The court applies the classic Belgian fault-based liability regime: the victim (or his heirs) must prove a fault, damage and a causal link. It stresses that the mere occurrence of an accident is not enough to infer fault on the part of any given actor.
For the scout leaders, their duty is characterised as an obligation de moyens (inspanningsverbintenis), not a result obligation: they must behave as reasonably careful youth leaders in choosing, organising and supervising the activity, but are not guarantors of the absence of accidents. A similar “obligation de moyens” applies to the climbing hall operator, though with a heightened standard given its professional expertise and its control over the premises and equipment. That duty is particularly stringent toward beginners and inexperienced participants, whom the operator must identify, inform and protect through concrete safety measures and attentive supervision.
The court also draws on the concept of loss of chance: where it cannot be established with certainty that the fault caused the accident or the full extent of the damage, liability may still arise for the loss of a real and serious chance of avoiding the accident or limiting its consequences.
On 28 November 1992, seven members of the Sint-Lambertus scout group from Beersel, all around 17 years old, and three scout leaders went for a morning of wall-climbing at the “Winner’s” climbing hall in Brussels. V., born in 1975, was one of the scouts. Towards the end of the session he suffered a serious fall while climbing, having been belayed by another scout (the “sixth defendant” in the case). He died a few days later from his injuries.
On arrival, the group was received at the reception desk by a Mr Oberlander, who provided equipment, a basic introduction to climbing, demonstrated knots and checked them, and appeared – from the group’s perspective – to be the specialised monitor promised in the hall’s advertising. After some time he no longer remained in the immediate vicinity of the group, though he stayed in the hall. No safety mats were placed at the foot of the climbing wall. The victim’s family and other claimants brought a liability action against:
- the umbrella scouts organisation,- the three scout leaders who organised and supervised the activity,- the belaying scout, and- the company operating the climbing hall.
The claimants alleged in substance that:
- the national scouts federation bore responsibility as the overarching organisation to which the local group was affiliated;- the local scout leaders had been negligent in choosing and organising a risky activity, in failing to ensure adequate professional supervision and safety measures, and in partly engaging in climbing themselves instead of continuously monitoring the youth;- the operator of the climbing hall had seriously breached its safety obligations by not providing a professional monitor, by leaving any guidance to a regular customer present by chance, and by omitting protective mats at the base of the wall;- the belaying scout had incorrectly applied the belaying technique.
The defendants countered that:
- the federation only set general policy and spiritual guidelines and had no say in concrete activities of local groups;- the leaders had chosen a hall that advertised professional monitors and safety, had reasonably relied on the specialised person who received and instructed them, and had at all times remained near the group;- the operator contended that Oberlander was not its monitor but a regular client who, out of goodwill, checked some basic points, and that its safety arrangements were sufficient without mats;- the belayer invoked her status as an inexperienced 17-year-old who had simply followed the instructions given;- there was also, implicitly or explicitly, an argument that climbing involves inherent risks that the participants accepted
Rejection of liability for the scouts and belayer
First, the court dismisses the claim against the umbrella scouts federation. The claimants had not established any specific legal or factual basis for liability. The federation’s role was limited to setting general policy and the “spirit” in which local groups should work; it had no intervention in planning or supervising individual activities. In the absence of a concrete fault attributable to it, the claim is rejected.
Turning to the local scout leaders, the court notes that wall-climbing is in itself a suitable activity for a group of 17-year-olds; virtually all sports involve some risk of injury, and participation is not per se negligent. The leaders could not be expected to be climbing experts capable of independently guaranteeing all technical safety aspects. Their obligation, therefore, was to ensure an adequate framework by third parties.
By choosing a specialised climbing hall that expressly advertised professional supervision by monitors, the leaders had shown the requisite prudence in the planning and organisation phase. When the group was received and instructed by Mr Oberlander, who handed over equipment, gave explanations, demonstrated knots and checked them – and who, in these circumstances, could legitimately be seen as one of the advertised specialist monitors – the leaders were entitled to rely on his expertise. It would be absurd, the court notes, to call in a specialised supervisor and then refuse to follow his instructions.
