The Breach of Standards of Care

The Breach of Standards of Care Although there are generalized duties of care on issues such as supervision, each discipline may also have its own unique standard for the duty of care. But the critical next step in negligence liability is to determine, based on the practicalities of evidence, whether there has been a breach of that specific legal standard. This is a question based partly on the law but also on the facts in the particular case, and therefore depends greatly on the evidence, which principally consists of documents but could mean witness testimony if a case goes to trial. The standard of care applied may be seen in Britain to focus on the ‘state of knowledge’ of hazards in the activity, which can be developing generally but also moves in response to legal cases. Some common themes occur in litigation on outdoor activities across the world, particularly as to whether – a key set of phrases in the American cases – there are ‘inherent risks’ or dangers that are ‘open and obvious’, and what the balance of responsibility might be between organizers and participants. Although hazards may vary in jurisdictions, and there are sometimes different legal solutions, commonalities are certainly emerging; in the Alabama case of Lilya v The Greater Gulf State Fair1 where injury was caused while being thrown off a ‘mechanical bull’, the rider had signed an ‘express assumption of the risks and release of liability’ and the Appeals Court found that even if this was not a ‘waiver’ or ‘immunity’ in contract law, then there was nevertheless an assumption of ‘open and obvious’ risks. In Britain, although the mechanical bull might be improbable at present, the legal result would be the same, although expressed in different language: no exclusion of liability in contact, but volenti in tort law through voluntarily assuming a risk. The leading case in Britain on breach in outdoor activities involves mountaineering, where the precise standard of care was held to be that ‘of a reasonably careful and competent alpine mountain guide’. The inquiry then had to centre on whether that standard was breached by the defendant. This case, Woodroffe-Hedley v Cuthbertson,2 was brought by the infant son of a mountaineer who had been dragged off and killed on the north face of the Tour Ronde, one of the peaks of the Mont Blanc Massif. This is an area that has the ‘highest body count’ in the world, with an annual death toll of over a hundred climbers, probably due to ease of access for many European climbers, not all of expert standard.3 The defendant, David Cuthbertson, was an experienced alpine climber on rock and ice, who was being paid £500 by his friend, Gerry Hedley, to act as a guide. Both were roped up on an ice climb, taking turns to lead, and at the

1 855 So. 2d 1049 (Ala. Sup. Ct., February 2003).