Coaching, instructing and the law

Posted by Ed Douglas on 28/10/2013

The tragic death of 12-year-old Italian prodigy Tito Traversa made headlines around the world. The cause of the accident was the failure of incorrectly assembled quickdraws during a climbing trip to Orpierre in France, prompting the Italian prosecutor to begin investigating five different suspects. As Tito’s family mourn their loss, the circumstances of his death have prompted a wider debate about where responsibility for risk lies, as Ed Douglas reports.

Even in an era of incredible young talent, Tito Traversa was exceptional. He’d climbed 8a aged eight, his first 8b at nine, and the 8b+ Sarsifal in Tetto di Sarre at ten. His teachers at school in his hometown of Ivrea asked him to bring his competition trophies to show his classmates, and his achievements impressed the likes of Adam Ondra, no slouch himself as a youngster. So news of his death on 2 July was met understandably with stunned incomprehension. How could this happen?

Very quickly it emerged that some of the quickdraws he’d clipped on a comparatively straightforward climb at Orpierre had failed. Instead of both karabiners being clipped through the sling, someone had clipped instead through the rubber ring used ordinarily to stop karabiners from spinning.

When Tito’s weight came on the rope, these rubber rings failed and he hit the ground, sustaining a massive head injury. Kept in an induced coma in a Grenoble hospital, after three days his life support was switched off. In a heart-breaking interview published in La Repubblica, his father said that he had taken some comfort from the four young lives Tito’s transplanted organs had saved.

The Italian legal system is very different to that of the UK, and charges of manslaughter have different legal definitions. There are differences too in the age at which children become legally capable; even though Tito was an experienced climber, that has no relevance in judging his competency to make his own judgements.

Rather than the UK model, where police or HSE investigate a possible crime and then the CPS or HSE decide whether a case should be prosecuted, in Italy a prosecutor will declare who are persons of interest and then investigate.

Five different companies and individuals are being investigated: the company that made the rubber rings; the shop where they were sold, without instructions; Bside, the climbing centre in Turin that organised the trip to Orpierre and two instructors working for Bside. It’s possible that one, some or none of them will face a criminal prosecution.

If the legal systems are different, and the investigation into what happened at Orpierre continues, the circumstances of Tito’s death have chilling implications for instructors and coaches working in the UK. Had the same accident happened in Britain, and not France, then, according to barrister and climber Rupert Davies, there would be the possibility of a criminal prosecution.

“A number of parties,” Davies says, “are potentially liable: manufacturer, distributor, retailer and instructors. I’d be very surprised if the product wasn’t physically acceptable, but there must be a question mark whether the product was properly assembled or had proper instructions. Were the quickdraws bought assembled like this, or were they bought separately as two krabs, a sling and the retaining rings – and if there was assembly to be done, were there instructions? A business must ensure, so far as is reasonably practicable, that people are not exposed to safety risks. The more complex a safety product is to assemble the greater the requirement to provide proper instructions."

The question of a climber’s experience in judging fault is also complex. In criminal law, “if you’re liable you’re liable,” Davies says. “Just because someone else might have spotted the mistake doesn’t change that.” In civil law liability could be split in the case of an adult, since there is a general duty on a climber to check their own equipment. But, Davies adds, if you are inexperienced and hire an instructor to go climbing, you could as a claimant in a civil action be excused checking your equipment, especially if you’re a child.

The problem, Davies says, comes with coaching. “There’s no tight definition of the difference between coaching and instructing,” he says. “It’s a grey area that would depend a lot on the court’s interpretation, for example to what extent someone has been taken on to provide sport or movement advice, or else assuming some role with respect to safety.”

Jon Garside, training officer for the BMC is sceptical such a grey area exists. “I think some people have obfuscated things for their own convenience, saying they’re paying me so I can help them with performance, and my job is nothing to do with safety. I don’t buy that. I remember seeing a coach without qualifications at Millstone, above their client who was climbing a crack. The belayer wasn’t wearing a helmet, and the coach could have knocked something off. I don’t subscribe to the idea that a climbing coach can simply cross off their responsibility to any notion of risk management.”

Rupert Davies argues that there might be circumstances where a court did decide that there is a difference between a coach and an instructor. “If I employed a coach on the basis that I’ve been climbing 20 years, mostly on my own, and I phone Tom Randall to come out to Raven Tor to tell me how to improve my stamina, and I had an incorrectly assembled quickdraw, I wouldn’t say he would be in breach of his duty of care if he failed to check my quickdraws, because that wasn’t the basis on which I employed him.”

It would, he says, be a very different situation with a younger or less experienced climber. “If I was a relatively junior climber and I hadn’t been climbing long and my coach said, I’ll take you outside climbing and while we there he handed over his quickdraws, there would be an expectation he’d be looking out for my safety.”

