Warning: The thrill of living is at risk

Courts should not try to second-guess decisions made on mountains, argues Charles Arthur

Earlier this year I was in Seattle, Washington and dropped into an outdoors shop to see whether the booming pound in my pocket would buy some climbing shoes. The shop assistant hovered helpfully as I tried a pair on. Then I asked what sort of climbing they would be best for.

From the look on his face, you would think I had asked for the name of a reliable hitman to kill my grandmother. "I can't tell you that," he said querulously. "You'd have to get a qualified instructor to show you."

In my naive, British way I thought he was overreacting. In fact, he was going along with the conventions in the United States: careless words can kill you, financially - especially in the killer sport of mountaineering. It is not only the shop assistants who take care not to tell you anything. Even the mountaineering magazines carry disclaimers which effectively say, "Look, we publish this magazine but really, you'd be an idiot to think we know anything about this at all. Go and find somebody qualified before you hurt yourself."

"Qualified", of course, is the American shorthand for "insured against lawsuits arising from giving advice". Doctors are qualified. Lawyers are qualified. And shop assistants in outdoor shops aren't qualified, so they have to shut up.

It would be tolerable if such attitudes remained on the other side of the Atlantic, where you can barely walk down the street without seeing a warning. (I expected continually to see written on the ground: "DANGER: Falling on this pavement can cause injury".) But it looks as though Britain, too, is going to be infected with this virus of legally induced anxiety.

Yesterday a High Court judge ruled that David "Smiler" Cuthbertson, a mountain guide, had been negligent when his friend, Gerald Hedley, died while they were climbing in the French Alps. To try to speed up their progress across a rapidly melting ice climb, Cuthbertson arranged a belay - a place where Hedley could wait - consisting of a single piece of metal screwed into the ice. Ideally, you would want two such screws to form a "bombproof" belay. Cuthbertson argued that he used just one because time, rather than absolute safety, was of the essence: he wanted to cross the slope before the ice melted, setting off a hail of rocks. He began to climb but the ice sheet broke beneath him. He and Hedley, who were roped together, fell onto rocks below.

Cuthbertson escaped with a broken knee, but Hedley was killed.

The suit was brought by Hedley's son - who was not born when his father died. Daniel Woodroffe, now six, sued through his mother, Lynda, and will receive up to pounds 200,000 in damages as compensation. Mr Justice Dyson said the time saved by not fixing a second screw or "running belays" (intermediate attachments for the rope, on the ice slope) was not long enough to justify taking the risk of using just one belay.

Quite apart from the bizarre spectacle of a High Court judge making pronouncements about conditions prevailing on the side of a mountain six years ago to which there are no independent witnesses, the prospect of widows (or, for that matter, widowers) suing over unpredictable accidents in risk sports is deeply worrying.

Taking risks and being responsible for yourself - not relying blindly on others - is what risk sports are all about. Even more than that: it's what life itself is about. If you could control all risks completely, so that all outcomes were known, where would the danger be? Where would the thrill of living be?

The dampening effect of such lawsuits as this in the UK is particularly worrying because climbing and mountaineering - such wonderfully pointless, yet such life-enriching sports - have for years been dominated by British climbers. The name of Edward Whymper, one of the foremost of the 19th century pioneers, is still spoken with awe. People wearing modern equipment in the Alps regularly quiver as they repeat his climbs, and realise how difficult and daring were his accomplishments.

Whymper did have many narrow escapes, none more so than on his descent in 1875 in a team of six from the first ascent of the Matterhorn. The first four of the team slipped to their deaths; there were rumours that the guide (who survived with Whymper) had cut the rope to save his own neck. The Times thundered at the time at the stupidity of climbing peaks and the senseless loss of life. Happily, nobody thought of resorting to law, or a whole culture might have died on the spot.

The fact is that in the Alps, the essence of survival is evading danger, and that generally means trading safety (such as ice screws) for speed: the sooner you're off the mountain the less likely it is to kill you. Staying alive is more important than following a rule book. But if everyone is going to start hauling mountain guides up before the beak because they get hurt, then the guides are going to give up and stick to taking school parties for walks around car parks. (After all, someone might get hurt if you go up a mountain route.)

What the judge overlooked is that the advance of technology which has made it so much easier to get into the mountains hasn't been mirrored by an advance in mental ability. People still get scared when they have a 2,000 foot drop below them, even if they're attached to steel hawsers made to the best standards available. (Most just have nylon ropes, so the terror increases, marginally.) The ability to control that fear and evaluate the situation calmly while the snow melts and the wind blows and the cloud formations change, knowing your capabilities and that of your partners, and the history of the area, is what distinguishes a mountain guide - or any other experienced climber - from the beginner. Or, one might comment, the High Court judge in his chambers. What we should look for is the approach of Whymper - not the whimper of those reaching for their lawyer.