Peter Alastair Struthers-Wright v Nevis Range - Court of
Session, 4 May 2006
Peter Struthers-Wright fractured both upper arms after falling
through an overhanging snow cornice near the Chancer Run at Nevis
Range, the ski slopes at Aonach Mor near Fort William on 20 March
2002. Mr. Struthers-Wright was 35 years old at the time of his
accident. He started skiing at the age of 5. He was a proficient
recreational skier. While he did ski black runs, he preferred to
ski red or blue runs. He had substantial experience of skiing at
Aonach Mor and had skied there two to three times within the
previous two or three months. He had skied in the Back Corries area
of Nevis Range seven days earlier.
Mr. Struthers-Wright arrived at the summit plateau at a height
of 4,000 feet containing the ski runs in reasonable weather with
generally good visibility. He wished to ski within the area known
as the Back Corries.
Each run was marked with ability levels ranging from green
"easy" to black "very difficult". He wished to ski the Back Track
run which was graded red. He eventually fell through a cornice on
to the top of the Chancer run which was graded black.
e had left the top of the tow and was heading for the run,
moving at what he described as a walking pace in a skating motion.
He followed tracks in the snow from previous skiers, who he
described as having obviously gone to the Back Corries. He was not
on the normal route from the tow to the Back Track run. After
proceeding only 50-60 yards the weather changed dramatically and he
could only see a further 50-60 yards in front. He continued
forward, which he felt was the best option, because to go back
would have meant to go uphill and as he was following tracks he
thought that he would soon approach a sign. In cross examination he
accepted that he had seen a black sign marked "Chancer" which in
fact marked the entrance to the Chancer run. He had fallen off the
ridge as it had continued round towards the entrance to the Back
Track run.
It was argued that Nevis Range ought to have: closed the summit
area and the Back Corries area due to the possibility of
deteriorating visibility; put marker poles at the edge of the
ridge; marked the route from the tow to the entrance to the Back
Track run; and produced a more accurate piste map of the ski area
all, in terms of the Occupiers Liability (Scotland) Act 1960.
Evidence was led for Nevis Range from a number of their
employees and their Ski Patrol. The Ski Patrol had filled out an
Accident Report Form at the time of the accident based upon their
conversation with Mr. Struthers-Wright which indicated "skiing
along the ridge fell into Back Corrie off cornice".
Nevis Range gave evidence that it was possible to ski into the
Back Corries from all along the ridge where the fall took place and
danger signs would therefore not be appropriate. Poles would not be
appropriate because they tended to indicate a route rather than a
hazard and would create a risk of drawing skiers towards them.
Warning signs of some other sort had limitations. Snow and ice
covering them could make them unreadable. The very strong wind
could blow them away. The use of permanent signs sunk into the rock
raised conservation and environmental issues. The location of the
edge varied according to snow conditions. Fencing or netting along
the ridge was also impractical.
Lord Turnbull was persuaded by the evidence put forward by Nevis
Range. He was satisfied that Mr. Struthers-Wright was well aware of
the recognised and signed route from the summit tow to the Back
Track run. That route would have kept a skier well away from the
plateau edge. However, he had chosen not to follow it. Lord
Turnbull came to the view that key parts of the evidence of Mr.
Struthers-Wright lacked credibility.
Lord Turnbull quoted from Lord Hoffman's already famous speech
in Tomlinson v Cogleton Borough Council & Another [2004] and
earlier Scottish authorities to hold that there was no duty upon an
occupier to provide protection against obvious and natural features
of the landscape. By the same logic, there was no duty to provide
warning signs or notices drawing attention to the danger of such
features.
Counsel for Mr. Struthers-Wright sought to avoid that legal
approach by arguing that the danger was not the natural feature of
the landscape but was the failure of the Pursuer in poor visibility
to appreciate that he was at or approaching the edge. It was argued
that that was something which Nevis Range ought to have anticipated
and dealt with by warning signs. Lord Turnbull accepted that this
was a circular argument. The presence of the danger would be
obvious to all using the area for any purpose, be it skiing, hill
walking or mountaineering. The legislation did not impose a duty to
provide protection against natural features and therefore it was
illogical to suggest that a failure to place warning signs about a
natural feature could constitute a danger arising out of an
omission.
In relation to duties of reasonable care Lord Turnbull held that
it was reasonable to have regard to the effectiveness of warning
signs, the added danger which would be introduced if the sign was
hidden by snow or blown away and to weigh against the dangers the
fact that there had never before or since been an accident of the
type involving Mr. Struthers-Wright.
Lord Turnbull also took the view that placing warning signs at
regular intervals along the summit ridge would have had a
significant impact upon the natural beauty and character of the
landscape. It was correct for Nevis Range to bear in mind the
natural beauty and attractiveness of the wilderness site. To have
placed warning signs would have constituted a disproportionate
response to the risk.
This decision will prove helpful to those involved in the
leisure industry in areas such as mountains and parks where outdoor
pursuits are undertaken.