Why Our Society Needs Unregulated Climbing

Law student and rock climber Aidan Howes, makes the case for maintaining the status of unregulated climbing in Australia, despite calls for its regulatory overhaul and the continued intrusion of nanny-state mentalities.

2009 is a year marred in the minds of Australian climbers after the tragic death of Nick Kaczorowski. The 24-year-old outdoorsman fell an estimated 80 metres on a Blue Mountains multi-pitch route after a wall bolt ruptured, prompting a chain of devastatingly harmonised events that culminated in his rope breaking.

Calls For Regulation

Naturally, a public response ensued, which called for the regulatory overhaul of a sport seemingly as wild and untamed as the bush itself. How could a dutiful society sit back and leave its citizens at the mercy of slivers of steel a couple of inches long, driven into remote rocky walls by unappointed volunteers with no guaranteed expertise?

Aidan Howes rock climbing gear and equipment putting your life on a line

Image: Frens Jan Rumph

Suggestions were raised that the National Park authorities assume oversight of bolt fixtures. Others considered heaping greater legal scrutiny onto the individuals who install climbing fixtures, establishing a basis of liability in the event that one was to fail.

After all, one cannot rule out that initiatives like these might have prevented the death of Kaczorowski, or at least brought some responsible party to justice.

But at a time of ever encroaching surveillance and supervision, our society needs these strongholds of independence more than ever; opportunities to take responsibility for our lives, even in the most acute sense of the word, and remember what it is to do something exceptional on our own terms.

Aidan Howes rock climbing putting your life on a line

Photograph of Primo Levi, 1986, Image: Silvio Ortona

Primo Levi, born in Italy in 1919, led a remarkable life as a Holocaust survivor turned writer, chemist and hiker. In one piece he describes the stoic nature of a number of mountaineers resting overnight in an alpine hut, and captures this idea of freedom beautifully, where he speaks of the want:

‘to measure yourself at least once, to find yourself at least once in the most ancient of human conditions, facing blind, deaf stone alone, with nothing to help you but your own hands and your own head’

His words beg the question, how often is it that we find ourselves reliant on none other than ourselves?

At this point, I should emphasise that I am not generally anti-regulation, nor is this some libertarian call to disobey signs in national parks. As a final year law student, I understand the need for governance more than many. Not that you need to be Atticus Finch to observe the hopelessly overcrowded and rubbish-strewn state of Mount Everest – the outcome of years of inadequate regulation in an environment that clearly needs it.

The Psychology Of Blame

But what six years of studying law has taught me is the hastiness with which people look to blame someone or something. The inherent human reaction to something undesirable happening is to remove our own causal responsibility from it.

And this mentality breeds slackness. It’s why road fatality rates did not fall as expected when seatbelts were compulsorily introduced into cars in the late 1950’s. People took the extra safety feature for granted, and adjusted their own recklessness accordingly.

However, outdoor rock climbing teaches the opposite – to take nothing for granted, to take full responsibility for your own well being.

A friend who taught me much of what I know about climbing told me years ago that climbing is an exercise in risk mitigation. Sure, this isn’t the adrenalin-soaked impression of the sport you might draw from films like Vertical Limit, but this sobering lesson is at the heart of any self-respecting climber.

It’s why much of my first weeks and months of climbing focussed on lessons in safety. Tying knots correctly, safely placing gear, preventing your anchors from shock-loading in the event that a bolt should break.

Climbing a route beside Blue Lake NSW with my friend Sam
Image: Maggie Liuzzi

And there’s something profoundly satisfying about applying these lessons – knowing that all that remains between you and oblivion is the knot you’ve tied, the gear you’ve placed or the bolt you’ve inspected.

Someone not prepared to humble themselves enough to properly assume these practices should consider a different pastime, perhaps backgammon.

Kaczorowski’s death occurred under exceptionally unordinary circumstances. There are remarkably few reported cases of ropes breaking in modern climbing history, and had this particular rope not reached its full tautness right as it struck a sharp rock lip, it arguably would not have split and its owner might well be alive. What this incident should teach us is to be aware of these risks, and to respect the conditions that we ultimately submit ourselves to when we venture outdoors.

What it should not teach us is that someone else is to blame, and that regulation must therefore intervene to correct this. The implementation of climbing route governance in any conceivable form would breed complacency; “It’s fine, this is a classic route, I’m sure the climbing inspector has made sure these bolts are solid.”

This is not the sort of culture that climbing should attract; because it is not the ethos that climbing should teach.

Instead, we should learn to identify when it’s time to retire a rope, and study the signs that a bolt or a trad placement has been made safely. And all the while we should be grateful for the opportunity to experience the self-sufficiency that few today are offered.

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Hi Chris – ripper of a question.

