It is currently Wed Jul 23, 2014 5:04 am

All times are UTC + 2 hours




Post new topic Reply to topic  [ 26 posts ] 
Author Message
 Post subject: City Rock Waiver
PostPosted: Thu Oct 24, 2013 9:28 am 
Offline
User avatar

Joined: Sat Jan 08, 2011 10:25 pm
Posts: 195
Real Name: Wesley
So last night I trained at City Rock last night and as a member, I was asked to sigh the new waiver. Let me say up front, that I am not opposed to signing a waiver and fully understand that there are dangers that come with running this type of institution that need some form of indemnity.

My issue with this particular waiver is that it seems to absolve City Rock of any responsibility when it come to their own equipment. See the offending line below. Yes the climber is responsible for his own harness, rope etc. But what about City Rock's lead biners, top ropes, chains, wall (Structure)? This doesnt seem right. Surely these should undergo routine maintenance and inspection? I certainly hope they do.

Can any lawyer types clear this up? And I would love to hear Robert/Snort's thoughts.

And thanks guys for providing a great climbing gym. Regards

https://www.smartwaiver.com/w/52441f8cf2bf8/web/


Attachments:
Screenshot.png
Screenshot.png [ 41.15 KiB | Viewed 2805 times ]
Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 10:10 am 
Offline

Joined: Wed Jan 31, 2007 8:09 pm
Posts: 248
Wes, when last I looked at this type of stuff, one cannot waive responsibility for 'gross negligence'

ie if some freak occurrence took place that caused the equipment to fail, and a supervisor failed to spot it, then that is 'negligence' and yes their waive is valid.

However if the equipment is not checked by adequate means at adequate intervals, or if it has clearly been used outside of the specifications of the manufacturer, ie if it malfunctioned in a case where it should have been picked up during what the industry calls 'normal' checks, or if the wall was found to have clearly been built in an inadequate way in the first place, then that is gross negligence and the waive would be invalid.

It's would be quite a task, and I'm not offering to interpret what those 'adequate'; or 'industry norms' would be, but there's the principle...

In the case of a civil case it would then be for lawyers and subject-matter experts to argue about what is 'clear' , 'reasonable' and 'industry normal'.

If you want my 2c - with the threat of civil claim for anything and everything for the sake of it, many business models become unviable - including CityRock I'm sure.
The ethic and spirit of climbing is that one climbs at one's own risk, and is obliged to extend one's own judgement in every situation, and err to caution in cases of doubt. Trying (even unsuccessfully) to sue facilities or landowners is only going to be detrimental to climbing in general.

Ant


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 10:28 am 
Offline

Joined: Tue Nov 30, 2010 2:18 pm
Posts: 32
Real Name: Arnold de Beer
Asking for free legal advice? Good luck! :drunken:

Somebody told me these waivers mean nothing if the gym is "grossly negligent", also i personally think the biggest risk to personal injury at any climbing gym are holds that are not tightened properly and may turn while clipping the first or second bolt.

That being said i love my local gym and couldn't imagine life without it, i think these guys are just trying as best they can to protect themselves from any ridiculous injury claims. :thumleft:


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 10:32 am 
Offline
User avatar

Joined: Sat Jan 08, 2011 10:25 pm
Posts: 195
Real Name: Wesley
Thanks Ant,

So for example:
A lead climber takes a fall and decks because a the bolt/nut holding a fixed draw has come loose and the came out of the wall, because it wasn't inspected regularly. This is gross negligence. If they can show that regular inspections had been done then they are covered.

Robert, I would be interested in how does City Rock performs these routine inspections and what exactly is inspected? Can you make this info public?

Regards


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 10:37 am 
Offline
User avatar

Joined: Sat Jan 08, 2011 10:25 pm
Posts: 195
Real Name: Wesley
McJagger wrote:
That being said i love my local gym and couldn't imagine life without it, i think these guys are just trying as best they can to protect themselves from any ridiculous injury claims. :thumleft:


Seconded. :)

I just wish to gain a better understanding and to ensure the correct measures are taken to reduce risk at my local gym.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 10:57 am 
Offline

Joined: Fri Sep 22, 2006 1:45 pm
Posts: 585
Location: Aberdeen, Scotland
The waiver aside, i think that they have a "duty of care" to customers which cannot be avoided if, as others have said, gross negligence can be shown.

