The Outdoor Council of Australia recently commissioned a lawyer’s perspective on the undertakings of outdoor businesses and their obligations in risk management in a legal context. The below information is what has been provided by Bartier Perry Lawyers to help the industry guide its thinking in the legal obligations of risk management and to understand its duties.

To watch a recording of the discussion about these documents click here.

PREPARE - INFORM - INSURE

Led outdoor adventure activities with dependent participants require careful planning on the part of the organiser. Organisers need to take every step to ensure the safety of dependent participants and limit their own legal exposure.

This means first and foremost being prepared to lead an outdoor adventure activity in accordance with the organiser’s legal obligations. It also means ensuring participants are properly informed of the risks and that the organiser has appropriate insurance cover.

This is essential because participants are ultimately relying on the organiser to lead them safely through the activity, regardless of their age or level of experience. In turn, it is the organiser who is potentially responsible for any incidents and injuries which occur during the activity.

Civil liability

Civil liability is a term which covers the situation where a participant, or other person, sues an organiser of outdoor adventure activities for personal injury or property damage which the participant may have suffered. For this reason, any organiser should ensure that it has up to date public liability cover.

Most of these claims rely on the legislation in the state or territory where the accident occurred. The law in the different states and territories is not identical, so it is important that organisers should be very familiar with the relevant law which applies in their state or territory.

To many people, reading legislation is not only dry, but irrelevant. However, organisers of led adventure activities need to realise that the legislation often provides key levels of protection to organisers, and is therefore not only relevant but beneficial.

For instance, all states provide statutory defences for the materialisation of an ‘obvious risk’. There are defences available in the Northern Territory and Australian Capital Territory if a participant has voluntarily assumed a risk, but these are found at common law.

The legislation in New South Wales, Queensland, Tasmania and Western Australia also offer potential defences where a risk to a participant in a recreational activity may be considered “obvious” or where a “risk warning” has been provided by the organisers. Organisers should inform participants accordingly.

All states and territories also grant some form of statutory protection for volunteers from civil liability. Depending what state or territory you are working in, you should ensure that you are familiar with the legislation below:

Prosecutions

Any person conducting a business or undertaking (PCBU) owes a primary duty of care to ensure, so far as reasonably practicable, the health and safety of workers (which is defined broadly) and others, such as visitors and participants.

A PCBU is therefore required to eliminate or minimise such risks as are reasonably practicable.

PCBUs also have safety obligations in relation to the workplace. The workplace covers any place where work is, or is likely to be, carried out. This includes any places where the outdoor adventure activity is being carried out, even if it is off the PCBU’s premises and out in nature.

Volunteer associations are deemed not to be a PCBU, unless they employ people to carry out work for the volunteer association.

The important difference between civil claims and prosecutions is that the organisers’ insurance should cover civil liability, but will not cover fines which may be administered to the organisers after a prosecution. In theory, those fines can be very substantial, and indeed prison terms can be applied in some situations, although in practice this rarely occurs.

A good starting point for organisers is to read and adopt the Australian Adventure Activity Standard and Good Practice Guides, which provide essential information and guidance for the safe and responsible planning of their led outdoor adventure activity with dependent participants. The AAAS and GPGs can be found here.

Practical steps

By far the most important task for an organiser is to properly prepare. This does not only mean preparing the physical activity by way of proper maps, clothing and equipment, but also ensuring that the organiser is familiar with all the legal obligations. We have set out a summary of the key legal obligations which may apply to you (See below).

Closely associated with that obligation is to inform the participants. If relevant in the state or territory you are operating, give them a formal risk warning. If you are operating in a state or territory where that does not apply, you should at least ensure that the participants know exactly what to expect from the activity, including some of the more obscure events that may occur.

Finally, every organiser should make sure that the insurance is fully up to date and covers all relevant contingencies.

Disclaimer: This material is intended to provide general information for our readers. The contents of this material does not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in particular matte

Source
Lori Modde
Outdoors NSW & ACT

Duty of Care at common law [i]

Who owes this obligation?

You may owe a duty of care where it is reasonably foreseeable that your actions or inactions may affect another person, even where there is no contractual relationship between you and the other person. It can also arise through vicarious liability (eg an employer is vicariously liable for the actions or inactions of an employee).

Immunity for volunteers

You may not be liable under this duty if you are considered a ‘volunteer’. [ii]  However, this immunity will not apply in certain circumstances. For example, some states/territories do not protect volunteers where the relevant conduct created a serious risk to the health or safety of the public.

What does this obligation mean?

If a person is harmed in any way, you may be liable for negligence if:

• the risk of harm was foreseeable (ie it was a risk you knew or should have known);
• the risk was not insignificant;
• in the circumstances, a reasonable person in your position would have taken precautions against the risk of harm;
• your negligence caused or materially contributed to the harm caused; and
• weighing all relevant circumstances, it is appropriate the scope of your liability should extend to the harm caused.

While there are various defences that may be relevant if the harmed person was participating in an outdoor adventure activity, such as the ‘dangerous recreational activity’ defence in NSW, QLD, TAS and WA [iii]; there are limits to these defences, which differ in each jurisdiction.

What are the potential consequences for breach?

If you are held to be liable (or vicariously liable) for negligence, the court may order you to pay damages to the injured person.

Generally, damages will be ordered to compensate the injured person for their loss (eg personal injury, property damage or financial loss). The aim of compensatory damages is to put the harmed person, as nearly as possible, in the same position as they were in before the act (or failure to act) occurred.

Where negligence is proven, the injured person will usually recover a single lump sum payment, which is intended to compensate for past and future losses. [iv]

Duties under Workplace Safety Legislation [v]

Who owes this obligation?

