As far as I can tell, the judge’s verdict was rendered from the bench and there is no written judgment yet. Hopefully, there will be. For now, we don’t have a detailed explanation of the judge’s reasoning.

The Guardian has an account of the judge’s statements from the bench:

Judge Hofer, presiding, an experienced mountaineer who is active as a mountain and air rescuer (although he emphasised that had “no bearing on the case”) ruled that the defendant had been negligent in failing to recognise that Kerstin G would be unable to complete the climb well before the couple ran into difficulty.

“I do not see you as a murderer. I do not see you as cold-hearted,” he told Thomas P while delivering the verdict, accepting that the defendant had gone to fetch help.

However, he said that because Thomas P was “galaxies” more proficient as a mountaineer than his girlfriend, and because she had placed herself in his care, he bore responsibility for her death.

The [judge] told Thomas P that with his alpine experience he should have recognised that his girlfriend’s abilities “were far from sufficient”.1

Note the judge’s comment about the climber’s girlfriend placing herself in his care. I believe this is a reference to “Führerschaft aus Gefälligkeit” (guiding as a courtesy), a concept under Austrian law. I’m trying to find more information about it and will write more if I learn anything noteworthy, especially as compared with Canadian law.

In the meantime, I leave you with the five lessons the German Alpine Club suggests arise out of this case:

1. The law applies in the mountains.

2. There is strength in retreat.

3. If in doubt, call for help.

4. Always take an emergency blanket and bivy sack.

5. The more experienced must adapt for the less experienced.2

Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.

This climbing accident occurred during a difficult winter ascent of Grossglockner on January 19, 2025. There were two recreational climbers involved. After 18 hours under way, and approximately 50 meters from the summit, the 33-year-old female climber became incapacitated due to exhaustion. Her 36-year-old boyfriend left her to get help. By the time rescuers reached her, she had already died from exposure.2

In a press release, the Public Prosecution Office of Innsbruck alleges the male climber made numerous errors, including poor planning, rendering insufficient aid, and seeking help too late. Significantly, the prosecutor claims the male climber had a heightened level of responsibility for the female climber because he was the more experienced alpinist and had planned the ascent.

In a blog post, the German Alpine Club indicates this latter claim is key. The prosecutor is saying the male climber bore a level of responsibility for his partner, under Austrian law, equivalent to that of a guide.

The male climber denies any criminal wrongdoing.3 He claims his girlfriend was an experienced alpinist and they planned the ascent together. He also blames the rescue team for the delay.

The trial began today. The accused could be jailed for up to three years. I’ll post at least another update when the verdict is released.

Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.

Introduction

Hello and welcome to another edition of Canadian Climbing Law. Since there have been no new climbing cases since my last report, today we’ll look at another from the “back catalogue”.

Next up is Manson v. Mitchell. We’ll consider two decisions: an initial one from a summary trial (2023 BCSC 723) and a subsequent appeal (2024 BCCA 142). While this case arises out of a climbing accident, these decisions do not determine liability. To date, the court has yet to rule on this. Rather, they concern the chronological scope of the liability waiver the plaintiff signed. This makes Manson v. Mitchell noteworthy.

The parties’ dispute arose because the waiver only contained the date of their first climb, but the accident occurred on another climb.

The crux of these decisions is thus the proper interpretation of the date in the waiver. The defendant guide argued this date indicated the start of a season of climbing. The waiver therefore applied to all the climbs he and the plaintiff were to undertake, including the climb that resulted in the accident. By contrast, the plaintiff argued the date only referred to a single climb, i.e. the climb that occurred on it. The waiver, therefore, applied only to this one climb, and not any subsequent climbing.

The summary trial judge sided with the plaintiff; the appeal court agreed. In brief:

1. based on the language of the waiver alone, it did not apply to the climb on which the accident occurred; and

2. this result did not change even if the court interpreted the waiver accounting for the “surrounding circumstances” in which it was signed.

In the result, the court rejected the defendant’s request the case be dismissed.

Background

The initial decision is from the British Columbia Supreme Court following a summary trial. This is a streamlined trial procedure where evidence is presented to the court via affidavits and cross-examination.

The plaintiff was an avid outdoorsman and 63 years old at the time of the accident. The defendant was a professional mountain guide, certified by the Association of Canadian Mountain Guides (his guiding company and the ACMG were also defendants).

The plaintiff and defendant climbed together on three occasions during the summer of 2021. Prior to the first climb, the plaintiff signed a waiver. This climb occurred without incident; likewise, the second climb. However, on the third climb, the accident occurred.

