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CHAPTER 1 Introduction

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screw belay in order to save time. Cuthbertson had no recollection of the accident; however, another climber on the mountain described how a large sheet of ice broke away from under his feet, dragging him down with it. The shock of the fall wrenched out the single ice screw and Hedley was also dragged down the mountain. The rope caught on a rocky outcrop and Hedley was killed instantly. Cuthbertson survived with a fractured knee. The question for the court was whether Cuthbertson had negligently caused Hedley’s death. The evidence was that had two ice screws and a running belay been used (as was good prac tice), Hedley would not have died. In response, Cuthbertson argued that given pressures of time it was reasonable to use a single screw. Dyson J disagreed. Cuthbertson, in deciding to dispense with a second screw and not to use a running belay, had fallen below the standard of

care expected of a reasonably competent and careful alpine guide. 32 The claimant (Hedley’s young son) was awarded £150,000 in damages.

1.3.1 Corrective justice The facts of the case paint a fairly bleak picture:

Mr Cuthbertson made a serious mistake with tragic consequences which will live in his mem ory for the rest of his life. I am sure that he had Mr Hedley’s best interests in mind when he made that fateful decision to move across the rocks, without taking the elementary and fundamental precaution of making the belay safe for Mr Hedley by driving in a second screw. Objectively viewed, this was not a situation of emergency. Mr Cuthbertson had time to reflect. He reached a decision which, even without the benefit of hindsight, could not reasonably be justified. (Dyson J) In short, the accident was Cuthbertson’s fault; he was to blame for causing the accident and therefore, the argument goes, he should pay. 33 The argument here is one of justice, specifically corrective justice. 34 Justice requires that we do not unreasonably interfere with others—their person and their property—when we go about our daily lives. So if we were to ask why we should not go around punching each other or destroying one another’s property, the (or, at least, an) answer is that this is simply morally wrong. It is a requirement of justice that we do not treat each other in this way. Similarly, if I do punch you or destroy your property, justice requires me to do something about this—to correct or make good your loss. This latter demand of justice is what is under stood by corrective justice, and (as typically formulated) is built on two key elements— fault and causation . A defendant is liable to make good a claimant’s losses because they (a) factu ally caused the claimant to suffer those losses and (b) were to blame (at fault) in so acting. By contrast, where the defendant either did not cause the claimant’s losses or was not at fault in PROPERTY OF OXFORD UNIVERSITY PRESS

32. See Chapter 8 .

33. In contrast, the professional standards committee of the British Mountain Guides found that David Cuthbertson was ‘not at fault’. The climbing community has never accepted the legal decision in this case (Stephen Goodwin ‘Climbers “acquit” colleague’ The Independent 2 October 1997). 34. See Ernest Weinrib The Idea of Private Law (Harvard University Press 1995) which is generally seen as setting out the ‘purest’ account of corrective justice.