These fine definitions have yet to be tested in court, but Davies says climbers should bear in mind, certainly in civil actions, how high courts’ expectations are in terms of what novices should be told by instructors. He cites the case of loss adjustor Louise Pinchbeck, who broke her ankle in 2008 after jumping five feet from a bouldering wall. She sued on the basis that while her instruction at Craggy Island in Guildford had been good, she had not been given a proper briefing about the hazards of a bouldering wall. The court found that the wall was two-thirds responsible for the accident.

When it comes to children, the law in the UK is unequivocal. If you’re instructing or coaching climbing outside in a professional context with kids then that falls under the statutory terms of the Adventure Activities Licensing Authority.  You have to be covered by a licence or you’re breaking the law. Even if you don’t have an outdoor qualification to your name, you still need a licence. Some coaches, often sole-traders and often most usually working indoors where a license isn’t required, have found the easiest approach is to work in co-operation with an outdoor centre that has an AALA license. But they aren’t going to risk their reputation by working with someone who doesn’t work to the highest safety standards.

In recent years there have been many examples of incredible climbing performances from young children. It’s easy to forget, in the intense focus required to push grades, that this athletic excellence is taking place in a potentially lethal environment. "It’s not what you call yourself, it’s what you do. You should follow good practice, which is not hard to do.” Jon Garside says. “The court isn’t going to look at what qualification you may or may not have, they’re going to look at what you did or did not do.”

 


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1) Anonymous User
29/10/2013
This is really interesting - does the following ONLY apply when cash is being paid? For example what about the hundreds of volunteer instructors and coaches (ie guides, scouts etc etc) ... if so you need to edit the article to make it plain or start a massive scare round loads or voluntary organisations... as the BMC you have to be very sure and careful...

"When it comes to children, the law in the UK is unequivocal. If you’re instructing or coaching outside with kids then that falls under the statutory terms of the Adventure Activities Licensing Authority. You have to be covered by a licence or you’re breaking the law. Even if you don’t have an outdoor qualification to your name, you still need a licence.

2) Anonymous
29/10/2013
This comment broke the house rules and has been removed
3) Anonymous User
29/10/2013
I believe there has to be a difference between "coaching" and "instructing" and that this has been recognised by the BMC and MT in the formation of the Coaching Award which does not require coaches to be climbers at all let alone instructors.
If somebody employs me to coach them then I must be allowed to do that without the burden of their personal safety being passed on to me. That is not to say that if I noticed something dangerous I wouldn't flag it up and it's also not to say that I would wander around on top of a crag with un-helmeted climbers (my clients or otherwise) beneath me.
There is a duty on the part of the client to take responsibility for themselves and a duty on my part to call off a session if I don't feel comfortable with the competency of the client.
4) Jon Garside (staff comment)
29/10/2013
The article has been amended to make clear that regarding licensing, we are talking about people working in a professional context. More information about licensing is available at: http://www.hse.gov.uk/aala/about-activities-licensing.htm
5) Anonymous User
29/10/2013
Some interesting parallels with the horrendous accident in Canada in 2003. Seven high-school students lost their lives in an avalanche while with their school. They were in the same valley where I first started ski touring as a high-school student. I'll never forget the phone call my then partner received as his staff were called in to help with the rescue/recovery. It was truly inconceivable to all of us. But some positive developments have emerged, including the requirement to have a licensed mountain guide along with any group of minors in Canada. That requirement alone would have made it an unaffordable trip in my own case, but waiting a few years until I could take the risk on myself wouldn't have been the worst thing. Don't get me wrong: I'm thankful for the experience, and for my teachers for making it happen, but an accident like this one made us all re-evaluate risk in terms of assuming it on behalf of a minor.
http://calgary.ctvnews.ca/strathcona-tweedsmuir-remembers-those-lost-in-2003-avalanche-1.1138230
6) Anonymous User
29/10/2013
You don't need an AALA licence if a parent is present, Jon.
7) Anonymous User
30/10/2013
I have been a fully qualified freelance climbing instructor for 15 years and consider myself a good and safe operator. I have seen my fair share of shoddy practice and here is no excuse for it. When I go climbing with friends we all make a point of double checking each others equipment after checking our own. It only takes a couple of minutes and anyone who isn't happy to have their kit checked doesn't come again. There is no room for egos in climbing or any other potentially dangerous environment. Whatever "role" or name you are going under you have a moral responsibility to support a safe environment on the crag.
8) Jon Garside (staff comment)
30/10/2013
Regarding licensing, if people are going to teach children outdoor activities on a professional basis, then they would simply be wise to ensure that they are aware of the regulations. There are exemptions to being required to hold a license, such as parents / guardians being present and provision by voluntary / educational establishments.

