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.