Legal aspects of outdoor leadership
- Legislative liability
- Claims and liability
- Disclaimers, waivers, consents and warnings
- Legal action
Increased civil litigation in recent years combined with wider media coverage has highlighted the responsibilities of leaders involved in outdoor activities. A leader who assumes responsibility for others, whether children (school groups, youth groups, church groups, scouts, guides, etc.) or adults (walking clubs, friends, community groups, etc.), is subject to certain legal responsibilities. The responsibilities of leaders arise in a number of ways, and are defined formally through legislation, regulations and legal precedent.
This chapter contains a summary of legal advice available on this subject at the time of publishing. It contains discussion of legal issues which leaders should take into account before leading groups. If necessary, leaders should seek professional advice on any matter they are concerned about, before leading groups. Most bushwalking clubs have honorary legal advisers, and many have solicitors or barristers among their members, who may be good starting points for more specific or detailed advice.
Negligence is the omission to do something which a reasonable person would do, or the doing of some act which a reasonable person would not do. For an action to be brought in negligence, however, there must be a duty of care owed to the person claiming to be affected by the act or omission. The duty of care on the part of a leader is to take reasonable care to avoid acts or omissions which he/she can reasonably foresee would be likely to injure persons who are closely and directly affected by them. The standard of care is that of a reasonable or prudent leader. Whether this standard has been breached is one of fact in the circumstances. For example, the precautions and safeguards required to be taken by persons carrying out a surgical operation would not be required of a person rendering first aid at the scene of an accident. Similarly, the precautions required of a person having the care of adults will differ from those demanded of a person in charge of children.
An action for damages in negligence could be brought against a leader in circumstances where that leader owes a duty of care to some person, and has breached that duty by an act or omission which results in the death of or injury to that person, or loss or damage to his/her property. Negligent acts or omissions are not limited to physical injury, and can extend to the suffering of nervous shock. (Nicholas vs Osborne & Ors (i.e. other respondents), 1985 Victorian County Court, unreported).
It should be emphasised that a leader is not the guarantor of a party’s safety, although the law may hold that he/she owes a greater duty of care to a party member because of experience than a party member would to a fellow party member who may have little or no experience. No amount of expertise can hide the fact that outdoor activities are potentially dangerous and accidents can happen to anyone.
There are two main defences to negligence claims:
- Contributory negligence, which is the failure of the injured person to take reasonable care for their own safety and can result in damages being reduced.
- Voluntary assumption of risk, which is a complete defence. However, the difficulty with this particular defence is the need to establish that the affected person (plaintiff) has evidenced an apparent willingness to absolve the defendant altogether from any liability, and has chosen to run the risk personally. The courts may be reluctant to make such a finding.
Legal liability may also arise through breach of contract. An arrangement whereby a leader agrees to take a group on an outdoor activity for a price (i.e. in return for payment) could be a contract, whether written or verbal. Such contractual arrangements may have terms expressed or implied that the leader is competent and experienced, proper equipment will be provided, safe methods of operation used and necessary approvals obtained. Breach of any of these terms may give rise to legal action.
The contractual aspect of an activity should be considered when effecting insurance cover. There can be concurrent or simultaneous liability in both contract and negligence from the same incident.
Federal and state crimes acts impose potential jail sentences for persons who, without lawful excuse, recklessly engage in conduct which places or may place another person in danger of death or cause serious injury or who by negligently doing or permitting something to be done, causes serious injury to another person. For instance, the managing director of an outdoor centre, the Lyme Regis Challenge Centre in England, received a jail sentence after being found guilty of manslaughter by criminal negligence when four 6th form students drowned while undertaking a kayaking expedition across Lyme Bay in Dorset. (R (The Crown) vs Kite & Ors 1994, Winchester Crown Court, unreported). A New Zealand court found Kawarau Rafts, one of its directors and a senior guide guilty of negligent operation likely to be dangerous to the public. (28 November 1995, District Court Queenstown, New Zealand, unreported).
Venue managers, tour group operators and employers of staff involved in outdoor activities should familiarise themselves with their obligations under relevant occupational health and safety legislation and also the wrongs act or equivalent applicable to their state or territory. Heavy penalties may apply.
Teachers, principals and school councilsIn addition to the professional obligation a teacher owes to his or her students, there is a legal duty of care for principals and teachers to take such measures as are reasonable in the circumstances to protect a student in his or her care from risks of injury that the educator should have reasonably foreseen.
In outdoor activities this duty has two main aspects:
- To provide adequate supervision. This not only requires protection from known hazards, but also protection from those risks which could arise (i.e. those that a teacher should reasonably have foreseen) and against which preventative measures could be taken.
