. These factors have to be balanced against each other.”

[70]Mr Morton also submits that the actions of Lieutenant Colonel Robson and Captain Williams are to be judged by the standards of the reasonable climbing leader in such circumstances. It is not sufficient to show that a different decision might have been better. Rather the test is whether no reasonable climbing leader would have done what they did. Mr Morton goes further still in submitting that even to do what no reasonable climbing leader would do is not in itself sufficient to prove negligence. He relies upon the recent decision of the Court of Appeal in Whippey v Jones

[2009] EWCA Civ 452

where Aikens LJ explained the proper approach in these terms (at paragraph 16):

“ The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and testing it against an objective standard of “reasonable behaviour”

. Before holding that a person’s standard of care has fallen below the objective standard expected and so finding he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be sufficient probability of injury to lead a reasonable person (the defendant) to anticipate it.”

[71]I accept all these submissions made on behalf of the defendant. They were not seriously challenged.

[72]Mr Cooksley and Mr Woodhouse in their written closing submissions do, however, advance other equally indisputable propositions which have a bearing upon the standard of care applicable in this case. In summary those points are: a) The claimant was not a voluntary participant in sporting activities. He was engaged on military training in the course of his employment b) As a novice climber, he was fully dependent upon Lieutenant Colonel Robson and Captain Williams for guidance and was not in a position realistically to challenge their decisions. c) Although the claimant (like Lieutenant Champion) was an enthusiastic participant in the day’s climbing, and although the exercise was conducted in a less formal way than an operation on active service, a request from his commanding officer was in reality indistinguishable from an order.

[73]Against this background of the duty and standard of care, I turn to examine in more detail the events immediately surrounding the accident in order to determine whether there was a breach of duty, and if so whether any such breach was causative of the claimant’s accident. A sequential approach is required, assessing the reasonableness of the decisions made and the action taken stage by stage.

Planning the day’s climb of 19th July

[74]As already explained Lieutenant Colonel Robson and Captain Williams had led the claimant and Lieutenant Champion on a successful and exhilarating climb up the lower section of the Alpspitze the previous day, 18th July. According to Captain Williams, whose evidence I accept, there was discussion between the four of them at the end of the morning’s climb (at or near the Herzl Terrace) about climbing the following day, and there were further discussions at the café prior to taking the cable car down, and in camp that night. There was enthusiasm on all sides for the objective of climbing the Alpspitze again the next day with the goal of reaching the summit if possible. Captain Williams and Lieutenant Champion had ascended to the summit via the Klettersteig a few days earlier. Lieutenant Colonel Robson had climbed the Alpspitze the previous year. He and Captain Williams had carried out reconnaissance of the mountain in June 2006 prior to this exercise. It was then that they had purchased the specialist climbing guidebook. They climbed three of the shorter routes on the lowest section of the mountain on 10th June as part of the reconnaissance. They did not, however, carry out any reconnaissance of the Herzl Terrace or the Adam-Platte route to the summit.

[75]Lieutenant Colonel Robson recollects that on the evening of 18th July, back at camp, he spoke to Warrant Officer Fergusson and to another instructor, Warrant Officer McGachy, offering them (in effect) the opportunity of leading the following day’s expedition in place of himself and Captain Williams. Warrant Officer MacGachy also gave evidence of such a conversation, although his witness statement gave the impression that it was proposed that he and Warrant Officer Fergusson would be replacing the claimant and Lieutenant Champion rather than taking the role of leaders of the expedition. The former would have made little sense because there were only five instructors in total, and if four of them were to take part in the expedition on the Alpspitze next day, only one instructor would be left to provide all the climbing training for the personnel on the course.

[76]This conversation only became an issue in the case because the claimant is adamant that in about October 2006, some three months after the accident, he had a conversation with Warrant Officer Fergusson in which the latter described the Alpspitze as a “dirty mountain”, that is to say a mountain with a lot of loose rock. The claimant also recollected that in this conversation Warrant Officer Fergusson had told him that Lieutenant Colonel Robson had asked him and Warrant Officer MacGachy to join him on the climb, but they had declined.