The Civil Liabilities Act (which I’m a big fan of by the way, it saw the writing on the wall in terms of an emerging USA-style litigation culture in Aus and attempted to nip much of it in the bud) is drafted quite broadly so that it can apply fluidly to novel sets of circumstances. And luckily for climbers, I think this breadth already has us pretty well covered. The overriding purpose of section 5F was to establish a distinction not recognised at common law between rec activities and other activities, and make it clear that where there is inherent danger manifested through an obvious risk (an even lower threshold than an inherent risk as per section 5I), potential negligence remedies are massively limited. The reasoning here is clear – if you get injured while voluntarily engaged in a dangerous hobby, then you must accept the risk you’ve brought upon yourself. And even though some hard-to-notice defect (from the perspective of a prudent climber) may be present in the way someone has made their bolt fixture, as you mentioned, section 5F says that risks that are non-perceptible can still be considered obvious, and the defence will still apply. To my knowledge I don’t think a rock climbing case has even been tested with the courts because it seems pretty clear that rock climbing fits squarely into what Parliament intended by their drafting (especially as even horse riding has been accepted as dangerous enough for the purposes of the section, see Mikronis v Adams (2004))

So no, I don’t think there is much scope at all in tort law (in the post-CLA era) for a bolter to lose sleep over their liability, unless they also offer climbing activities commercially as a guide, because there is always going to be a risk of bolt failures (although very small) and I think climbers are in general aware of this. In terms of land-owners, you’re right that there is a general duty of care owed by land owners to visitors on their property (Hargrave v Goldman) but I think the section 5F defence (which also applies here) would likewise completely impede any claim against them.

Instead, the regulation that I think is concerning is far more subtle than tort law claims – small deprivations of independence such as restrictions on when and where people can climb, licensing requirements, the false illusion of security from some tokenistic oversight authority etc.

I’m psyched that my article’s gotten people thinking about the topic!

– Aidan

David Reeve says:

11/08/2017 at 5:08 pm

Thanks for raising your voice… it’s something that can’t be said enough.
Chris says:

12/08/2017 at 10:08 am

Hi Aidan, can you please elaborate on what you mean and don’t mean by ‘regulation’? Just for instance, what are your thoughts on legislative change that (for example) sees s 5L and/or 5F (CLA (NSW) 2002) amended? What if one of those sections was amended to include an example that indicates the ambit of the section is intended (by Parliament) to include the case where a climber is injured from bolt failure due solely to something that the bolter did not do (or, may not have done) with reasonable care and skill? (Assume the route is a recently bolted one, and that the defect was not obvious to a reasonably minded and prudent climber clipping the bolt). And for the sake of argument, ignore the fact that such a law change might conceivably be only by way of an example or note added to the legislation.)

Do you consider that such an amendment might go some substantial way to protecting a land manager/owner, and/or a bolter, from civil liability due to bolt failure caused by oversight or error on the part of, say, the bolter?

Do you think such a legislative objective (or one like it) ‘should’ be on our agenda as climbers? That is, do you think such law change might not give us (climbers) more Freedom of The Hills? Or do you see it as ‘regulation’ that smothers or free spirit?

If in principle there is merit for such a strategy (because it may alleviate entirely, or substantially reduce, the civil liability risk to a bolter (if there is such a risk) or to a land ownert/manager (where undoubtedly there is such a risk)), do you see a better way to achieve it?
Aidan Howes says:

13/08/2017 at 11:34 am

Hi Chris – ripper of a question.

The Civil Liabilities Act (which I’m a big fan of by the way, it saw the writing on the wall in terms of an emerging USA-style litigation culture in Aus and attempted to nip much of it in the bud) is drafted quite broadly so that it can apply fluidly to novel sets of circumstances. And luckily for climbers, I think this breadth already has us pretty well covered. The overriding purpose of section 5F was to establish a distinction not recognised at common law between rec activities and other activities, and make it clear that where there is inherent danger manifested through an obvious risk (an even lower threshold than an inherent risk as per section 5I), potential negligence remedies are massively limited. The reasoning here is clear – if you get injured while voluntarily engaged in a dangerous hobby, then you must accept the risk you’ve brought upon yourself. And even though some hard-to-notice defect (from the perspective of a prudent climber) may be present in the way someone has made their bolt fixture, as you mentioned, section 5F says that risks that are non-perceptible can still be considered obvious, and the defence will still apply. To my knowledge I don’t think a rock climbing case has even been tested with the courts because it seems pretty clear that rock climbing fits squarely into what Parliament intended by their drafting (especially as even horse riding has been accepted as dangerous enough for the purposes of the section, see Mikronis v Adams (2004))

So no, I don’t think there is much scope at all in tort law (in the post-CLA era) for a bolter to lose sleep over their liability, unless they also offer climbing activities commercially as a guide, because there is always going to be a risk of bolt failures (although very small) and I think climbers are in general aware of this. In terms of land-owners, you’re right that there is a general duty of care owed by land owners to visitors on their property (Hargrave v Goldman) but I think the section 5F defence (which also applies here) would likewise completely impede any claim against them.

Instead, the regulation that I think is concerning is far more subtle than tort law claims – small deprivations of independence such as restrictions on when and where people can climb, licensing requirements, the false illusion of security from some tokenistic oversight authority etc.

I’m psyched that my article’s gotten people thinking about the topic!

– Aidan

Comments are closed.

Why Our Society Needs Unregulated Climbing

Calls For Regulation

His words beg the question, how often is it that we find ourselves reliant on none other than ourselves?

The Psychology Of Blame

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