- To provide safe and suitable equipment, facilities, buildings, locations or shelter, etc.
In both aspects, the duty of the teacher is higher than that of the ordinary citizen, in that a teacher is obliged to protect a student in his or her care from harm, or to assist an injured student, while an ordinary citizen may choose to do nothing in a similar situation.
In the case of government schools, the government may be held liable to pay compensation for injury or damages caused by the negligence of its servants or agents. There is legislation to this effect in all states. It is therefore important that full details of accidents that may result in claim are recorded and retained on file at the school. School council approval is usually required for camps and adventure activities. Before approving such an activity, the school council and or principal need to consider:
- contribution of the activity to the school curriculum
- adequacy of the planning, preparation, organisation in relation to school policy and education department or similar body policy and guidelines
- provisions for the safety and welfare of students (including any with disabilities or impairments) and staff
- experience and competency of staff relevant to the activities being undertaken
- adequacy of the student supervision and the cost.
Parental consentA parent must provide written consent for his or her child to take part in an excursion and any particular adventure activities that will be undertaken during the excursion. Parents asked to sign consent forms must be given sufficient information about the nature of the proposed activity, the risks involved and the degree of supervision to enable them to make an informed decision to ensure that the school obtains a proper consent.
The consent should authorise the school to obtain emergency medical treatment for a student, with the parent agreeing to bear any associated costs. The parent should consent to the student being sent home from the excursion in the event of serious misbehaviour. It is also essential that excursion staff have adequate and up-to-date medical information about students who are participating in the activity.
If the consent form purports or seeks to exclude liability for any injury caused to the child, then it has absolutely no effect. The child has a right of legal action of his or her own, which is not owned by the parent, and therefore cannot be signed away by a parent.
AlcoholTeachers accompanying school excursions during or outside school hours are on duty for the entire period of the excursion. Thus, drinking alcohol during an excursion could be considered a breach of regulations resulting in:
- allegations of negligence or improper conduct which may result in loss of Crown protection
- worker’s compensation rights being placed in jeopardy
- employer disciplinary action.
Student equipmentTeachers issuing obligatory lists of items to be taken on excursions must ensure that all students have all the necessary equipment or clothing, which meets the stated standards.
AccidentsShould a mishap occur be sure to document all relevant information. Avoid collusion with other teachers, that is, each teacher should write and sign his/her own report.
Endeavour to foresee all possible problem situations and be prepared for them. Those with leadership qualifications in outdoor activities would be considered experts and as such a higher standard of care would be expected of them. Their anticipation of situations must of necessity be more acute than that of an untrained person. They must be fully aware of both subjective and objective dangers:
- Subjective dangers are those that are potentially under the control of the leader (e.g. the correct choice of equipment and the route to meet the requirementsof the party in safety).
- Objective dangers are those over which the leader has no control (e.g. blizzards, floods, storms).
There is little doubt that most accidents result from subjective dangers, such as poor planning and inexperience. Two accounts of fatalities are well documented. They are the Scottish Cairngorms tragedy (five children and one teacher died) and the Footscray Technical School Cradle Mountain, Tasmania tragedy (one student died). A number of recommendations were made after the enquiries into their causes. There is a striking similarity between the recommendations from both inquires, which should be heeded by all leaders. These issues are also discussed in Chapter 6.
- More care should be exercised in the organisation of parties of young children in outdoor activities with regard to fitness and training.
- More detailed information regarding activities should be given to parents and acknowledged by them.
- Expeditions should only be led by fully-qualified and well-experienced instructors.
- Suitable areas for this sort of expedition should be designated.
- In the event of disaster there should be close liaison between the authorities and parents concerned.
- Improved information should be available, particularly to school parties, of conditions likely to be met.
- Care should be given to the type of equipment and clothing to be taken in the light of these conditions.
- Consideration must be given to the size of parties and the student/teacher ratio.
- Leaders must know causes and effects of hypothermia and its prevention and treatment.
- Accommodation planned must be adequate.
- Improved communications must be established.
