When is a Leader not a Leader?

The following article is taken from Mountaineering Ireland's Mountain Log magazine, issues 103 and 104.
 Alun Richardson imagines a walk where all kinds of things go wrong and poses questions on what the correct course of action should have been for a leader.

 "Hill walking, climbing and rambling are activities that can he challenging and may result in personal injury or death. Participants should be aware of and accept these risks and be responsible for their own actions and involvement"
— Mountaineering Ireland participation statement.

The article in Issue 103 of the Irish Mountain Log came about after a series of leader workshops arranged by Mountaineering Ireland (Ml) and conversations with individual club members concerned that they would be blamed should something happen on a walk they were leading.
People who organise or lead club walks should be applauded for their hard work and dedication to helping others enjoy the hills, but for some it can sometimes feel a bit stressful. I hope this article will give confidence to, and encourage more people to organise walks in their club. I also hope to create a more relaxing time for those that do organise or lead club walks.
It all starts with our legal responsibility to care for others that is called our ‘duty of care'. What this means is that everyone has a responsibility to protect those who may be harmed by their actions. For example when driving your car to the walk you owe your passengers and other road users a ‘duty of care` to drive in a manner that avoids causing death or injury to others or damage to their property.
Similar issues arise when we partake in a risk activity such as hill walking or climbing and they are no different to those that arise in any other aspect of our lives. We are expected not to act in a manner, which a reasonable person would conclude puts other people needlessly at risk. If you fail to fulfil your duty of care injuring someone then it is not surprising that you may be liable for the injury and you may be sued for negligence. 
Individuals and clubs can reduce the likelihood of being accused of a negligent act by following a few simple guidelines. This guidance is particularly pertinent where under eighteens are concerned.

 As Training Officer for Mountaineering Ireland, one of my roles is to talk to clubs and run workshops supporting leadership on club walks. I have found that fear of being sued is a common thread in discussions, and even though instances of successful litigation are extremely rare, this fear seems to affect the way clubs run. Leadership within clubs is a subject that evokes many opinions and even some emotion. In this article, I want to challenge your perceptions of what a club leader is, leaders' responsibilities and even whether 'leader' is the correct word. First, we will examine a club walk with a concentration of events that can, and have, happened all on one walk. Then I will pose some questions raised by the events, for you to think about. 

Before the walk

Jane, 41 years of age, is a stalwart member of the 'Figment of My Imagination Walking Club' (FMIWC, a member club of Mountaineering Ireland). She has volunteered to organise a club walk of 5-6 hours in the Maumturks during August. She is an experienced walker and has done BOS Mountain Skills 1 & 2 but doesn't hold any national walking leadership awards. She organises the meeting place, advertises it in the newsletter and provides as much information as she can, but does not prepare a written risk assessment for the walk.
The weather forecast is for a fine start to the walk, but it may rain a little later. The wind is light SW all day. Jane arrives at the meeting point where there are twenty walkers waiting to start the walk. Jane knows some of the walkers. Some of the group look well kitted out in branded gear, but others are not so well kitted out. One walker has a plastic bag for his gear; and another fit young man has trail shoes on, even though the Club rules state that they must wear walking boots. Two are not club members but are interested in joining the club, and there is a 17-year- old son of one of the club members who dropped him off an hour ago; the son is a member of the club. 
Jane informs everyone that she is leading the walk and asks someone to assist her. She informs the guy with the running shoes of the club rules, but he says he has forgotten his boots and is adamant he wants to do the walk. Jane shares the kit from the guy's plastic bag amongst some of the group and allows him to come along. Jane decides that the 17-year-old can come along on the walk too and doesn’t want to argue with the guy in the trek shoes, so he also comes along. The two newcomers join everyone and they set off. 