[77]It is unnecessary for me to reach any conclusion on this somewhat puzzling episode. I have no doubt that the claimant is truthful in saying he recollects some mention by Warrant Officer Fergusson of “a dirty mountain”, because it was an expression he had not heard before. I reject, however, any suggestion that by declining to go on the climb next day Warrant Officer Fergusson or Warrant Officer MacGachy were expressing any lack of confidence in Lieutenant Colonel Robson. It may well be that Lieutenant Colonel Robson was simply wanting to ensure that these other two officers had the opportunity of participating in rather more adventurous climbing than their climbing hitherto, which had been confined to the climbing walls and the lower slopes.

Risk assessment

[78]Before setting off on the morning off 19th July to climb the mountain, Lieutenant Colonel Robson and Captain Williams carried out a risk assessment which, I am satisfied, was recorded in writing on the appropriate form. It is regrettable and unsatisfactory that, once again, the document itself cannot be found. However, Lieutenant Colonel Robson has done his best to reproduce the scores in the risk assessment that would have been carried out. Mr Cooksley, on behalf of the claimant, made it clear that he does not challenge the fact that such a risk assessment was carried out and recorded. He simply comments, quite properly, that it would have been comforting to see the actual document.

[79]Both parties’experts agree that the risk assessment process and documentation was entirely appropriate. In accordance with a comprehensive code accompanying the risk assessment form, the leaders were required to assign a score to each of six separate topics: instructor ability, environmental conditions, local weather, instructor familiarity, student ability and activity choice. Lieutenant Colonel Robson has reconstructed the risk assessment by indicating the six individual scores he would have given. This produced a total score of 14, putting it at the bottom of the medium risk factor band (14-19).

[80]As was pointed out during closing submissions, an increase of one or two points here or there would not have affected the overall risk factor such as to put it in the higher category, 20-39. In my judgment there would only have been a significant increase if there had been an earlier appreciation of the potential hazard of rock falls in crossing the Herzl Terrace. This could have resulted in a higher score in the section headed “activity choice”. Here the differential in points is far more marked. Lieutenant Colonel Robson’s assessment was “complex”, carrying five points. Arguably it could have been scored as “quite difficult”, attracting ten points. The description of that category includes:

“Detrimental changes in weather, increased environmental objectivity and psychological factors affecting students are some potential problems.”

Arguably this was apposite. But even still, an increase of five points would only have taken the overall risk factor to 19, albeit now at the very top of the bracket.

[81]Mr Cooksley’s real criticism of the risk assessment carried out on the morning of the climb is that it is simply failed to address at all the route which, in the event, was taken across the Herzl Terrace. A proper risk assessment, he submits, would have involved a more precise estimation of the time for each section of the ascent. This in itself, he submits, would have shown that the proposed day’s climbing was over ambitious and unrealistic.

[82]That submission would have greater force if this had been the only risk assessment of the day. But as both experts confirmed, the essence of effective risk assessment is that it is a dynamic process which must be subject to continuous review. Risk assessment is a process not a document. The question is whether, despite any shortcomings in the initial written risk assessment on the morning of the climb, there was a proper re-assessment of risk at every stage as the climb progressed.

The ascent of the lower mountain on 19th July

[83]In order to give themselves more time in which to complete an ascent on 19th July than the previous day, they ascended by cable car to the start of the lower mountain climbing routes. This time they took a different route from the previous day. They ascended by two almost parallel routes known as BW1 and BW2 (BW standing for Berg Wacht, or mountain rescue). Each of the routes had a maximum grading for any section of four, the same as the previous day’s route up the KG-Ausbildungsweg. Each route consisted of five pitches. Again, the claimant and Lieutenant Champion accomplished the climb without difficulty and they arrived at the top of the route, on the edge of the Herzl Terrace, significantly earlier than the previous day, probably around 12.30pm.

[84]The next and (as it turned out) crucial decision was which route to take to the summit, and how and where to cross the Herzl Terrace. The route they had climbed the previous day, KG-Ausbildungsweg, had brought them up onto the edge of the Herzl Terrace some distance further to the left than routes BW1 and BW2. As already explained, the continuation of KG-Ausbildungsweg would have taken them directly across the Herzl Terrace on a route shown in the guidebook. This would then have led them to the summit. However, as Captain Williams explained in her witness statement, the final section of that route to the summit was more difficult than the Adam-Platte route, involving three pitches graded at 3 plus and one at 4 minus, whereas the Adam-Platte had one pitch graded at 4 minus and the remainder graded at 3 or less.

