Tragedy in France: Different Legal Systems Overseas

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.”

Ed Douglas is a Vice-President of the BMC and the article first appeared on their website, www.bmc.co.uk