The walk

The walk initially follows a well-trodden track for an hour, passes a chapel and then turns left to head steeply uphill. The rest of the group are relaxed and most follow along, chatting to each other. Two of the team, however are much faster and quickly head off in front. After an hour more, the faster two decide they want to go ahead and will find their own way back to their cars. Jane tries to stop them as they are the best navigators in the club, but they are adamant they want to leave the slower group and they go off on their own. Shortly after this, one member gets a phone call that his mum is ill and sets off down on his own at a fast pace.
At one o’clock, the group stops for lunch and the rain starts. The fit young man with trekking shoes announces that he has also forgotten his waterproofs. Jane decides he should go down but he wants to carry on with an extra top and a black plastic bag as a waterproof jacket. Jane reluctantly agrees. They continue on the walk and the rain slows down a bit. 
After another hour and a half's walking, one of the new members realises he has left his keys and wallet back at the lunch spot when he went to the loo. He is adamant he wants to go back for them, but the mist is coming down. Despite Jane's insisting that he should not go back unaccompanied, he turns and heads off. One of the group decides to go with him, but Jane knows that the person is not a great navigator. Jane continues the walk.
 About one and a half hours from the end of the walk, someone in the group who is wearing old boots, with poor grip on the sole, slips and injures his ankle. He is pretty cross that he wasn't told the downward section was slippery. He can’t put his weight on it but is happy to he helped down and doesn’t want to call Mountain Rescue.
 The responsibilities of organising the walk start to weigh heavily on Jane's shoulders, After all, she is an amateur walker herself who just wanted to go for a walk in the hills! The two who went back for the keys and wallet arrive back three hours after the group have all gone home! Jane has missed her dinner date that evening and is not happy. She doesn't want to lead another walk. 

The Questions

Jane is pretty unlucky for all these things to have happened in a single walk, but all these events have actually happened. The questions to consider are below, but remember, there are many correct answers.
1 Does being a member of a walking club increase Jane's responsibilities to the participants on the walk?
2 Are Jane's responsibilities to the people on the walk greater because she organised or led the walk?
3 Does Jane have to be the leader?
4 Does Jane or the group have to look after the less experienced members?
5 Was she right to let the two non-members come along?
6 Should she have allowed the guy with the plastic bag or the trek shoes to go on the walk?
7 Who is to blame should somebody slip or should Jane’s navigation result in the group becoming lost?
8 Are twenty people too many to have in the group?
9 Should Jane have done a written risk assessment?
10 Should Jane have allowed the under-seventeen to come on the walk?
11 Was Jane or the group correct to let the two faster guys go off on their own?
12 Should Jane have sent someone down with the guy who was rushing off to see his sick mum?
13 Was Jane’s course of action with the guy who had forgotten his waterproofs the correct one?
14 Should Jane have called the mountain rescue team to help the guy who hurt his ankle?
15 Could Jane, or the club, be sued by the guy who slipped?
16 Did Jane have to wait for the two guys who came down late?

The Answers

1. Does membership of a walking club increase Jane’s duty of care to others on the walk?
Membership of a walking club does not, on its own, increase Jane’s duty of care to those around her on the walk, beyond the duty of care that she has as any person walking the route as an individual in the presence of others.
Most Ml Clubs usually have a formal constitution and rules that helps to protect members and minimise any disagreements as to how the club should be managed. Sometimes these rules extend to the walks and should be carefully considered to help organisers and not made too limiting.

2. Does Jane have a greater duty of care because she has organised the walk?
lf Jane has merely gathered together a group of like minded people to enjoy hill walking then she is unlikely to have any greater liability arising from organising the meet and has no greater duty of care than in normal everyday life. This does depend however on each participant taking clear responsibility for themselves as an individual in every aspect of the activity. Ensuring that new and existing members are aware of and accept the risks of mountain walking and climbing will encourage a culture of individual responsibility for making decisions in the hills.

3. Does Jane have to be the leader?
This depends on what level of responsibility Jane is happy to accept. If Jane holds herself forth as the leader and decision maker for the group then she may find herself acquiring additional legal responsibility for the other participants, but that is of course why clubs have Ml insurance. However, if it is not necessary for the group to have a formal leader, then Jane can simply enjoy her walk as a joint member of the group. But even when the group is not formally led by Jane and she does take control of some aspect of the walk, such as navigation, the remainder of the group still have a responsibility to check they are happy with what Jane is doing. Should something happen during the walk another person may emerge from within the group to take control of that aspect, possibly on the basis of having relevant expertise or experience. However, even then, the other participants should be thinking about where they are going and assuring themselves that the correct route or action is being followed. 

