Duty of Care
The concept of a duty of care is interwoven with the principle of negligence. But how does it relate to the adventure guiding industry?
When and how does such a duty arise?
There are various circumstances as well as contracts and statutes (laws) that can give rise to or impose a duty to take care of others.
Let’s start by considering whether an omission (something by law, i.e. common law or statute, you should have done but failed to do) can give rise to such a duty. It is said that ‘a mere omission’ does not give rise to such a duty as opposed to an omission in the process of performing a positive act: an example of the former would be a person not running to assist in putting out the fire to his neighbour’s tent when a stove fell over, whereas it would be a different story if his stove was the cause of the neighbour’s tent catching alight because it started a grass fire that swept across the campsite. However there is no absolute liability and the claimant must proof negligence on the part of the person who started the fire.
A duty may also arise when a guide is in control of a dangerous thing (motor vehicle, boat, belay rope, archery bow), whether moveable or immovable. The extent of any resultant damage must be considered in conjunction with the principles of contributory negligence and voluntary assumption of risk (see below). Water spillage on floors in the process of cleaning them places a duty of care on the owner to warn visitors (e.g. signs and announcements on the public address system) and to take precautionary steps e.g. place card board on wet areas.
The relationship between the parties may give rise to such a duty. A paddling guide will have a duty to ensure a customer is warned of a rapid in the river, before they get there.
Adventure companies also have a duty of care towards their customers: thus they must ensure that customers are fit a healthy to undertake a hazardous activity and must thus scrutinise health documents submitted to them with the required professional care and skill. However the courts don’t require them to ‘become amateur detectives or doctors’. The nature of this duty of care of course gives rise the professional indemnity (‘PI’) insurance taken out by e.g. medical practitioners, lawyers and guides, course travel agents and of course tour operators.
An interesting variation on the duty of care owed by the police came to the fore in a particular case.
The police had been called out to a drowning. Upon their arrival they observed a paramedic carrying out CPR which the one policeman ordered be stopped as he was of the view that the person (a child) was already dead. It transpired not to be the case and the child suffered brain damage. The Police were held liable on the basis of negligence: there is no duty on the police to save people from drowning but the intervention of the policeman in the CPR, given his complete lack of knowledge of CPR, was negligent. It is therefore important to act within the scope of your professional training and skills. Conversely if you have the applicable skill, the court may well find that you had a duty of care, even as a casual passer-by or observer and that you should have rendered the assistance required by virtue of that skill.
Consider this as a professional guide who sees someone doing something dangerous at the same venue you are using. You should at least warn them of the danger.
An example of a statutory duty of care is the duty placed on landowners to ensure that a fire occurring on their property does not escape its boundaries.
It is the breach of the above duties of care that gives rise to negligence, provided such breach involves an ‘unreasonable risk of harm to others’. Conversely there can be no liability if there is no duty of care owed to the claimant.
The law will not hold any person liable for such harm that was not foreseeable, even if caused by such breach. Conversely, if the harm is not foreseeable, there is no duty of care. What is the degree of prudence required? The courts apply the reasonable man test.
The law does place limitations on the foreseeability concept. Firstly, even if it is foreseeable it must be of such a nature that it was likely to come to fruition. Hence the need to do risk assessments for activities.
A court may hold that the reasonable man must consider both the ‘slightness of the chance that the risk would turn into actual harm’ as well as the ‘probable lack of seriousness of it were to occur’. Secondly courts will not award damages if not resulting from physical injury to the person or property of the claimant. What in principle is excluded is so-called ’mere pecuniary loss’ or ‘pure economic loss’.
The above concept of the duty of care linked to negligence must be distinguished from the concept of wrongful intent which is constituted by an intentional act with the full knowledge that the act will cause harm to others and nevertheless proceeding or not refraining from committing an act: the duty to refrain from intentionally and knowingly causing harm to person or property. Allied to this principle is the concept of gross negligence. Not holding the rope to answer a phone call when belaying a climber is a case where it is known that the act will cause harm if the climber falls.
A properly drafted exclusion and limitation of liability clause and indemnity will provide the party being sued protection against a claimant. The courts uphold the exemption clause on the basis that such clauses are commonplace and furthermore commenting on the sanctity of contracts and public policy demanding that fair contracts be honoured. The courts will however interpret such clauses narrowly and where there is any ambiguity, it is likely to be interpreted in favour of the claimant.
It should be noted however that the liability landscape has changed due to the recently enacted consumer protection act, i.e. (1) abnormal risks must be brought to the attention & explained to & acknowledged by visitors/trainees; (2) you can no longer exclude liability for or limit your liability to gross negligence; (3) you cannot exclude liability for injury or death due to your act or omission; (4) you can be exposed to unlimited liability due to defective products/equipment and/or inadequate instructions! Accordingly all terms and conditions, indemnities/waivers, signage & insurance cover must re re-assessed
Contributory negligence is worthy of an article in its own right and so is voluntary assumption of risk. Once the breach of a duty of care, negligence, causality and damage is proven, these two factors are considered in apportioning blame and thus the award of damages. The former is when the claimant has also been negligent e.g. in a motor accident where both parties drove too fast and the latter when the claimant participates with the full knowledge of the dangers involved e.g. bungy jumping or white river rafting.
© ADV LOUIS NEL – BENCHMARK – OCTOBER 2008 (Adapted and shortened by AQN and approved by Benchmark)
So in summary we can see that:
- Guides have a duty of care towards their customers and should provide all necessary help when needed.
- You can be exposed to unlimited liability due to defective products/equipment and/or inadequate instructions! Using equipment you have failed to check or that you know is worn is a breech of the duty of care.
- The help you provide only needs to be within the scope of your training and skills.
- You as a trained and competent person have a duty of care even to other groups using the same site as you.
- Properly drafted indemnity and exclusion contracts will protect you to some extent but you can no longer exclude liability for or limit your liability to gross negligence.
- You have no protection if you do or fail to do something which you know will cause harm.
- Professional Indemnity insurance will provide some protection.
- Abnormal risks must be brought to the attention & explained to & acknowledged by visitors/trainees.
- You cannot exclude liability for injury or death due to your act or omission.