I would suggest that people who think they may need to hold a licence contact the licensing authority: http://www.hse.gov.uk/aala/about-activities-licensing.htm

Regarding coaching vs instructing vs teaching vs leading vs guiding etc, then climbing is not alone in there being confusion about these distinctions. What most sports recognise is that someone's actions best describe what they do, not their title. Mountain Guides, for example, will sometimes coach their clients to ensure efficient movement higher up the mountain, sometimes they will guide them, and sometimes instruct them, 'Stay there. Don't move!" However, we live in a world of titles, and so there is an assumption that an instructor, guide, leader or coach MUST interact with their clients in very different ways. In my experience, this is not the case. Rather, each professional or volunteer behaves in a way appropriate to the situation.

Both the BMC and Mountain Training recognise the four routes to competence, and that formal qualifications are just one of those routes. https://www.thebmc.co.uk/qualifications-explained

I feel that all professionals would be wise to be mindful of good practice. Should they ever find themselves in the unfortunate position of being questioned about their actions, they should at least feel confident about what they did, or did not, do. In my many years of coaching, instructing and leading, I never felt that following good practice had a negative impact upon the activities undertaken. In fact, I would say the impact is a positive one.
9) Anonymous User
30/10/2013
I appreciate that there may be a fine line between 'coaching' and 'instructing' in the UK legal system. As the case in point will be judged by an Italian court, it might be helpful to note that no such difference exists under Italian law.
10) Anonymous User
30/10/2013
“The court isn’t going to look at what qualification you may or may not have, they’re going to look at what you did or did not do.”

This sums it up. It's about explaining why you did or did not do something. If you did not check your clients quickdraws because you knew they had 20 years of climbing experience and had employed you for coaching, that would be fine. If it was someone moving from indoor bouldering to outdoor leading you would be duty bound to go through safety procedures with them.
21/12/2013
A tragic accident, my heart goes out to those affected.
12) Anonymous User
11/01/2014
I think Jon's comment about 'seeing a coach without qualifications' is very unbalanced and unneeded. I think it is his attempt at covertly promoting the organisations courses.
How did he know that the coach was without qualification?
I have seen many occasions of bad/poor practice from so called 'qualified coaches' (according to the BMC)
I was once at a quarry and I saw a qualified climbing instructor I whom I know, teaching a group. The instructor had not protected the rope, I spotted it and checked it and saw it was worn through the sheeth and part way through the internal rope. There was a child climbing on the rope at the time. According to the BMC I am an unqualified instructor yet I have prevented potentially fatal incidents happening from so called BMC qualified instructors.
I think safety is important but question what is qualification? I also think AALA is just another tax.
13) Jon Garside (staff comment)
13/01/2014
Thanks for your comment.

As mentioned in my previous post, both the BMC and Mountain Training recognise the four routes to competence, and that formal qualifications are just one of those routes. https://www.thebmc.co.uk/qualifications-explained. There is no 'covert' promotion of Mountain Training awards going on here.

I would suggest that the majority of sports do not describe qualifications in the way that we do, i.e. as simply one of a number of options to demonstrate competence. Most sports promote qualifications as the only way to demonstrate competence. As I mentioned in my previous post, I suggest that following good practice is the best path to follow.

Regarding licesning, Lord Young published his review of Health and Safety in 2010 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60905/402906_CommonSense_acc.pdf

One of Lord Young's recommendations on page 17 of his report, is to 'Abolish the Adventure Activities Licensing Authority and replace licensing with a code of practice.' Whilst this has not yet happened, the BMC and Mountain Training are both actively involved in discussions about licensing.
14) Anonymous User
24/01/2014
“The court isn’t going to look at what qualification you may or may not have, they’re going to look at what you did or did not do.”

I was involved in an inquest and subsequent court case around an outdoor activty (not climbing). The thrust of the argument from the prosection was competence. Experience counted, but the repeated question was "What formal qualification do you have to back up the experiences you say you have?" Unless you had a formal qualification to back up your experience the court would not accept you were competent. The case was successfully defended.
15) Anonymous User
08/07/2014
Hi there. I have read over these comments and can see both sides - very interesting, but surely the emphasis is on the appointed managers/leaders of these "training events" to complete risk assessments prior to allowing children to climb? Or am I missing the point?!

For example , the last few lines of the article (quoting Jon Garside) relate to how common sense and rational thought processes are engaged by the majority of courts in the UK when considering judgement on, let's say, provision of basic safeguarding measures.

I do pull at his comment on qualifications though - surely these are the basic first line of conformity checks when engaging with a group or organisation is to ensure they are qualified?

I mean, what would have to be put in place for a group of disabled climbers to travel 2000 miles by air and road to tend an event? Especially if they where minors? I bet the insurance application alone would be a nightmare...never mind the numerous risk assessments, method statements and medical aid cover you'd be legally required to have in place (and pre-notified to RosPa, HSE etc) before even attempting to fly under a 'corporate banner' eh?

Still, at least we have the BMC to deliver governance, eh?

Bet you don't allow this one to be published....

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