4. Does Jane and/or the group have a responsibility for the less experienced members?
People join clubs for a variety of reasons such as meeting new friends and sharing experiences, but for some it also to learn new skills. This means that club members may find themselves providing informal advice, or even more formal mentoring to less experienced or new club members. Ml and Ml insurance supports the principle that clubs can provide a framework for people to share their skills and learn from each other.
ln Jane's situation where there is not a formal leader the more experienced members of the group take a collective responsibility to help the less experienced members. If there are newcomers or novices present select objectives that are within your capabilities and that could be reasonably expected to be within the capabilities of the newcomers/novices.
Teaching novices does not mean that less experienced adult group members cannot make their own informed decisions, such as accepting reasonable responsibility for the situation they are in within the limits of their knowledge. Ensure that everyone is aware of the hazards and risks that may arise and involve the novices in the decision-making processes so they have made an informed choice to participate. This means that any difficulties that occur later are as much their responsibility for failing to ask questions or contribute. lt may also be a good idea to explain to new members and any guests that the group, walk organiser or leader are volunteers, amateur climbers, walkers or mountaineers with some experience. They are merely offering their opinion, and any advice accepted is the responsibility of the recipient. 

5. Was she right to let the two newcomers come along?
As long as newcomers are aware of what they are letting themselves in for and are aware that the group are amateur walkers then why not?
Are the non-members insured is a common question. Through MI insurance the potential new club members are not insured for personal injuries, but they are covered for third party liability. A guest can participate in up to three taster walks/climbs but on the fourth session the guest must be a member of the club. A record must be kept recording guest details and the date of the taster.
Anyone coming for a walk with the club, who is not a member has at least a moral duty to abide by the club rules and should consider joining the club. However should a guest come along then explain that he or she is responsible for his or her actions during the walk. 

6. Should she have allowed the guy with the plastic bag or the one with trek shoes to go on the walk?
As long as the person with the plastic bag understands the problems and issues, then the group could offer to carrying the gear for him, The same goes for the walker with trail shoes on - the group can ensure he understands the risks he takes and that he may make life difficult for them if he can’t cope.
On a separate, but related point, some trail shoes are better in the hills than some walking boots especially if the boots are an old pair with worn down tread.
So club rules stating that participants must have walking boots will not necessarily stop slips and trips especially if the boots are old or unsuitable.

7. Who is liable or to blame should somebody slip or Jane’s navigation result in the group becoming lost?
Where individuals of comparable experience climb or walk together there is not necessarily a formal ‘Leader’ and each individual is capable of making their own informed decisions. In this instance each will owe the other an equal 'duty of care', but nothing more.
Even when it is a ‘led’ walk with a formal leader and with less experienced participants, accidents do happen and it is not always another person’s fault. That is why it is important to ensure that everyone is aware of their personal responsibilities in the hills when they join the club.

8. Is twenty too many to have in a group?
Ml do not set ratios for walks because it depends on many factors, terrain, weather, venue, abilities, experience, kit etc. Large groups have a significant impact on vulnerable terrain such as blanket bog. Large groups also pose the additional problem of keeping an eye on everyone.