[85]It was not suggested, as part of the claimant’s case, that the decision to ascend to the summit by the Adam-Platte route rather than KG-Ausbildungsweg was unreasonable. Plainly it was not. But it was suggested on behalf of the claimant that if they were to cross the Herzl Terrace at all it would have been better to do so by means of the route shown in the guidebook as the continuation of KG-Ausbildungsweg. Having reached the far side of the terrace they would then have been able to turn left and walk along the upper edge of the terrace to the start of the Adam-Platte. In fact, having not reconnoitred that part of the mountain, it seems that Lieutenant Colonel Robson and Captain Williams were unaware that there was such an option.

[86]As to whether there would have been less risk of rock falls had they chosen to cross the Herzl Terrace in this way, via the KG-Ausbildungsweg, there is simply no evidence. It may be that if it was a route in more frequent use by reason of being shown in the guidebook, it was more likely to be clearer of loose rock than the undisturbed parts of the Herzl Terrace, such as the location of the accident. But in the absence of any evidence about that other route, this is no more than speculation.

[87]The evidence of Lieutenant Colonel Robson, which I accept, was that they walked from the top of route BW1 to their left towards the Herzl Terrace, skirting the lower edge of the terrace. At a point quite close to the Herzl itself they stopped for lunch. It is clear on the evidence that there was some further discussion at this point about the available time to complete the climb to the summit. For example, Lieutenant Champion recalled that there had been a breakdown of the hours required to complete the remaining stages of the day’s climb, including the descent. I am satisfied on the evidence as a whole that up to this point there was no concern expressed about crumbling rock or falling rock. That came only after they had begun to cross the Herzl Terrace. I am also satisfied that it was a perfectly reasonable decision to walk the route they did to the spot where they stopped for lunch, which was necessarily taking them in the opposite direction from the Klettersteig at the right hand side of the mountain.

[88]At first sight it may seem surprising that the guidebook shows no other route across the Herzl Terrace to the start of the Adam-Platte. Mr Davis gave evidence that, from his conversations with the Bavarian guide, Michael Gebhardt, who accompanied him when he visited the mountain in July 2010, it was rare that climbers would complete a route on the lower mountain and the Adam-Platte route to the summit in a single expedition. The implication of this is that the more normal course would be to ascend the Klettersteig to a point above the Herzl Terrace and then take the footpath to the left which brings one to the start of the Adam-Platte.

[89]However, the reason no route across the Herzl Terrace is shown in the guidebook may well simply be that it is not considered sufficiently difficult a route to require specific mention. As already explained, the continuation route of KG-Ausbildungsweg across the Herzl Terrace is graded at only 1-2. Moreover, Mr Gebhardt describes the area of the Herzl Terrace which they traversed as a “very easy climbing area”, albeit with a lot of loose rock.

[90]Even though no other route across the Herzl Terrace is shown in the guidebook, there is the clearest evidence that a route is marked out on the ground by red paint marks on rocks. In his witness statement Mr Gebhardt describes it in these terms (correcting spellings):

“.. There is a way (traverse) from Herzl Terrace to the beginning of the Adam Platte route. This route is as well pointed (sic) with red dots and the accident was on that route. The Alpine guide book does not show that traverse. Because it is a very easy climbing area but with lots of loose … rocks. The traverse makes sense if you want to cross from the base climbs to the Adam Platte route.”

[91]Mr Cooksley submits that this cannot be taken as an endorsement of the suitability of the route for novice climbers. However, he accepts that it provides confirmation that the party was at least proceeding along an established route. I accept the evidence of Lieutenant Colonel Robson and Captain Williams that the route they took was following the red paint marks.