Be a prudent leader and:
- plan the activity thoroughly
- consult experts for advice on all aspects of the activity
- assign qualified and/or experienced personnel to conduct and supervise the activity
- analyse training and leadership methods
- conduct the activity in a safe area having regard to the capabilities and experience of participants
- use appropriate transport and approved equipment
- obtain necessary permits and consents from relevant authorities, employers, parents, etc. and notify authorities (e.g. police, forestry staff, rangers, etc.) of the proposed activity, location, duration and size of the party
- know the health status of each member
- obtain medical approval from parents or party members where the member has a medical condition which may require treatment, or where the member has suffered a serious illness or injury
- conduct a pre-activity briefing for leaders and participants
- inspect all group and participants’ equipment
- arrange medical or first-aid treatment in anticipation of injury
- follow accepted first-aid procedures in the event of injury
- make arrangements for emergency situations
- keep accurate records of all aspects of activity, especially accidents
- plan for all likely weather conditions and obtain up-to-date weather forecasts
- have access to modern communications equipment (e.g. mobile phones, beacons, GPS, etc.) but don’t use them unless really necessary as they can detract from the experience.
Advice from a competent insurance broker should be obtained as to the appropriate level of insurance and types of insurance policy necessary. Policies which may be appropriate include:
- general or public liability insurance
- product liability insurance
- Workers Compensation or WorkCover insurance
- sickness and accident insurance
- non-cancellable disability insurance
- health insurance
- insurance for volunteer workers
- ambulance cover
New South Wales is the first and to date the only state in Australia to provide no fault compensation for victims of certain sporting injuries, in the Sporting Injuries Insurance Act 1978.
Disclaimers, waivers, consents and warnings
It is not possible to automatically exclude liability from the tort of negligence by use of a waiver, consent, disclaimer of liability or exclusion clause. Common Law imposes a general duty to take reasonable care. The extent of the duty will depend upon the particular circumstances, and a disclaimer of liability (and whether signed) is one relevant circumstance which would need to be considered by a Court when determining liability. It may also be considered when determining whether a duty of care actually exists in those circumstances.
Such clauses must be specifically drafted to suit the circumstances at hand. They should not be borrowed from another context, as this may mean they do not adequately cover the specific issues. An inappropriate clause may result in the possibility of liability being greater. Waivers and releases are based on contract law. They must be drawn to the attention of the person signing the form. They are unlikely to be effective where the person relying on the release has been found to be grossly negligent. In some circumstances however they have been held to be effective and so should be incorporated into standard documentation.
MinorsContracts may not be enforceable against minors in many circumstances. Generally minors do not have capacity to enter into contracts and accordingly waiver forms signed by minors may have no effect in excluding liability. A waiver of liability signed by the parent on behalf of the minor may also not have any effect in excluding liability.
WarningsWarnings are more directed at reducing or eliminating a person’s duty of care and usually arise in circumstances where a contract is not available. A warning sign by an occupier which tells of the existence of danger may satisfy the standard of care or go to the duty of the discharge, and thus limit or extinguish potential liability in tort. Conversely the failure to erect such a sign may lead to a finding of negligence. Australian cases relating to warning signs include: Harper vs Department of Conservation, Forests & Lands, Victorian County Court May 1998, unreported; Nagle vs Rottnest Island Authority 1993 (177CLR423); Romeo vs Conservation Commission of the Northern Territory 1998 CLR.
In all states of Australia it is possible for voluntary associations to incorporate. It is strongly recommended that all groups involved in outdoor adventure activities be incorporated under either associations incorporation legislation or the corporations law. It is important to make it clear that any contract entered into is on behalf of the organisation and members, and not by the individual who personally signs it. If an organisation is unincorporated, members of a committee of management may find themselves personally liable for contracts on the basis that they were the persons who entered into the contract. Note however that incorporation is not a defence to a claim against an individual who was ‘personally’ negligent, in an action for damages for negligence. It does however offer some protection to other members of the organisation who were in no way connected with the negligent act or omission.
Legal aspects of first aidWhen rendering first aid you are required to act with reasonable care and common sense and are required to render the first aid to the best of your ability, but within the limits of your training and qualifications.
ConsentIt is preferable to obtain the consent of the patient, where the circumstances permit, prior to treatment. The patient should also be acquainted with your particular experience in medicine or first aid. If the patient is given this information and consents to your treatment, he/she cannot expect a higher standard of skill than your training provides. You should, however, act sensibly. If the patient is unable to give consent (e.g. due to unconsciousness) or cannot give legal consent (e.g. an infant or person of unsound mind) and the urgency of the situation warrants immediate treatment, first aid should be given. Where further medical treatment is required, the decision as to when, where and by whom further treatment is to be given should be left to the parents, guardians or next-of-kin
If consent is refused, do not treat the patient unless ordered to by some person in authority or unless the patient requires urgent medical treatment. Treatment should then only be given after the patient is advised of the possible consequences of refusal. It should be borne in mind that certain treatments are restricted to qualified medical practitioners or nursing sisters, such as administering prescription drugs and giving injections.