They will do all they can to avoid accidents happening as even if they are found to not be at fault there is always going to be bad press surrounding an incident.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 12:20 pm 
Offline
User avatar

Joined: Thu Oct 01, 2009 1:14 pm
Posts: 71
I'd be really surprised if they don't have a regular safety check of all the equipment. I also think it would be dumb of them to publish that schedule on this site. If something horrible happens in future and they didn't meticulously stick to that schedule then surely it can be argued that the said schedule was not adhered to (even if the date was like missed by a day for example). So they could essentially be shooting their future selves in the foot. Don't really see the upside for them doing this. Wes if you're really that concerned then just go over there and talk to them.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 2:13 pm 
Offline
User avatar

Joined: Mon Sep 03, 2012 6:37 pm
Posts: 341
Real Name: Jonathan Newman
Ok - I am not a lawyer and the following isn't "advice" or a service... [insert usual disclaimer here]

As far as I understand, delictual liability due to negligence can't be waived by signing a form, so one would have to prove that the failure was due to negligence. This is based on my knowledge of the topic - from 4 modules of Commercial Law between 1st and 2nd year - the law students call these modules "law for idiots", similar to what accountants think of the "accounting for lawyers" modules :lol: - so don't take my word as absolute fact or anything.

The other issue may be the Strict Liability section of the Consumer Protection Act - something along the lines of an inferior service without suitable warning allowing the offended party to press criminal charges against the offender. There may be an argument under this section if something goes wrong.

But any way - gyms have to get this stuff right, if they don't and someone was to die the person charged with inspection could possibly be charged criminally with culpable homicide, and the gym reputation would take a hammering and would probably be closed down.

_________________
"Insanity: doing the same thing over and over again and expecting different results." Albert Einstein


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 2:16 pm 
Offline
User avatar

Joined: Mon Sep 03, 2012 6:37 pm
Posts: 341
Real Name: Jonathan Newman
Ps. they may want to reword that last point - if someone uses a double bowline or a reef knot for that matter their wording may not cover them.

_________________
"Insanity: doing the same thing over and over again and expecting different results." Albert Einstein


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 4:29 pm 
Offline

Joined: Fri Nov 28, 2008 1:21 pm
Posts: 233
No Gaz that's what they want...do it their way or not at all...

Frankly they can word their indemnity any way they want - if you refuse to sign it then you cannot climb there.

I agree with what everyone has said thus far, but given the number of newbies & indoor gym exclusive climbers I am quite frankly surprised there are so few injuries. So having as good an indemnity as you can get & super vigilant staff are the way to go! Besides which most of this stuff is quasi legalise with only a smattering of validity - hence the negligence comments. If you can prove that your injury is not your own darn stupid fault then they are in trouble & the comments about the consumer act lead us into very troubled waters if someone is climbing & can claim that they told the gym owners that they know nothing & are thus therefore "under the supervision" of the gym i.e. I did not know any better & they allowed me to go ahead...that could lead to big trouble. Just as well that we are not in the USA or there would probably be lawyers with camera's lined up at the door...

Frankly some of the gyms in SA are looking for trouble with their lack of attention to gear, untrained & inattentive staff & the number of clueless indoor climbers they have milling about. I agree most actual climbers know that their safety is their responsibility - the real concern is when the clueless, careless & downright dangerous emerge from the gym into the bright daylight of the outdoors.

Then again maybe we don't want ALL of those people to last long as then the crags will be overcrowded...

_________________
Really, its not that bad...I think it's my shoes...


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 4:44 pm 
Offline
User avatar

Joined: Thu Mar 23, 2006 10:16 am
Posts: 94
Interesting post. rather flattering actually because i just think of other gyms in SA and how they they are run from a safety perspective.

we try to run a safe and fun business, and i am happy to share some thoughts on this matter.
i agree with almost everything written above.

yes one cannot opt out of gross negligence.
yes its' a rather broad waiver that we now have. the old one btw. had us opting out of gross negligence and people signed it for a decade. except fort the occasional lawyer who crossed out that paragraph.

i wanted a change from the paper waiver because 99% of people never even read the damn thing, most people just filled in their personal details in a big hurry, totally illegible. we then had to decipher the hieroglyphics and retype it for our database.

to me, the waiver more than anything is a reminder that climbing can be dangerous if it's not done right by the participant.
hence stuff like the figure 8 reminder.

yes a lawyer created it for us, but one that climbs - Margaret Edelstein, Snort's wife. so it's all in the family :)

happy to share some maintenance details.
we check lead bolts/QDs and top anchors monthly. replace where necessary.
ditto for top ropes. auto-belay machines.
feel free to ask lee or jean-luc next time you see them what else is on their check list.

i dont actually know what would happen if a lead anchor pulled and someone got injured. it would depend on exactly why it failed. the mondi plywood wall? the raumer anchor? the upat bolt? the petzl dogbone? gross to me means that we did something really stupid that we should have done.
like if 3 customers warned us that the dogbone was all but worn through and we still failed to replace it.

