Duty of Care

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.

 

A Walking Trip or Mountain Guiding?

A Walking Trip – is any guide or leader suitable?

Not all walking trips are suitable to be led by just any guide.

Walking‘ by nature seems harmless, but there are very specific skills required in certain circumstances so it is important to determine the type of guide or leader you require.

A guided “Walk” which would require a specialised walking or hiking guide training by definition is a trip on-foot which involves any one or more of the following risk profiles:

  • The walk involves ascending and/ or descending what is generally considered to be and/ or what is named as a mountain (e.g. Table Mountain; Wolfberg) or a Peak (e.g. Cathedral Peak, Devils Peak), or a Gorge/Canyon (e.g. Kloof Gorge, Fish River Canyon, Didima Gorge).
  • The route is away from civilisation and there may be no formal and reliable easy communication options such as cell phone infrastructure or these are unreliable.
  • The distance from the nearest parking area, cable station or other permanent means of help involves walking more than one hour regardless if it is on a path or not.
  • The “Walk” may require navigation skills if the area is unknown or if visibility is prone to become limited so requiring good navigation skills.
  • The terrain includes walking in any area which includes steep un-protected (un fenced or no safety railings) terrain, or crossing un-bridged water courses. The walk attains altitudes above sea level of more than 2400m.
  • The walk is of such a nature that there is a need to take food and water to help ensure sufficient energy and hydration among group members and basic emergency equipment, (foul-weather gear, 1st aid kit, head-torches, etc) in order to assist in handling foreseeable problems.
  • The route itself is not on “man-made constructed pathways” (is off-trail) regardless of distance.
  • The venue of the trip means that the participants or at least the leader/s (guide/s) need to have suitable risk management skills to be able to anticipate and avoid problems arising and, should a problem arise, a good enough grasp of  mountain emergency procedures and first aid to be self-sufficient in dealing with minor problems immediately in the field and major problems for at least the time it would take a rescue team to arrive.

There is always some onus of responsibility on the ‘user’ to ensure they contract the correct AdventurePro’s to run their trips for them.

Make sure your guide or leader is suitable.

(C)  Copyright: AdventurePro

Knowledge vs. Safety in Guiding

Guiding a group of clients successfully in any activity requires the Guide to have knowledge of the subject in order to educate and entertain as well as the ability to look after the safety of the clients. These are the soft and hard skills of guiding.

In some industries the hard skills or safety skills are far more pronounced then in others. A guide, who leads white water paddling trips, offers mountain climbs, leads a nature trail, or goes hiking etc, needs to have a very well developed ability to ensure the safety of the clients in what is potentially a high risk activity. The ability to provide the activity safely is far more important than the educational knowledge imparted during the trip. We can think of these hard skills as the Guides “Drivers Licence”, the skills needed to run the physical activity.

The soft or knowledge based skills are less important in Activity or Adventure Guides then a Guide whose primary focus is providing an overview of South Africa to a visitor from the comfort of a coach.

However these skills work together – so where should we place the greatest importance?

Camping near the base of Thabana Ntlenyana

Any Guiding activity that is primarily low risk and focuses on educating the client should have a high importance placed on the soft skills of guiding. A Guide who works from a coach or vehicle primarily imparts knowledge, and the safety of the groups travel is in the hands of the driver. This is what prompted the regulations about driver guides, as a driver of a vehicle can not adequately look after the safety of the physical trip (driving) if they are focusing on educating the visitors about South Africa.

In activities that are primarily high risk, it is imperative that importance is placed on the hard skills, or the ‘Drivers Licence”.

If we cannot guarantee the physical safety of visitors during an activity because we are focusing too much on imparting knowledge then we are failing in our duties as guides. The physical activity MUST take preference over the knowledge imparted in all cases.

In this light, a guide who holds a national qualification in Culture or other knowledge based subject, and who guides outside of the safety of a coach, should also hold an additional qualification that proves their competence to run the physical aspect of the trip, such as, Mountain Walking, Paddling, Dangerous Game, Rock Climbing, Surfing, Kite-boarding, 4×4 etc. Not to do so could be regarded as a failure in our duty of care and could be regarded as gross negligence.

To Summarise:

There is a safety aspect and there is an educational aspect to all guiding. Being able to recognise birds in a coastal forest should not qualify a Guide to take clients to view Bearded Vultures by foot on the Drakensberg escarpment unless you also hold a qualification to enter into that specialist environment.

The safety of clients is fundamental and that is often dependent on the environment we enter into – if you are a qualified SCUBA diver, does that mean you can now fly a Kite Board as well – and walking on flat terrain is very different to walking in a mountainous area?

Training guides in the educational aspects of History, Culture, Nature etc is one thing, training them to escort clients safely is completely different and non-negotiable and the current industry associations recommendations where available should be enforced by Provincial Registrars for all guides.

Are Guides Who Lead Walking Tours Different?

We must define the duties, and examine the hazards faced by “walking  guides” before deciding what qualifications need to be held.

THE TERRAIN

Walking guides” are those guides who lead groups on tours where the primary means of travel is on foot in remote areas, such as game reserves, the coastline or mountains, in fact, any area could be included where the party walks over terrain that has not been modified by permanent fixed walkways, and is remote enough that assistance can not be reached on foot within one hour. This makes it “Walking Guide” terrain.