DeathOnly a qualified medical practitioner can certify that a person is dead. Therefore, if treatment is started, it should not be stopped until a doctor certifies death or a person in authority orders the treatment stopped. However, in some situations where it appears that the casualty is dead, a decision must be made whether to start or stop treatment (as the case may be).
The generally accepted signs of death include:
- fixed dilated pupils, not responding to apparently effective resuscitation efforts
- absence of spontaneous heart beat (palpable carotid pulse) in spite of prolonged resuscitation
- rigor mortis (stiffening of the body) is a late but reliable sign of death.
When to stop heart massage in the absence of return of spontaneous heart beat is an individual decision based on circumstances, but there should be very good reasons for stopping in less than one hour. Only in exceptional circumstances should artificial respiration be stopped when there is spontaneous heart beat but no breathing. Resuscitation should never be stopped when medical aid is imminent. It should be noted that adequate heart massage should produce an artificial carotid pulse.
Injury to rescuersIf a rescuer is injured in the course of rescue, that person may have a claim against the injured person and or the person whose negligent action caused the injury which necessitated the rescue action. Therefore, even where the rescuer is fully aware of the nature of the risk and of the extent of the danger, if the rescuer is injured during the rescue he/she can, in most cases, claim damages against the negligent party. It may be possible, however, for the negligent party to show that the rescuer did not, in all the circumstances, take reasonable precautions for his/her own safety and thus it may be held that the rescuer contributed to his/her own injuries. In an action for damages by the rescuer, this would result in a reduction of award for damages based upon contributory negligence of the rescuer. These type of circumstances underline the position that negligent leaders owe a duty of care, not only to those who are injured by their careless acts, but also to those who go to their rescue and suffer as a result.
An action in negligence must usually be commenced by the aggrieved party within six years from the date of the accident, although it is possible if certain prerequisites are satisfied to extend the period in which an action can be commenced. For example, an infant or person of unsound mind who is injured may be able to commence an action more than six years from the date on which the right of action lapsed (e.g. Limitation of Actions Act 1958 in Victoria, and similar legislation in other states and territories).
Considering the possibility of an action being commenced some years after an accident and the fact that legal cases often take several years to come to a determination, it is advisable to retain all the information relating to an accident for a period of say nine years. This is especially so where the accident results in some personal injury. If a full report is made to the police, this will often be sufficient as the report should be retained by the police. Similarly, if an accident results in death, the evidence and findings of the Coroner’s Inquest will be recorded and may be obtained from the relevant public office.
It is advisable, however, to keep your own records. These should contain the full name, address and age of the injured party, date, place and time of the accident, names and addresses of all witnesses and a full account of events leading up to the accident, the accident itself and what occurred following. Signed statements should also be obtained from all witnesses if possible.
References and further reading
Nicholas vs Osborne & Ors (i.e. other respondents) 1984 Victorian County Court unreported. Cathedral Ranges nervous shock.
Galer vs Kawarau Raft Exhibitions Pty. Ltd. unreported Queenstown District Court (NZ) 28th November 1995. Rafting fatality—criminal liability.
Harper vs VG Conservation Forests & Land unreported Vic County Court May 1998—falling tree failure to erect signs.
Nagle vs Rottnest Island Authority 177CLR423 diving failure to erect warning signs.
Nowak vs Waverley Municipal Council ART 80.200 exposed sprinkler.
Romeo vs Conservation Commission of NT 151ALR263 cliff failure to fence top.
Wilmot vs State of South Australia 1993 (ATR81.259) trail bike rider.
Lillie vs Alpine Resorts Commission & Anor 1998 VICSC42 3rd April 1998 collision between snowboard rider and skier.
Mountain Cattlemens Association of Vic vs Barron 1997 ATR81.423 horse accident.
Inverell Municipal Council vs Pennington 1993 ATR 81.234 swimming pool accident.
Manly Municipal Council vs Moylan NSW Court of Appeal 15th June 1995 unreported diving accident in dam.
Munroe vs Anglican Church of Australia NSW Court of Appeal unreported 14th May 1987 camping equipment trailer accident.
Dylan vs Ayres 1992 112 FLR 29 parachute accident.
Toutounji vs Girl Guides Association of SA Inc Supreme Court of WA 27th November 1998 flying fox.
CCH Australian Torts Reporter first published 1984 loose leaf regularly updated.
Hallenstein H. & Miles D. 1991. Legal Liability: Outdoor Education, 2nd edn. Leo Cussen Institute, Melbourne, Victoria, Australia.