During the accident, the plaintiff fell seven meters. Both he and the defendant were injured and airlifted off the mountain.

The plaintiff sued, claiming compensation for injuries (physical and psychological) and economic losses.

At the time the plaintiff signed the waiver, he and the defendant had committed to the first climb, and had discussed the potential for a range of other climbs that season. However, it was not until after the first climb that they made any additional plans.

The Waiver Did Not Apply on a Plain Reading

If the court were to look only at the explicit terms of the waiver, it could not apply to the third climb. The defendant conceded this. As noted, the plaintiff had signed this waiver prior to the first climb. Significantly, the waiver only referred to the date of this first climb, which was June 18, 2021. The waiver contained no reference to any other climbing dates or timeframes, and it was the only waiver the plaintiff signed.

The Waiver Still Did Not Apply Considering the Circumstances

The defendant argued the court should interpret the waiver by looking beyond its explicit terms and factoring in the surrounding circumstances (that is, what the parties did, said, and thought) around the time the waiver was signed. From this perspective, per the defendant, the date in the waiver indicated the first of a series of climbs the parties were to undertake that summer. As such, the waiver applied to the entire season of climbing, including the climb resulting in the accident.

The court agreed it should consider the facts surrounding the signing of the waiver. This is standard contract law. But it did not agree this approach yielded a result different from a plain reading.

After analyzing the facts in careful detail, the court found no mutual intention on the part of both the plaintiff and the defendant that “June 18, 2021” was to refer not just to the climb on that date, but to the start of a season of climbing. At the time of signing, any subsequent climbs were still merely unconfirmed and unspecified possibilities of an indeterminate timeframe and involving different risks. While the defendant may have personally understood the waiver to include all climbs, the court found insufficient evidence, in all the facts, to indicate the parties were reciprocally aligned in this regard. Accordingly, the court ruled the waiver did not apply to the third climb.

Appeal Court Agrees With Trial Judge

The defendant appealed to the British Columbia Court of Appeal. He was unsuccessful. This court agreed with the trial judge’s analysis.

Notably, the Court of Appeal commented that, if the chronological scope of the waiver had included the third climb, it would have protected the defendant from liability from any of the types of claims to which it applied.

Takeaways

For anyone interested in Canadian law as it applies to climbing, this is a noteworthy case. Waivers play a primary role in risk management in the climbing community.

Importantly, this case does not stand for a general proposition that courts will refuse to enforce waivers aimed at including multiple climbs.

Rather, if there is a dispute about whether a waiver applies to one climb versus multiple, a court will interpret the waiver based on its terms viewed in relation to the factual matrix when it was signed. The key question will be whether the language in the waiver, and the facts relating to it, reflects a mutual intention on the part of both parties to limit the scope of this contract to a single climb or to define it broadly to include multiple.

Further Reading

This case has attracted attention from the legal community. For additional commentary, please see:

• Navigating Liability: Lessons from Mitchell v. Manson in waiver applicability

• Manson v. Mitchell, Take Five British Columbia, 2024 CanLIIDocs 1069

• Online waivers enforceable for recreational activities in BC

Postscript

Since the release of these decisions, this case has resulted in yet another, namely Manson v. Mitchell, 2025 BCSC 1588. This decision also does not address liability. It is procedural in nature. I may write it up in the future but, in the meantime, I flag it only to indicate this case is on-going as of May 20, 2025. Maybe it’s settled by now, or maybe we will eventually see a trial decision.

Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.

The article describes a climbing accident that occurred in May 2023 in the Avon Gorge near Bristol, England. The plaintiff had finished a route and leaned back on the rope expecting the defendant, his climbing partner, to belay him to the ground. Instead, however, the plaintiff fell 56 feet and suffered serious injuries. He alleges the defendant had “let go of the rope or otherwise taken the Claimant off belay where it had not been clearly and equivocally communicated by the Claimant as leader that this was required.” To date, the defendant has yet to plead a defence.

Given its UK origin, this case is admittedly not directly on topic for this newsletter. But two things about it struck me as noteworthy for anyone interested in Canadian climbing law.

First, the article makes no mention of the landowner/land manager being named in the suit. Per Wikipedia, the Bristol City Council may own the portion of the crag where climbing occurs. This is not a remote or wilderness area. I’ve not seen the pleadings in this case, so for all I know the article is simply silent regarding any other defendants. Were this a Canadian lawsuit regarding a climbing accident in a comparable location, I’d expect the landowner/land manager to be named as a matter of course.