(the pragmatist in me says that hopefully the next lead QD down would catch you if you are higher up. worst case, the new R400,000 triple foam floor we installed a year ago would absorb your fall sufficiently to prevent a serious injury).

most if not all climbing gym stuffups i know of were caused by human error.

Charles, Margaret, Trish, and i personally climb at CityROCK on a regular basis. Our kids or nephews climb there too. I think that's a good sign that the place is safe and well-maintained.

- Robert
PS: i broke an ankle a CityROCK 10 years ago because my belayer wasn't paying attention, i fell off and decked :(


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 5:00 pm 
Offline
User avatar

Joined: Mon Sep 03, 2012 6:37 pm
Posts: 341
Real Name: Jonathan Newman
Old Smelly wrote:
No Gaz that's what they want...do it their way or not at all...


No argument - my point was that I also believe that negligence charges cannot be avoided by waiver, and other facts may come into play if things are shoddy. I haven't set foot in Cape Town in the last 10 years, never mind visiting the gym. I take it its a quality establishment based on what people say, and when I have dealt with MMO I have found them to be of a high standard. My comments are general and hypothetical.

With regards to waivers - I do think they are good protocol. I wouldn't accept accounting or tax work without an engagement letter being signed by the client first, and that has a limitation of liability clause in it, and disclaimers regarding errors etc.

_________________
"Insanity: doing the same thing over and over again and expecting different results." Albert Einstein


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 5:46 pm 
Offline

Joined: Mon Oct 16, 2006 8:53 am
Posts: 868
Location: Cape Town
Real Name: Charles Edelstein
As Robert says and others too.

The waiver is primarily a reminder that climbing is dangerous.

The problem for us is if someone gets injured (seriously or not) and they get a "predatory" or "carnivorous" street-fighter attorney to sue us. Then our waiver, right or wrong would be irrelevant. Some Lawyers do not make their money by being reasonable, they make their money by fighting. The more they fight the more money they make. So they can rack up fees and eventually force us to settle. When do you draw the line. R100k R500k more? And with it we would probably close the business. Contesting claims is often more expensive than what the settlement is worth.

Then the precedent is set and then we are screwed. No matter how responsible we have been, we become a soft target.

I have been doing expert testimony on personal injury matters for more than 20 years. It is my mission to stop biased doctors from inflating claims by giving opinion that injuries are more serious than they are. It is dishonest and rife.

Once in a while, a judge sees through the bull-shit and takes the facilitators to task. Download this matter and read how Doctors and Lawyers can cost the defendant (in this case the tax payer) hundreds of thousands of rands and the claimant got nothing. This is recent!

http://www.saflii.org.za/za/cases/ZAGPJHC/2012/248.html

It is an essential read for all responsible citizens.

One paragraph is particularly scathing: copied below:

Quote:
2. This judgment is concerned with one such example of litigation for the sole benefit of and enrichment of those ‘facilitators’ of access to road accident compensation whom I have heard one judge describe as ‘carnivorous’ and whom I would describe as ‘predatory’.
.

If anyone is interested I can send you an article I wrote called:
Quote:
Ethical Medico-legal reporting: Are we the villains? Or do we merely suffer from compensation psychosis?


It hit the headline in the Star on December 13 2012: Go to IOL website and search for the author Louise Flannagan