[92]On the evidence as a whole I find that it was only when they resumed climbing after lunch that they first encountered loose rock sufficient to cause any concern. I also find on the evidence as a whole that there was then some discussion about the potential hazard of loose rock, coupled with some further discussion about the time available for the rest of the climb. The claimant’s own recollection of the discussions is understandably vague, given his severe head injury and the memory loss it has caused. Lieutenant Champion recalls that there was some discussion as to whether the climb should be aborted, but she cannot recall if that was because of the rock or the limited time. Importantly, she describes a discussion taking place at a time when an escape could still have been undertaken on foot. This, in my judgment, is significant evidence of a proper continuous process of risk assessment. In the witness statement she made to the defendant, Lieutenant Champion says that following the discussion they decided as a group to carry on, hoping that the problem of loose rock would get better, which it did. In her oral evidence she said they had seen rocks rolling on the comparatively gentle slope. It seemed to get better as the route got steeper close to the scene of the accident. She also said in her oral evidence that the leaders said it was not planned or known that the rock would be as crumbly as this, and they asked whether she and the claimant were happy to carry on. They said they were.

[93]Lieutenant Colonel Robson did not specifically recall any conversation about crumbling rock but was sure it would have been discussed. He and Captain Williams would have warned the novices to take care where they were putting their feet. Captain Williams also had no specific recollection of a conversation about crumbling rock but thought it would have been discussed. She thinks it would have been the area close to the Herzl snow field itself which was the most crumbly.

[94]I attach very little weight to any suggestion that the agreement of the claimant and Lieutenant Champion to carry on has any significant bearing upon the reasonableness of the leaders’ decision to do so. They were novices, and despite the relative informality of the expedition, very junior officers. There would have been a natural reluctance not to “let the side down”. It was the responsibility of the leaders to form their own judgement, based upon their experience and their assessment of risk.

[95]In my judgment it was reasonable for Lieutenant Colonel Robson and Captain Williams to take the decision to carry on despite the loose rock, provided they had that danger in mind and took all reasonable steps to minimise any risk arising from rock fall. The only realistic alternative was to abort the climb altogether. That would have been a disappointment to everyone and this was, after all, designed to be challenging and adventurous training. Theoretically the option of bypassing the Herzl Terrace altogether by taking the Klettersteig and walking to the foot of the Adam- Platte was available. It was, however, not one of which they were aware. Nor would it have been a reasonable alternative once they had got this far. It would have involved a lengthy trek retracing their steps to the top of routes BW1 and BW2 which they had completed in the morning, then a further trek to the right hand side of the mountain (as one looks at the photographs and maps of the north face). Time would have been against them. Equally important, as Mr Barton explained, it would have involved a significant loss of height which is always de-motivating.

[96]Mr Cooksley submits that in reality they were lost by the time the accident occurred. He relies on the fact that Lieutenant Colonel Robson believed, up to and until shortly before the trial, that they had already begun to ascend the Adam-Platte when the accident occurred, hence Mr Davis’ mistaken assumption that it was the Adam-Platte he should be looking at when he visited the mountain in July 2010. Mr Cooksley submits that the very fact that they did not know where they were demonstrates that there had been a negligent lack of proper planning and risk assessment.

[97]I reject that submission. Although they may not have known precisely where they were, because the guidebook was of no help at this point, they were following the red paint marks and were on a known and well established route. Had the accident not occurred, when in due course they arrived at the foot of the Adam-Platte, marked by a red arrow on a rock, they would have realised their error and would have had the opportunity to take stock once more whether they had time to complete the ascent. If appropriate there would then have been a further opportunity, in the light of a revised risk assessment, to abort the climb and leave the mountain safely by the walking route to the Klettersteig.

[98]In determining the reasonableness of the decision to continue, it is also important to bear in mind that this was essentially a matter of judgement in the light of the prevailing conditions and terrain, and neither Mr Davis nor Mr Barton has seen that terrain. It was not terrain of a character so different from anything the leaders had encountered before in their extensive experience as to cause them particular concern. It merely provided them with one more challenge. As Mr Barton put it in his oral evidence, there is a degree of uncertainty inherent in the process of risk assessment. It is in managing the uncertainty that the challenge lies and this is of particular importance for training in the armed services.

Parallel climbing

[99]I find on the evidence as a whole that, after the discussion as to whether they should continue, the whole party had completed one pitch and the leaders had completed the second pitch when the accident occurred. For this section of the route they were climbing in parallel. Both expert witnesses agree that this is unusual, and in some circumstances it would be thoroughly undesirable. However, the criticisms made by Mr Davis initially, and concurred in substantially by Mr Barton, were on the assumption (which proved incorrect) that this parallel climbing was taking place on the Adam-Platte itself. It is common ground that such a technique would have been wholly inappropriate there. By contrast, the terrain on the Herzl Terrace permitted climbing side by side.

