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The decision of an Austrian court to convict an amateur climber of manslaughter after he had left his girlfriend behind to die on an Alpine peak in winter is certain to be examined closely throughout Europe.
In his decision in Innsbruck, the judge, Norbert Hofer – a climber, and an expert in Austrian law relating to the mountains – ruled that the “galaxies-wide” disparity in experience and skills between Thomas P and his late girlfriend Kerstin G meant he had been de facto acting as her mountain guide “as a favour” despite no financial arrangement having been involved.
The case has drawn global media attention to what, if any, precedent it could set for climbers and mountaineers involved in accidents. An appeal against the ruling is expected.
While professional mountain guides in many jurisdictions belong to certified bodies and can be held legally responsible for negligence in serious cases, and similarly for adults leading activities with minors, Hofer’s ruling suggests a novel and potentially complex duty of care: between more experienced and more novice participants in mountain sports.
At the heart of the case was Thomas P’s decision to climb a high-altitude, mixed snow and rock route on the 3,798-metre (12,461ft) Großglockner in poor weather with insufficient safety equipment, as well as errors of decision making, including failing to turn back late at night below the summit when it would have been safe to do so.
The prosecution’s argument, accepted in part by the judge, was that Thomas P had made nine separate mistakes, the most serious being to take Kerstin G on the climb despite her inexperience and the fact she had never undertaken an alpine tour of this length, difficulty and altitude, and despite the challenging winter conditions.
The court heard Thomas P had left his girlfriend alone and exposed in the open and pushed on alone, apparently believing he could secure assistance from a hut on the other side of the mountain. He had declined the offer of assistance from a rescue helicopter that had been sent to see if they required help.
“You haven’t been convicted because you’re [the] better [climber],” Hofer told Thomas P, rather it was because he had met the threshold for what the court believed was “guiding out of courtesy” and the duties that involved. “You did not fulfil the leadership responsibilities you assumed in the manner required of you by law.”
Whether Hofer’s ruling has a wider impact will depend on how it is seen in different jurisdictions with varying attitudes to regulation in the mountains, including how police investigate fatal accidents.
In an interview with Austria’s Kurier newspaper, Andreas Ermacora, a former head of the Austrian Alpine Club, which is a major provider of mountaineering insurance throughout Europe, was sceptical the ruling would have a major impact. “I don’t think so, because every story is so unique. [But] it is perhaps groundbreaking that this is the first time in Austria that someone has been convicted as an unqualified guide,” said Ermacora, a lawyer who has represented professional guides involved in accidents.
“The crucial point was that it was clear the woman would never have gone up there alone. For a mixed ice and rock climb like that in winter, you really need to know what you’re getting into. And I don’t think she knew that at all. He, on the other hand, had been up there several times before. She transferred her responsibility to him.”
Where that becomes complicated, however, is that the main way in which many aspirant mountaineers gain skills is through the mentorship of more experienced partners.
“One of the things that struck me was the big disparity in experience between the two,” said John Cousins, a British mountain guide and chief executive of Mountain Training, which runs training schemes for mountain activities.
“We’re all on a continuum of experience. If someone is an absolute novice they can only be looked after. But once you get a way along that continuum, in my mind as a mountain guide, it very definitely becomes a negotiation. You want to be constantly checking in with the other person to see how it is going for them.”
Checks would include whether the less experienced person was still within their comfort zone, and whether the more experienced climber might feel out of their depth, even if they say they are not. The latter issue was prominent in reporting around Kerstin G’s death last year and in the case itself.
“I can’t think of a precedent,” said Cousins. “But I also don’t believe anyone goes into the mountains with a court in mind in the event of an accident.”
Where it may have an impact, some observers suggest, is around whether some amateur climbers could feel nervous about being seen as responsible for a less experienced companion, a point made by Severin Glaser, a professor of criminal law at the University of Innsbruck.
“This could shift the responsibility for yourself if you’re doing something dangerous,” he told the New York Times. “The costs of mountaineering, the costs of expressing your freedom might rise, and maybe some people are not willing any more to pay this higher price.”
A final issue apparent to climbers is the sometimes complicating issues of climbing partnerships where those involved are in a relationship, a situation where – regardless of gender – the dynamics of the need for approval or vulnerability can creep in.
It is an issue coincidentally discussed in the current issue of Climbing magazine by the climber Alice Hafer, on why she had decided not to climb with her “significant other” after a frustrating climb. “I looked back on … situations like this one and saw that I often deflected decisions to my partner and avoided empowering myself towards my own goals. Climbing, a place where I usually excelled, became tainted by the context of a relationship.”