Judge slams greed in claim after accident
A JOBURG judge has slammed lawyers involved in a Road Accident Fund (RAF) claim, saying the case was brought solely to enrich lawyers and “experts”.
“There never was any ‘serious injury’ sustained by this road accident victim,” said Judge Kathleen Satchwell of the Johannesburg High Court.
She called the behaviour of “facilitators” to RAF benefits in general “predatory” and said the case was not unusual.
Musejei Motswai was a pedestrian who sprained his ankle in a motor vehicle accident in August 2008 in Soweto. But a claim was filed on his behalf for R390 000, claiming severe injuries for a fractured ankle.
“The attorney signed particulars of a claim founded upon an injury which the hospital records clearly indicated had never existed and had been excluded by hospital investigation.
“This was dishonest litigation,” said Judge Satchwell.
She said the RAF system was supposed to protect those who suffered misfortune.
“Instead the current practice of road accident compensation is both perceived by and utilised as a means of providing a livelihood for administrators, attorneys, advocates and professional experts. The claim and litigation in this matter has been for the sole benefit and enrichment of ‘facilitators’ of access to road accident compensation,” she said.
The case was settled without any compensation being paid to Motswai.
“Settlement only took place on the day set down for trial within the doors of the court.
“The only issue was to ensure payment of costs of the plaintiff ’s attorney and defendant’s administrators and attorney, plaintiff ’s counsel and defendant’s counsel, plaintiff ’s medical and other ‘experts’ and defendant’s medical and other ‘experts’,” said Judge Satchwell. “In short, no quantifiable damages or loss was ever sustained as a result of a road accident, but costs have been incurred for the benefit of all those who feed off road accident victims.”
The judgment lists Motswai’s legal team as advocate C Pottinger, instructed by Wim Krynauw Attorneys, and the RAF’s as advocate TC Tshidada, instructed by attorneys Sishi Incorporated.
Judge Satchwell ordered her judgment, delivered on Friday, to be sent to the Law Society, the Bar Council, the RAF chairperson, the minister of transport and the Health Professions Council of South Africa. She said neither set of attorneys should get any fees for the case and they should pay the experts themselves, but allowed them to argue on this issue at a later hearing.
The judge ordered that the advocates be paid on a magistrate’s court scale of fees rather than the high court scale.
“I do not know what advice, if any, was given by counsel to their attorneys,” said Judge Satchwell.
She ordered that the RAF pay 80 percent of Motswai’s “agreed or proven” damages and 80 percent of his medical costs, but only “after such costs have been incurred and upon proof thereof”.
She also ordered both sets of attorneys to provide the court with copies of invoices and statements for the fees for the advocates and the “experts”, and proof of all those payments.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 6:26 pm 
Offline
User avatar

Joined: Mon Sep 03, 2012 6:37 pm
Posts: 341
Real Name: Jonathan Newman
Very true - its important to remind certain people of how dangerous climbing can be. I heard someone in the US recently died at an indoor wall - apparently they tied in incorrectly or something, even that kid who died on a sport route in France earlier this year - these kind of accidents are tragic for so many reasons, but the biggest in my opinion is that they are avoidable. You can't stop a 2 ton boulder from squashing you while you climb, but you can (and should) check your gear and your knots.

Sad that we live in a world where vultures try to make money off people because they can, not because what they are doing is right. But great to know there are guys out there like you fighting against such claims.

_________________
"Insanity: doing the same thing over and over again and expecting different results." Albert Einstein


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 8:06 pm 
Offline
User avatar

Joined: Sat Jan 08, 2011 10:25 pm
Posts: 195
Real Name: Wesley
mountainmailorder wrote:
happy to share some maintenance details.
we check lead bolts/QDs and top anchors monthly. replace where necessary.
ditto for top ropes. auto-belay machines.
feel free to ask lee or jean-luc next time you see them what else is on their check list.


Thanks Robert, this is really good to know. :)

Thanks for the constructive discussions guys. Quite informative and I think we are all on the same page. Climb hard and climb safe.

- Wes


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Thu Oct 24, 2013 8:57 pm 
Offline
User avatar

Joined: Mon Jul 18, 2005 3:49 pm
Posts: 542
Location: Waterval Boven
mountainmailorder wrote:
- Robert
PS: i broke an ankle a CityROCK 10 years ago because my belayer wasn't paying attention, i fell off and decked :(


Who was that dodgy belayer again? :bom:

_________________
Gustav
Roc 'n Rope Adventures
Waterval Boven
013 257 0363
climb @t rocrope dot com


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 8:21 am 
Offline

Joined: Mon Oct 16, 2006 8:53 am
Posts: 868
Location: Cape Town
Real Name: Charles Edelstein
I was just making sure that Robert behaved going forward, that he realized that climbing is indeed dangerous, and honing my belaying skills.....

And that CityROCK also has climbing risk.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 9:03 am 
Offline

Joined: Mon Apr 02, 2007 9:40 am
Posts: 752
Location: Stellenbosch
Real Name: Nic Le Maitre
It's not the climbing gyms that are dangerous in this country, it's the zip line adventure guys, now they are SCARY!