Second, this is the first case, to my recollection, that I’ve personally come across involving a climber suing a non-guide climbing partner. Admittedly, I’ve not researched this exhaustively, but all the cases I have otherwise encountered - regardless of jurisdiction - involved climbers suing guides, guiding associations, landowners/land managers, climbing gym owners and operators, gear manufacturers, etc. Climbing lawsuits are rare, and rarer still for a climber to sue a climbing partner.

If you’re aware of any other cases where a climber has sued another climber (not guide), I’d be grateful to hear from you. Please leave a comment or contact me directly. Thanks in advance!

Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.

Hello and welcome to the inaugural edition of Canadian Climbing Law.

To kick this project off, I thought I’d start with a case called Arif v. Li, 2016 ONSC 4579 (CanLII) It is not a recent case but it is a rare one. At this time, it is the only reported case where a Canadian court has ruled on liability for a climbing accident. Hence it is an important precedent for the climbing community and landowners/managers.

This case concerns a plaintiff who was injured while participating in a rock climbing course. The course was held in a conservation area. He sued the instructor (guide company) and the landowner (conservation authority). The court decided neither of these parties was liable to the plaintiff for his injuries. This decision was based on the fact the plaintiff had:

1. signed liability waivers releasing each defendant; and

2. voluntarily assumed the risks of climbing.

In the result, the court dismissed the plaintiff’s claim.

Background

This court decision arose out of a summary judgment motion. This is a procedure whereby a party can ask a judge to decide a claim on the basis of affidavit evidence instead of oral testimony at a trial. Affidavits are written statements made under oath.

While the judgment is from 2016, the accident at issue happened in 2013. The accident occurred during an introductory climbing and rappelling course offered by the defendant guide company. The course was held at a crag near Toronto called Rattlesnake Point, which is owned and managed by a local conservation authority. Rattlesnake Point is a popular place to teach climbing. The plaintiff injured his leg when he fell from a height of approximately two meters while climbing (presumably) on a top rope. He was being belayed by another course participant.

Court Enforces the Waivers

As a condition of participating in the course, the plaintiff was required to sign two liability waivers (also known as releases), one from the conservation authority and the other from the guiding company.

To determine whether the waivers defeated the plaintiff’s claims, the court analyzed whether:

1. the plaintiff was bound by the terms of the waivers?

2. the waivers covered the plaintiff’s claim?

The court answered each of these questions in the affirmative.

With respect to the first question, the court found the plaintiff understood the purpose of the waivers, he signed them with intention, and the defendants had taken reasonable steps to make him aware of their content. The court also concluded the waivers were neither unconscionable nor contrary to public policy.

With respect to the second question, the court found both waivers contained broad releases of liability. That is, the ordinary meaning of the wording of the releases unambiguously conveyed to any reasonable person that the plaintiff had agreed to release the defendants from all claims for personal injury arising from his rock climbing activities due to any cause whatsoever. The waiver explicitly included causes such as negligence, breach of contract, or breach of any statutory or other duty of care (these are all different grounds on which plaintiffs can, facts depending, advance claims).

Given the court found the liability waivers enforceable against the plaintiff, his lawsuit could not succeed.

Court Finds Plaintiff Voluntarily Accepted All Risks of Rock Climbing

The waivers alone would have been sufficient to defeat the plaintiff’s claim, but the defendants also argued, regardless of the waivers, the defendant had voluntarily assumed all risks of climbing. This is a defence known as volenti non fit injuria.

The defendants advanced this additional, and independent, basis on which the plaintiff’s claim could be dismissed in case the court refused a dismissal on account of the waivers. In litigation, this is known as making an argument “in the alternative”.

The court also agreed with the defendants’ second ground for dismissal. It found the plaintiff knowingly rock climbed and understood it was risky. There was also no evidence his judgment was clouded by alcohol or anything else.

Accordingly, this was another reason the plaintiff’s claim could not succeed.

Takeaways

For anyone interested in Canadian law applied to climbing, especially as it relates to third party liability, this is a significant case. As I mentioned: it is presently the only instance of a court ruling on liability in a lawsuit arising out of a climbing accident. There are few court decisions addressing climbing at all, let alone liability for a given claim. Given the popularity of the sport, this is noteworthy.

Canadian law can offer powerful protection to landowners who permit climbing and climbers who teach it. Courts will enforce waivers of liability relating to climbing. Courts can also decide claims will not succeed where a plaintiff has voluntarily assumed the risks of climbing.

Disclaimer: This newsletter contains information only and no legal advice. If you want legal advice, retain a lawyer.