[100]Captain Williams said in her oral evidence that it was an efficient way to proceed, by which she meant (it is to be inferred) that it saved time. Lieutenant Colonel Robson insisted, under cross-examination, that it would not have saved time overall. Any time gained by parallel climbing across the Herzl Terrace would be lost when they arrived at the Adam-Platte and had to wait to climb in sequence there. I have no doubt that the principal reason for parallel climbing was indeed the saving of time. There was, however, nothing wrong with that, as Mr Barton confirmed, provided it did not give rise to any additional unreasonable risk.

[101]Mr Cooksley submits that parallel climbing gave rise to extra risk for two main reasons. First, because both teams could not be following the exact route of the red paint marks there would necessarily be some traversing of ground which was less regularly covered, with the additional risk of disturbing and dislodging loose rock. Secondly, it meant that when the seconds were waiting below for the leaders to complete the pitch, they were exposed to the risk of rock being disturbed by two climbers above rather than by one.

[102]On careful consideration I am satisfied that there is no substance in these points, particularly in the light of the evidence as to how the accident happened. There is nothing in the evidence to indicate that the process of the climbing in parallel in fact caused or contributed to the accident.

Climbing to the full 50 metres of the rope

[103]The final criticism which is said to amount to a breach of duty was the decision to climb to the full 50 metre extent of the rope. The suggestion is that this, either in itself or coupled with parallel climbing, increased the risk of rock fall. Once again, there is no evidence to support the suggestion that climbing to the full extent of the rope did in fact cause or contribute to the accident. Indeed, if anything the evidence is to the contrary because it seems that the rock fall was triggered only a very short distance below the stance which Captain Williams had reached immediately before the accident occurred.

[104]The potential hazard from climbing with too long a rope, it is said, is the risk that in swinging free the rope may brush across the surface of the incline and thereby dislodge loose rock. This was not, however, the picture which emerged on the evidence. Lieutenant Colonel Robson had successfully completed the final pitch before the accident, and had tied himself in. His rope was not swinging free below him. He had put in three or four runners, i.e. bolts, through which the rope was then guided. This substantially reduced the risk complained of. Similarly, I accept the evidence of Captain Williams that she had put in bolts. She too had successfully completed the last pitch and was stationary. I accept her evidence that she was alert to the possibility of rock fall and lifted her rope so it did not drag or sweep any rock. She was not holding the rope or flicking it around.

[105]In cross-examination Mr Davis, the claimant’s expert, conceded very properly that the decision whether or not to use the full length of the rope must be a matter of judgement at the time, depending on all the circumstances including the terrain. Although he suggested that climbing to a length of perhaps 20 metres of rope rather than 50 metres would have been preferable, he agreed there was no hard evidence to support such a proposition in the light of his previous concession. Mr Barton, the defendant’s expert, said that his starting point would be that there is nothing wrong in principle in climbing to the full extent of the rope. It is the most effective use of time, and time is important. If the terrain is particularly hazardous, for example with evidence of rock falls, he might be persuaded to shorten the rope. However, it was part of a dynamic risk assessment process. If you use shorter pitches, you pay a price in time.

[106]The second and potentially more serious disadvantage of climbing to the full extent of the rope was that it meant that the leaders were out of view of the seconds. There is no evidence, however, that had a shorter pitch been chosen this would necessarily have avoided the problem, because the face of the mountain at this point was convex. Both experts agreed that ideally, particularly with inexperienced seconds, it is desirable that the leaders are always in view. However, Mr Barton qualified this by saying that once the seconds had gained confidence, as they clearly had in this case, even this precaution was not of critical importance. I accept that evidence.

The accident

[107]The claimant was struck on the head by a rock which must have been of substantial size. Understandably he recalls very little of the precise circumstances. He heard a shout from the leaders above. He and Lieutenant Champion followed the safety procedure they had been taught and pressed themselves as close as they could to the rock face. She recalls that to start with there were small rocks falling, only the size of pebbles. This went on for a few seconds. Then she heard a massive thud and the sound of the claimant groaning.

