Legislative liability

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 councils

In 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 consent

A 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.

Alcohol

Teachers 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 equipment

Teachers 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.

Accidents

Should 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.

Cairngorms

  • 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.

Cradle Mountain

  • 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.