_________________
Happy climbing
Nic


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 9:24 am 
Offline
User avatar

Joined: Mon Sep 03, 2012 6:37 pm
Posts: 341
Real Name: Jonathan Newman
Nic Le Maitre wrote:
It's not the climbing gyms that are dangerous in this country, it's the zip line adventure guys, now they are SCARY!


School camps also scare me - non-climbers rigging abseils on old gear, not good.

_________________
"Insanity: doing the same thing over and over again and expecting different results." Albert Einstein


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 9:26 am 
Offline

Joined: Fri Nov 28, 2008 1:21 pm
Posts: 233
Good response SNORT!

We need to stop anyone in the entire climbing community from not taking responsibility for their actions. It is important that people consciously agree that they undertake the sport at their own risk & that they are responsible for their own safety. Every climber should know & agree to that. Then if something goes wrong at a crag or on a mountain & they get hurt they alone have been negligent & cannot start suing their climbing partners etc. Otherwise if we start behaving like a bunch of Americans the sport will suffer. I have heard of people taking out personal liability insurance in case something happens to their climbing partners etc. What a load of nonsense! But paranoia sets in early & the insurers will jump at the chance.

The issue remains the same though - if you choose to climb it must be on your head. I understand that the gym has a responsibility & similarly so does a guide, but seriously we should focus on people climbing safely & beat away any of the legalistic profit taking that SNORT referred to because that is the thin end of the wedge. Gyms need to be safe but we need to tell people to sort their stuff out wherever they are otherwise my DARWINIST comment will come true in a big way :thumright

_________________
Really, its not that bad...I think it's my shoes...


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 12:50 pm 
Offline

Joined: Fri Sep 22, 2006 1:45 pm
Posts: 585
Location: Aberdeen, Scotland
mountainmailorder wrote:
gross to me means that we did something really stupid that we should have done.
like if 3 customers warned us that the dogbone was all but worn through and we still failed to replace it.


Pretty sure that's not the case "gross negligence" as I understand it is a law term, used to differentiate from negligence.

And even if it is the climber who was being daft, they can win with a good lawyer.

http://www.dailymail.co.uk/news/article ... ayout.html


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Fri Oct 25, 2013 10:58 pm 
Offline

Joined: Sat Feb 11, 2012 3:50 pm
Posts: 39
@ Chris F

The case you mention is quite interesting in that the person that got injured was not a climber but an employee doing a team building exercise. I personally think that different standards need to be applied in this case and extra measures have to be applied to keep the clients safe.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Mon Oct 28, 2013 2:27 pm 
Offline

Joined: Fri Sep 22, 2006 1:45 pm
Posts: 585
Location: Aberdeen, Scotland
Surely as soon as you climb you become a climber - she had signed the same waiver as anyone else using the gym, an individual visiting the climbing wall for the first (or 2nd or 3rd) time could do exactly what she did and use this case to argue theirs (I know there is a legal term for this but it escapes me).

Personally every time I see beginner climbers being let loose on the bouldering part of the local wall at the end of a lesson it fills me with horror, as it's fraught with risks. Same as seeing ski instructors take newbies through the terrain park, I don't think the risk justifies it.


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Mon Oct 28, 2013 2:34 pm 
Offline

Joined: Mon Apr 02, 2007 9:40 am
Posts: 752
Location: Stellenbosch
Real Name: Nic Le Maitre
Chris F wrote:
(I know there is a legal term for this but it escapes me).


Precedent

_________________
Happy climbing
Nic


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Tue Oct 29, 2013 11:08 am 
Offline

Joined: Fri Sep 22, 2006 1:45 pm
Posts: 585
Location: Aberdeen, Scotland
That's Mr Precedent to you :wink:

(thanks - simple word really, just brain is mince)


Top
 Profile  
 
 Post subject: Re: City Rock Waiver
PostPosted: Tue Oct 29, 2013 2:02 pm 
Offline
User avatar

Joined: Sun Mar 22, 2009 7:34 pm
Posts: 411
Real Name: Everyday Troll
I've not read any of the comments after the main post.

This is what I know:

If an institution is responsible for the gear that failed they can be held accountable in court. The piece of paper you signed IN THIS SITUATION is legally worth the paper its written on. This is what any lawyer will tell you!

The paper is there to make people think they cannot take legal action if anything had to go wrong.

This is from the mouth of a lawyer.

This applies to any indemnity signed in any walk of life.

eT


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 26 posts ] 

All times are UTC + 2 hours


Who is online

Registered users: Bing [Bot], Google [Bot]


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
cron
Powered by phpBB® Forum Software © phpBB Group