Clients going on such a trip are in many cases not adequately prepared by the tour operator and guide for a trip into the outside environment. Serious problems arise when the “easy” walk gets more difficult because of unexpected changing conditions. Nobody is prepared for or recognises the changes, but the trip will often go on as planned. Modern civilisation makes the average person inefficient to travel in the outdoors. It strips us of our skills of walking in remote unmodified areas.

Says experienced Tour Guide Dave Sclanders,

I believe that anyone who goes into the outdoor environment should have appropriate walking training and registration. (There is) a problem with large tour operators who have guides who have no ‘Mountain Experience’ taking day tours by foot into the mountains. If tour guides are city graded, that’s where they must stay.

THE QUALIFICATIONS

The usual qualifications that tour guides hold fall into three main categories: Culture, Nature and Adventure. Neither the Culture nor Nature qualification unit standards have any “walking skills” built into them. (Although some providers may add some as extras) There are no requirements that the guide knows how to cope with for example:

Group Leadership on foot in the outdoors,
• Navigation
• Hazardous obstacle avoidance
• Steep ground movement
• Water hazards

Only the Adventure Guide Qualifications include these as specific requirements.

Says Grant Hine of FGASA,

Given the nature of and potential dangers in mountain areas it is imperative that Nature Guides working in this type of “speciality” environment attain the relevant mountain guiding unit standards over and above the nature unit standards, before being legally allowed to guide in these areas.

This can apply to all on foot areas and not just mountain areas, as well as to all categories of guides and not just nature.

Searching rough terrain

ACCIDENT STATISTICS

Very few statistics are available that look at accidents and causes, but there is one good resource, the Mountain Club of SA – Cape Section, which looks at the Western Cape area over the last 100 years or so, (1881-2004), and the statistics are interesting:

Of 1041 accident entries in the database, 645 or 62% of accidents involved walkers, the highest of the eleven categories listed. Of 197 fatalities in the same period, 88 or 45% were walkers. Table Mountain was detailed as the most dangerous area of the Western Cape as the access is so easy, and it is still today the area where the most unsuitably qualified guides are leading walking trips.

DANGER POINTS

In outdoor & or remote areas…

  • Weather: Changes occur much faster and effects are more severe and the guide must know what to do, in all circumstances. Temperatures down to -10° C occur in mountains regularly in winter causing hypothermia. However, high temperatures can also occur, causing hyperthermia.
  • Altitude: 8 in 10 clients who go beyond 2400m above sea level will experience mild (or worse) symptoms of altitude sickness. High Altitude Pulmonary Oedema is possible in the Drakensberg. A person not treated correctly can die within 18 hours.
  • Fitness & Nutrition: The tough outdoors environment takes its toll on people who would be seen as fit on average tours. Energy consumption is higher and dehydration is more likely. Guides need to provide suitable meals and advice as well as closely monitoring the clients.
  • Injuries: Distances to get help are much greater. Often, the nearest help may be 2 hours to 2 days walk away. There are no easy communications and cell phones often do not work. Normal first aid courses are not suitable, especially the current minimum requirement of Level 1. There are specific protocols for alerting rescue teams that are not known or taught to normal guides.
  • Biodiversity in our remote areas is often more spectacular than in the more urban areas. The environment is much more sensitive to our impact. Guides need advanced environmental training to learn about this complex system, not only to tell guests about it, but to keep them safe and preserve it.
  • Distances: Trips led by walking guides vary from less than a kilometre to over 300 kilometres in South Africa. Walks are usually unsupported. A greater degree of fitness, strength and self-sufficiency is needed.
  • Navigation. Practiced skills and local knowledge are essential. Restricted visibility is very possible year round. Compasses are not usable in some remote areas due to magnetic aberrations and Guides must know how to use alternative methods. The survival of a group is dependent on the Guide being able to navigate in zero visibility. And this includes “urban areas” like Table Mountain.
  • Leadership qualities: A walking guide requires better leadership and team skills than a normal guide. Walking guides work 24 hours a day on tour. They are guide, friend, companion, shoulder to cry on, cook, dishwasher, general encyclopaedia and story teller. Many matters have to be attended to during the night, such as chasing away predators and standing guard over toilet visits.
  • Cultural heritage: Remote areas have a rich cultural heritage that requires specific knowledge. Visitors to rock art sites need special training, as do guides walking through sensitive tribal lands.
    10) Steep Terrain: Movement on this type of surface requires specialised training and skills which normal guides are not taught. A “walking rope” is invaluable.
  • Camping: There are no facilities in remote areas so specialised equipment is used. The use of this equipment is not taught to standard Guides, and some of this equipment can be highly dangerous in inexperienced hands.
  • Water hazards: Rivers and other water bodies are a significant hazard to anyone. Many people are killed each year trying to cross rivers incorrectly.
  • Dress: The outdoors requires specific dress codes, especially if one is to stay out overnight. Simple things like inadequate footwear can cause major problems.

A walking guide qualification can be seen as your ‘drivers licence’. Without a drivers license, regardless of how expert you are on the fauna, flora, culture or history of an area if you crash the coach you will kill your clients. If you want to guide on foot, obtain the correct drivers licence first then enhance that with your specialist knowledge. Brilliant knowledge and stories will never make a badly led walking experience safe.

What a walking guide needs to know is learnt from many years in the outdoors and from targeted training – it cannot be learnt from a book in a few weeks. If you lead trips on foot in the outdoors, make sure you hold the correct qualifications — both for your safety and that of your clients.

Long term patient care on a walking trip
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