There was no evidence that the leaders failed to follow Oberlander’s directions or tolerated negligence in the group. Nor, given their limited technical knowledge, could they be expected to question the adequacy of the existing or missing safety measures (such as the absence of mats or the monitor’s later physical distance from the group). When Oberlander apparently decided, after some time, that his immediate presence was no longer necessary and that the group could continue more autonomously, the leaders, as laypersons, were not in a position to challenge that professional judgment.
The fact that, near the end of the session, the leaders themselves also climbed does not, according to the court, constitute a breach of their supervisory duty. They remained in the immediate vicinity of the young people, who by then had some practice, and a modern educational approach with 17-year-olds encourages participation and autonomy rather than continuous, minute-to-minute surveillance from a distance. No defect in their general supervision is shown to be causally linked to the accident. On this basis, the action against the three leaders is dismissed.
As for the belaying scout, the court recognises that V.’s fall must have resulted from an incorrect application of the belaying technique: with correct belaying, a modest muscular effort is enough to hold the weight of an adult. But the belayer was herself a 17-year-old layperson in climbing, who could only attempt to follow the instructions given. There is no indication that she failed to do her best, behaved carelessly, or had any reason to suspect that she was making a mistake or needed to request help. She could not be expected to develop or verify the correct technique on her own. The court therefore refuses to characterise her error as a legal fault and rejects the claim against her.
The court equally notes that no fault is proven on the part of the deceased V. himself. Practising a sport that carries risk is not, in itself, negligent, and even if he had descended by “jumping off” – something not established – this is widely practised in climbing and not inherently wrongful. There is thus no “risk acceptance” in the legal sense that would bar recovery.
Liability of the climbing hall operator
In contrast, the court finds clear fault in the conduct of the climbing hall operator. As the professional exploiter of the facility, it was best placed to know the risks of indoor climbing and had a duty to limit them for customers in a normally careful way. That duty was particularly strict with respect to beginners and inexperienced groups, such as this scout troop, who could not realistically assess or manage the concrete technical risks themselves.
The court considers it the operator’s role to identify such newcomers, ensure they are adequately instructed and supervised, and not allow access to the facilities unless they either have the necessary skills or are properly watched. In this sense the operator must “protect the newcomers from themselves and their enthusiasm,” not only by explaining the risks but by putting in place and enforcing the requisite safety measures.
Two serious breaches are established:
- Lack of proper supervision. The operator itself admitted that it had not provided a monitor to accompany the scouts; essential safety checks were carried out only by Mr Oberlander, described as a regular customer who, purely out of goodwill, verified basic requirements. The court emphasises that if he had not happened to be present, even these minimal checks would not have occurred. Allowing the safety of a beginner group to depend on the fortuitous presence of another client amounts, in the court’s words, to a flagrant violation of the operator’s most basic safety obligations.
- Absence of safety mats at the foot of the wall. The court agrees with the claimants that the failure to place mats is at least careless. While mats may offer little added value for experienced climbers, they are particularly relevant for beginners, whose errors often lead to falls from relatively low heights, where mats can substantially mitigate injuries, especially to the head. The operator’s argument that mats would jeopardise the belayer’s stability is dismissed: the belayer can position herself next to or behind the mats without losing balance.
Regarding causation, the court acknowledges that it cannot be said with certainty that continuous professional supervision would definitely have prevented the incorrect belaying, nor that mats would definitely have avoided the fatal injuries. However, it finds a real and significant probability that:
a monitor permanently present with the group might have corrected the belayer’s technique before the fall, andmats on the floor might have lessened the severity of V.’s injuries, particularly to the head.In this sense, the operator’s breaches deprived the victim and his family of a serious chance of avoiding the accident or reducing its consequences. The operator is therefore held liable for the loss of that chance.
This judgment clearly demonstrates the difference in the duties of the individual actors, which was subsequently reflected in the fact that the claim against the Scout organization and its members was dismissed, whereas it was not dismissed against the operator of the climbing wall. The claim was nevertheless successful also because Belgian law allows a causal link between a fault and the harmful outcome to be established on the basis of the loss of chance doctrine. Some jurisdictions, however, do not recognize the loss of chance doctrine or apply it only in a very limited manner.
