The following is not a formal legal opinion but is a summary of the BMC understanding with advice from the UIAA lawyer, of issues relating to liability at the time of writing.
Individuals in any sport face a risk of injury as part of the normal participation in that sport. However, if a person has been injured because of another person's negligence, and that negligence can be proved, he or she may seek financial compensation under civil law. To establish that there has been negligence three factors must exist : (i) a duty of care must be owed, (ii) there must be a breach of that duty of care,and (iii) actual damage must have resulted from that breach of duty of care.
In law, under the "neighbour test", a duty of care is owed to persons who are so closely and directly affected by an individual's acts that they ought reasonably to have had them in contemplation as being affected when directing their mind to the acts or omissions that are called into question. Anyone involved in climbing and mountaineering should not only recognise the danger of personal injury and death to themselves but also that their actions or inactions may affect other climbers and mountaineers and possibly others passing by or living nearby.
When considering the nature of a particular duty of care the following factors should be considered : (i) the age of the persons concerned (eg. with minors a duty is to take the care one would expect from reasonably prudent parents), (ii) the experience and expertise, or any other relevant characteristics, of the persons concerned (eg. greater care would be expected climbing with a beginner than with an expert), (iii) the dangers of the particular activity, (iv) the risks of the injury occurring, (v) the foreseeability of the particular accident occurring, and lastly (vi) the suitability of the equipment or premises.
A very clear duty of care exists between a qualified mountain guide or climbing instructor and those that they are professionally leading or teaching. Guides and instructors engaged in such work would normally have professional negligence or liability insurance. Amateur climbers should be aware of and accept the risks of participation ( see BMC participation statement ) and should also be aware that, where they are the nominal or actual leader of others, they may be held responsible in the event of an accident.
Where minors ( ie. those under 18 years of age ) are involved in club activities written parental consent for the young person to take part should be obtained (see 3 below). Adult members of the club who accept responsibility for minors should be aware that they have a special duty of care to act as reasonably prudent parents would.
Expert legal advice would be necessary to defend any liability claim, however, for information, the following defences are available in an action for negligence -(i) that the particular accident could not be foreseen, (ii) Volenti Non Fit Injuria (ie. a willing person cannot be injured in law), (iii) contributory negligence by the injured party, and (iv) a break in the chain of causation.
The Occupiers' Liability Act (1957) sets out the responsibilities of an owner or occupier to take care of the land so that visitors will be reasonably safe. This applies in particular, for example, to buildings, gates, roadways, etc. and any concealed dangers such as mineshafts or similar. However, the Act does not impose any obligation on an owner or occupier to a visitor who willingly accepts risks ( volenti non fit injuria ) on natural features such as cliffs, mountains, steep paths or slopes. The BMC and Country Landowners Association (CLA) have jointly published a leaflet with more information on occupiers' liability which is available from both the BMC and CLA. The Occupiers' Liability Act also applies to climbing walls where wall managers have a responsibility to ensure that individuals are not exposed to hidden dangers or traps. Further information on legal responsibilities and climbing walls is contained in the joint BMC and Sports Council Climbing Wall Manual.
The BMC offers the following advice to member clubs and individuals :
1. That participants in climbing and mountaineering are aware, or reminded, that these are activities with a danger of personal injury or death and that individuals should be aware of and accept these risks and be responsible for their own actions and involvement.
2. It is prudent for both individuals and clubs to have insurance against Third Party liability claims.
3. It is sensible for clubs to include a consent form with a participation statement in application forms for the club and this should be signed by parents or guardians in the case of minors.
BMC Participation Statement
"The BMC recognises that climbing and mountaineering are activities with a danger of personal injury or death. Participants in these activities should be aware of and accept these risks and be responsible for their own actions and involvement."
Summary of BMC Affiliated Club Liability Insurance Cover
The Policy reads : -
"The (Insurance) Company will provide Indemnity…….to pay damages in respect of claims arising out of the conduct of the Business made against the Insured…"
The "Insured" is the BMC Affiliated Club, and the "Business" means the normal activities of the club including ownership/occupation of a hut for Club purposes. So the policy covers affiliated clubs and the members for any claim made for any civil liability arising in connection with mountaineering or other club activities due to negligence.
The cover has no territorial limits and is not subject to an excess. The limit of indemnity in respect of any claim made during the period of insurance is £5,000,000 for any one event, including claims arising from breach of professional duty with the exception that in respect of goods sold or supplied - products liability claims - the limit of indemnity applies to an aggregate of all events during any one period of insurance.
The club and its committee are insured for any event or activity, social, recreational or sporting that they organise and participate in. This includes damage to others' property or injury to other persons, or loss due to goods supplied, errors and omissions, advice given or not given, cross liability member-to-member, trespass, libel, and slander. It also includes liability as property owner or occupier of a Club Hut used as accommodation.
The members of the club resident in the UK are insured for liability claims made by third parties (including other club members) for any club activity and as an individual for climbing, mountaineering and abseiling and all associated activities such as mountain walking and scrambling. Additionally activities such as ski mountaineering, occasional mountain biking and caving, are covered provided the activities are non-competitive and are SECONDARY to the activities of the club (i.e. are not the main activity of the club - it would be assumed that a club whose prime activity is caving, for example, would be affiliated to and have insurance through the British Caving Association (BCA)). The cover does NOT apply to those who are acting as professional mountain guides, instructors, etc.
The cover includes events like a club meet, a fundraising sponsored walk or "disco", or an open-day at the club hut etc. It includes websites, newsletters, committees, officials and voluntary helpers - in connection with any club-organised event or activity. If non-club members are involved they would not have liability insurance in their own right, but the Club would be covered if a legal action for negligence should be brought against it, its officials or members. However, it does NOT include supervision of, or advice or instruction given to non-members of the Club or BMC - Professional or Instructor's Indemnity would be required for this.*
* NB. The only exception to this is in the case of a BMC member /affiliate who is consolidating his ML log book experience whilst working towards an award, eg WGL, MLA or SPA.