[108]The evidence of Captain Williams, which I accept, was that she was stationary on the same stance as Lieutenant Colonel Robson, beginning to make herself safe, when she heard movement behind her and turned to see rocks starting to roll down the slope. In her oral evidence she said that these rocks were only small and were moving from a position only half a metre or so below her. I accept this evidence. It is likely, I find, that it was this small rock fall which precipitated the fall of the larger rock which struck the claimant on the head. It follows that whatever it was that triggered the rock fall very close indeed to Captain Williams cannot have been caused either by parallel climbing or by excessive rope length.

[109]I accept Captain Williams’ evidence that she was less than a metre away from Lieutenant Colonel Robson when she noticed the stones beginning fall. I accept her evidence that she was being as careful as she could. The hazard always remains, however, that a rock fall may be precipitated by any movement of a climber, or even naturally.

[110]It is important to set out here the concessions properly made by Mr Davis in cross-examination. He agreed that however careful a climber may be, the risk of precipitating a rock fall cannot be eliminated. A rock fall such as this does not in itself indicate a failure to take reasonable care on the part of the person who caused the rock fall. Even taking all reasonable care, a climber may cause rocks to fall. It can happen to anyone. The important thing is to take all reasonable steps to minimise the risk. You seek to put hands and feet in places where you will not disturb the rock. You make sure the people below you know how to react and are wearing protective helmets.

[111]Mr Barton was less convinced, having heard all the evidence, that it was Captain Williams’ rope, or indeed any rope, that triggered the rock fall. He thought it could have been a foot of one of the leaders rather than a rope. He was particularly struck by the evidence that Captain Williams was stationary and not pulling on a rope at the time the rock fell. In fact she had always said (in her witness statement) that she was stationary, but the picture which emerged in her oral evidence was undoubtedly clearer. Mr Barton’s final position was that it was by no means clear what was the mechanism of the rock release.

[112]All this leads me to conclude that it is impossible to say with any certainty what triggered the rock fall. It may have been the chance pressure of a foot which dislodged some small stones. It may have been the chance pressure of the short stretch of the rope which dislodged some small stones. It may even have been entirely coincidental that some rocks began to move at this point, although on the balance of probabilities it is more likely that it was some movement on the part of the lead climbers which caused it.

[113]Whatever the cause of the rock fall, however, I am quite satisfied that there was no fault (or lack of reasonable care) on the part of Lieutenant Robson or Captain Williams in the manner of their climbing the final pitch and establishing themselves on the final stance which caused or contributed to the rock fall and thus to the tragic accident to the claimant.

[114]The claimant and Lieutenant Champion must also be exonerated of all blame. They both reacted to the rock fall precisely as they had been instructed. The ledge on which they were standing was as good and protected a stance as could have been found. They were both fully alert and wearing proper and well maintained helmets. The rock which struck the claimant was never seen by him, or by Lieutenant Champion. It could just as easily have missed him, as the other smaller rocks did. It was only by cruel mischance that he was struck and injured so seriously.

[115]Although not directly relevant to the issues I have to decide, it is appropriate to pay tribute to the professionalism, calmness and presence of mind with which all three of the claimant’s colleagues responded to the accident. Lieutenant Champion immediately recognised the severity of the claimant’s head injury and administered first aid which may well have avoided further complications arising from his fitting. Through the prompt action of the leaders the emergency services were immediately contacted, and within 15 minutes or so a helicopter arrived at the scene and winched the claimant to safety. Whilst these post-accident events cannot have any direct bearing upon the issue of liability, they demonstrate that this was a well managed expedition, extremely well led.

The aftermath

[116]Against this background it is all the more surprising and regrettable that the investigation which followed did not (apparently) preserve some important records. I have already alluded to this. An accident report was submitted the following day, 20th July 2006. Unfortunately the “attached sheet” describing the circumstances of the accident cannot be found. A formal investigation was carried out by the Army’s Land Accident and Prevention Investigation Team, and a report was submitted dated 24th August 2006. It is unclear whether any formal written statements were obtained in the course of the investigation, but it is reasonably clear that all three of the claimant’s colleagues were interviewed and gave their accounts. Substantially they accord with the evidence presented at the trial.