PCBU

Any person conducting a business or undertaking (PCBU) has a primary duty of care to ensure workers and others are not exposed to a risk to their health and safety.

A PCBU is a broad concept to describe all forms of modern working arrangements, not just an employer-employee relationship.

So, what is a business or undertaking? The legislation does not define these terms, but the Interpretive Guidelines provide the following:

• Businesses are enterprises usually conducted with a view to making a profit and have a degree of organisation, system and continuity; and
• Undertakings may have elements of organisation, systems, and possibly continuity, but are usually not profit-making or commercial in nature.

This means a PCBU can include companies, partnerships, unincorporated joint ventures, sole traders or self-employed people, not-for-profit bodies (with one or more employees) and cooperatives.

Exception for volunteer associations

Volunteer associations[vi] are deemed not to be a PCBU, except if they (or members on behalf of the association) employ a worker (eg engage or pay administrative staff).

Other duty holders

Other workplace health and safety duties are imposed on other persons under the legislation, like persons with management or control of a workplace, contractors, workers and volunteers.

What does this obligation mean?

Primary duty of care

A PCBU owes a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of:

• workers while at work (eg employees, contractors or volunteers); and
• others are not put at risk from the work carried out as part of the business/undertaking (eg visitors and participants).

This involves responding to risks to health and safety by:

• eliminating such risks so far as is reasonably practicable; and
• if not reasonably practicable, minimising such risks so far as is reasonably practicable.

This means a PCBU can breach their primary duty of care where there is simply a risk to the health and safety of workers (or others) without the need to show that an accident or injury has actually occurred. This is unlike a common law duty of care which requires there to be harm and that harm to be caused by a person’s actions (or inactions).

Other relevant duties

PBCUs may also owe other duties, including duties relating to:

• the management or control of workplaces;
• the management or control of fixtures, fittings or plant at workplaces; and
• consulting workers who carry out work for the business/undertaking and who are (or are likely to be) directly affected by a health and safety matter.

There are also duties that workers and other persons at the workplace owe under workplace safety legislation. This includes the duty to take reasonable care that their actions (or inactions) do not adversely affect the health and safety of other persons.

What are the potential consequences for breach?

Maximum penalties for breach of duties under the model Work Health and Safety Act 2011 (Cth) are set out below:

• individuals – five years’ imprisonment or $300,000 fine or both;
• an individual conducting a PCBU- $600,000 or five years imprisonment or both;
• an officer of a PCBU- $600,000 or five years imprisonment or both; and
• a body corporate – a $3,000,000 fine.

Statutory guarantees in relation to services

Who owes this obligation?

If you supply, in trade or commerce, services to a consumer then you give certain guarantees (known as ‘consumer guarantees’) in relation to those services under the Australian Consumer Law (ACL).[vii]

‘In trade or commerce’ generally means conduct which is commercial in nature and has a dominant objective of profit-making. A not-for-profit organisation can still engage ‘in trade or commerce’ if it performs a business or professional activity.

A person (or a business) will be considered a ‘consumer’ if they purchase services:

• that are of a kind ordinarily acquired for domestic, household or personal use or consumption; or
• that cost less than $100,000.

What does this obligation mean?

If you supply goods to consumers, you guarantee that those services will be:

• provided with due care and skill;
• fit for any specified purpose (express or implied); and
• provided within a reasonable time (when no time is set).

This means if a person is harmed in any way because of the services rendered, they may be able to take action against you on the basis that you failed to comply with a consumer guarantee (eg the service was not provided with due care and skill).

Exclusion for recreational services

Ordinarily, the ACL does not allow you to contract out of these consumer guarantees. However, the ACL does permit a term in a contract to exclude, restrict or modify any liability for failure to comply with a consumer guarantee for the supply of a recreational service.[viii] This exclusion does not apply if significant personal injury is suffered by a person that is caused by your reckless conduct of the recreational service.

What are the potential consequences for breach?

Under the ACL, a consumer has several remedies if the services they acquire from you fail to comply with any of the consumer guarantees.

This includes the consumer bringing an action against you to recover damages for any loss or damage suffered by the consumer because of your failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage because of that failure.

References

[i] Major legislative changes have modified this common law duty in each state/territory. The key legislation includes: Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT). Although this legislation has made similar changes, they are not uniform. This means that each state/territory essentially has its own statutory code of liability for negligence.

[ii] Every state/territory defines ‘volunteer’ differently. However, in general terms, ‘volunteer’ is defined as someone who carries out community work for no (or sometimes, limited) remuneration.

[iii] Other examples of relevant defences include: voluntary assumption of risk at common law (ie the harmed person understood and accepted the risk of injury); assumption of ‘obvious risks’ under statute (ie the harm suffered was an obvious risk); contributory negligence (ie the harmed person contributed to the harm they suffered); and exclusion of liability by notice (ie liability was limited or excluded by notice or disclaimer).

[iv] In all jurisdictions, the legislation places certain limits/ceilings on the recovery for economic losses. In some jurisdictions, there are also limits/ceilings on recovery for non-economic losses.

[v] The principal legislation governing safety for workers is the model Work Health and Safety Act 2011 (Cth). Each state/territory has only adopted the legislation in the standard form, except and VIC and WA.

[vi] Section 5(8) of the model Work Health and Safety Act 2011 (Cth) defines volunteer associations as: “a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.”

[vii] Consumer protection provisions are in the ACL, which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). While the Competition and Consumer Act 2010 is a national law, it is important to note that each state/territory also provides additional consumer protections within their own fair trading legislation.

[viii] In South Australia and Victoria, the term modifying restricting or excluding a guarantee otherwise implied in the contract must be brought to the attention of the consumer in advance. In South Australia, the consumer must also agree to the term in advance.