9. Should Jane have done a written risk assessment?
As walkers and climbers we are constantly assessing risk from the moment we get into our car to looking at the weather on the walk. Written risk assessments are intended for the work place and there is no legal obligation for a club to have written risk assessments. However if you think a written risk assessment may help you in identify the hazards and assess the risk posed by the hazard then a generic risk assessment that applies to all your walking activities may be useful. There is no correct way to write a risk assessment and there are many examples on the Internet
.
10. Should Jane have allowed the under seventeen to come on the walk?
Young walkers are future hill walkers and should be encouraged to participate and learn from experienced people. The seventeen year old is a member of the club, therefore his parent had already signed to say he/she understands the risks and hazards of hill walking. However everyone on the walk must understand that adult members of the club, who accept responsibility for minors, have to exercise the same duty of care that a reasonably prudent parent would. The duty of care we owe to under eighteens is higher in all walks of our life including a hill walk or climb.
If your club allows under 18’s to join, then a consent form should be signed by parent(s). This must be ‘informed consent' i.e. the person or parent must fully understand what the club does and the activity the under 18 is going to be exposed to.
Those clubs that do allow under eighteens to come along should have a Children’s Officer. For more information on working with children read and apply the information contained in the ISC’s ‘Code of Ethics' and ‘Good Practice for Children's Sport’ and MI‘s ‘Children’s Policy' and the ‘Code of Ethics and Good Practice for Children's Sport’. All are available on the youth section of www.mountaineering.ie.

11.Was Jane right to let the two faster guys go off on their own?
Adults can decide for themselves what they can or can’t do in the hills. Of course we would check they are happy with their decision and then let them go.

12. Should Jane or the group have sent someone down with the guy who was rushing off to see his sick mum?
As caring human beings l am sure the group would be concerned for the walker retuning down, but whether it would be better for someone to accompany him would depend on many factors such as terrain, weather, experience of the person etc. I would be just as concerned about him driving his car too fast to get to his sick mum as rushing down the hillside.

13. Was Jane’s course of action with the guy who had forgotten his waterproofs the correct one?
lf the guy is adamant he wants to go on then I am sure the group would help and Jane and the group have done what they can to satisfy their ‘duty of care' to him. 

14. Should Jane have called the mountain rescue team out to the guy who hurt his ankle?
Mountain rescue teams can be very busy and we should think carefully whether to call them out for a relatively minor incident. However, should you need assistance then don’t hesitate in calling them. Walkers should aim to be as self-sufficient as they can be and we shouldn’t go into the hills thinking that if something goes wrong we can and will be rescued. lf the injured person is adamant he does not want to call mountain rescue and the group are happy to help him then there are a number of ways of helping someone with an injured ankle get down a hill that will not necessarily result in any more damage. All the methods rely on having some fit and capable people in the group and a first aider if possible. 

15. Could Jane or the club be sued by the guy who slipped?
Anyone can try to sue you, but they would have to show that Jane or the club owed him a duty of care, that she or the club was negligent in that duty of care and that the negligence resulted in the slip and injury. This is a tall order when one considers that they are aware of and accept the risks of mountain walking and are equally responsible for making decisions in the hills.

16. Was Jane duty bound to wait for the two guys who came down late after getting the keys?
No, but Jane is a nice person and was willing to sacrifice her evening to ensure her two friends got back down safely. 

Conclusion

Phew what a walk! All of the events have happened and it does highlight some of the issues that I am questioned about. A leader can accept as much responsibility as they are happy within the confidence that they are supported by MI and MI insurance. However, those club members who are not so confident and worried about accepting the heightened level of responsibility can still play a pivotal role in the club by organising the walk as ‘non led’, ‘facilitated‘ or 'organised walks’.
As long as you do not act in a manner which a reasonable person could conclude puts other people recklessly at risk, you can walk happily in the hills without any stress of being sued.
When walking with under eighteens make sure their parents or guardians are aware of the walk they are doing and understand the hazards and risks. As a group design the walk to accommodate all the wishes of the group and make sure everyone understands what is involved.

Clubs and qualifications
If you hold the SPA, WGL or ML it does not automatically increase your duty of care for members on a walk or climbing trip anymore than the experienced members are automatically more liable should they join a walk. For safety and information reasons Ml encourages more club members to go for their SPA, WGL or ML secure in the knowledge that they do not automatically become more responsible.

This article is simply the opinion of the training officer and should not be construed as being the definitive legal judgement. Every situation is unique and you should contact Mountaineering Ireland to clarify anything that you do not understand.





 



Galtee Walking Club