[117]The conclusion of the report was that the claimant and Lieutenant Champion were suitably equipped and led by appropriately qualified and suitable leaders/instructors. The route being climbed was not beyond their ability. The four elements of the Joint Services Safe System of Training were accordingly met: safe people, safe equipment, safe place and safe practice. The investigating officer’s conclusion was that the rock fall that hit the claimant and caused his injuries was truly an accident.

[118]The investigation report commented upon the damage to Lieutenant Colonel Robson’s rope, and a photograph accompanied the investigation report. It seems that the rope had been almost severed. The inference is that it must have been caused by a rock. Whether it was caused in this rock fall must be a matter of speculation. Even if it was, it is difficult to see how it has any bearing upon the issue I have to decide. Mr Cooksley submitted that the fact that his rope was severed shows that he must have been in the same direct line of the rockfall. I cannot accept this, and even if it were a proper inference, it does not advance the claimant’s case in view of my other findings.

[119]For the sake of completeness, I should also mention that Lieutenant Colonel Robson and Captain Williams each provided a detailed explanation of the circumstances of the accident in response to a request, on the claimant’s behalf, by a firm of claims assessors in November 2007. Although there are some minor discrepancies between these accounts and the more detailed accounts given in their witness statements and oral evidence, I do not regard these as significant. Nor has it been suggested on the claimant’s behalf that such differences undermine the truthfulness or reliability of the accounts given by Lieutenant Colonel Robson or Captain Williams.

[120]Conclusions (1). For the reasons I have explained in such detail, I am not persuaded that there was any breach of duty on the part of the defendant towards the claimant. (2). I am satisfied that Lieutenant Colonel Robson and Captain Williams held the appropriate qualifications to be leading the climb on this mountain, including the Herzl Terrace. Equally important, they had very extensive practical experience to augment their formal qualifications. (3). It was not unreasonable to make an attempt on the summit by the Adam-Platte route. It was not unreasonable to take the route they did across the Herzl Terrace to the start of the Adam-Platte route, particularly as it was an established route, albeit not a route shown in the guide book. (4). I am satisfied that at all material stages there was proper appraisal and assessment of risk, and that this was kept under continuous review. (5). I am satisfied that although the day’s climbing was ambitious and challenging, it was not beyond the competence of the claimant and Lieutenant Champion who were thoroughly enjoying the experience. But for the claimant’s accident they would both have benefited from it greatly. (6). I am satisfied that the manner of the final climb on the Herzl Terrace was appropriate, despite the presence of loose rock. Neither parallel climbing nor climbing to the full extent of the rope was inappropriate. Nor did either cause or contribute to the accident. (7). I am satisfied that there was no negligence on the part of Lieutenant Colonel Robson or Captain Williams in the way in which they climbed the final pitch.

[121]In my judgment the high water mark of the claimant’s case, as the evidence emerged, was the suggestion that there had been inadequate assessment beforehand of the risk of crossing the Herzl Terrace where the risk of rock fall was greater than on the steeper slopes of the mountain. Even if proper reconnaissance did not require the leaders to have climbed themselves any of the routes across the Herzl Terrace , it is said that they should at the very least have familiarised themselves with the different nature of the terrain on the Herzl Terrace by observing it at close quarters, or by seeking advice locally, i.e. from a qualified mountain guide such as Mr Gebhardt. The claimant relies upon the evidence of Mr Barton who said that he would have wanted to take a good look at the terrain before deciding to cross it.

[122]I have weighed up all these points in reaching the conclusions already indicated. I am not persuaded that a fuller reconnaissance of the Herzl Terrace would or should have led to any different course of action on the day. It was not a difficult climb although it presented different challenges. There was not such an obviously more serious risk of injury as to make it necessary for an alternative route to be chosen. After all, this was adventurous training. In particular, bypassing the Herzl Terrace by way of the Klettersteig was not an option which Lieutenant Colonel Robson and Captain Williams were negligent in rejecting or failing to consider. Nor was the length of the proposed climbing day necessarily excessive. It became clear as the evidence emerged that had the final stage of the ascent (via the Adam-Platte route) been too much for the claimant and Lieutenant Champion, there was ample opportunity safely to call it a day.

[123]Accordingly, whilst I have the deepest sympathy for the claimant, who impressed me greatly in his evidence and whose forced retirement from the Army is a great loss to the country he has served so well, I conclude that this tragic accident was not caused by any negligence on the part of the defendant, and the claim fails.