When the law understands there is a difference between the natural environment and the built environment
What happened?
An experienced male skier, arrived at the Nevis Range facility in March 2002. Initially visibility was good, but it deteriorated after he arrived on the summit. He planned to ski down a different run and began moving slowly across the summit area, following tracks left by previous skiers. He did not find the expected signs and continued despite the poor visibility. Within a couple of minutes, he felt himself fall and began sliding down the snow. He had fallen through or over a cornice.
The skier suffered significant injuries in the fall, including a four-part proximal fracture to the left humerus and a three-part proximal fracture to the right humerus.
His claim was based on Nevis Range Development Company PLC failing to take reasonable care to ensure his safety, by not placing warning signs before the entrance to the run, and along the ridge to indicate the proximity of the edge, especially in poor visibility conditions. He claimed this omission constituted a danger that led to his accident and subsequent injuries.
Nevis Range agreed that it would be feasible to place signs of some sort along the ridge. They stated, however, that the area was only used by experienced skiers, and their literature made it clear that there was a steep slope. A white board at the summit provided information about the conditions on the summit and edge. Also, there had never before or since been an accident of the type complained about.
Legal Outcome
The judge dismissed the case, in 2006, and concluded: “It was also correct, in my view, to bear in mind the natural beauty and attractiveness of the wilderness site… to place warning signs at regular intervals along the summit ridge would have a significant impact upon the natural beauty and character of the landscape. To have taken this step would have constituted a disproportionate response to the risk said to exist.”
What can we learn from what happened?
The HSE’s view on the need to manage natural features is: When people enjoy the countryside or other open spaces they owe a duty to themselves and their dependents to take proper care. Save in special circumstances, eg managed landscapes such as parks, it is not desirable that access be restricted or that other measures be taken that diminishes the amenity from fear that an accident may result in prosecution.
Accidents, and subsequent legal action taken, that arise from outdoor activities that rely more heavily on the natural environment than the built environment are always interesting. Duty of care never entirely goes away, but can be tempered by an individual’s acceptance that they are taking a risk (in this case he was an experienced skier), and the need to preserve the natural environment as it was intended and as others can enjoy.
The judge’s comments and the HSE view reflect this very nicely.
Source of Information
Bridget Leathley – from her ‘The Safer Choice’ website