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COULD YOUR OUTDOOR WILDERNESS-ADVENTURE THERAPY PROGRAM AFFORD A LAWSUIT ?

Posted by Andrew Stuart* (Youth & Community Development Consultants) on

COULD YOUR OUTDOOR WILDERNESS-ADVENTURE THERAPY PROGRAM AFFORD A LAWSUIT ?

An Organisation’s Motto Should Be: “Your Safety is Our Commitment to You”

Caveat:  Generally speaking, this is a topic that most people don't like to talk about, let alone like to read about. However, in my own defense, good risk management and safety awareness are essential to provide effective and professional adventures, especially in the murky realms of adventure therapy (or wilderness therapy).  Not only does good risk management minimise accidents and incidents during activities, it is also a vital component of ANY business model. Risk management assists with strategic and operational management, program planning and delivery, and likewise people and resource management.  It is an essential good business practice, whether we like it or not.

Background:  We have been delivering outdoor adventure activities, therapeutic recreation programming, adventure tourism, and wilderness therapy expeditions since the early 80's here in Western Australia.  We have many fond memories conducting 10-day and also our 15-day wilderness experience programs (particularly with 'at-risk' youth) with the Western Venture Program, Wilderness Ventures, as well as with the WYLD Camps Project.  In nearly 4 decades of working outdoors, we have never had an accident nor an incident that we couldn't handle ourselves. Whilst we have had heaps and heaps of minor first aid situations, even a mild concussion or two (whilst wearing helmets of course), we have never killed any of our young participants, nor have we ever had to call an ambulance. Interestingly enough, we have also never had a snake bite either - although we have come close several times!

In 2001, through our work on programming safety, we were instrumental in enabling a not-for-profit community organisation that we worked on, in winning both State peak bodies 'Risk Management Best Practice Awards'.  So, at this point in time, we are comfortable in stating the fact that - so far, we have a 100% safety record.  However, you'll notice that we said - thus far!  Interesting enough, we are prepared for it, and so we should be! 

We all work across the outdoor adventure and therapeutic adventure industries with varying degrees of risk and unique potential hazards, often within natural dynamic systems (eg. rafting), moreso often in very difficult and challenging environments. However, any business, group, or organisation’s primary goal ‘should’ be to help keep you, and everyone else (including their own staff) working on the activity as safe and healthy as possible.

It is also well know and widely acknowledged that often the most dangerous activity undertaken on an outdoor adventure program is actually driving participants to and from program activity sites. The majority of therapeutic outdoor adventure programs around the world are considered well in good standing and of good quality, however they are not considered ‘safe’.  Why?  Because, there is no such thing as a safe outdoor adventure activity - given that all adventure activities contain an element of risk and we need to stop calling our activities or our program as being “safe”.

Surely, we should all conduct our activities with this primary philosophy in mind that: “all injuries are preventable”, and so they should be. However, accidents do happen - that’s why they are called an unforeseeable ‘accident’. There is a very real difference in a court of law.

Consider this, “Federal and state crimes acts could 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 example, 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”   (Source: Nov 28, 1995, District Court Queenstown, New Zealand in ‘Bushwalking and Ski Touring Leadership’ [2000] p.279)

However, we all must remain vigilant and consider that even on our own ‘excellent’ programs we could all potentially have a serious accident, or worse. There is inevitably a strong public reaction and outcry when there are deaths in outdoor adventure programs, and this certainly was the case particularly after some of the worst multiple fatalities we have witnessed in decades around the world. For example the tragic Mangatepopo River canyoning fatalities in New Zealand. 

What I don't like about the 'Backpackers' American based magazine's style of writing in this story, is that it smacks of the whole litigious American way of a "culture of blame".  In Australia and also New Zealand, the outdoor industry is not the same.  Hopefully, as an industry, we have a little more compassion and empathy towards those who do tragically go through something as horrific as this example.

The REALITY of the facts of that same story, written in a slightly different way: "On the afternoon of April 15, 2008, Elim Christian College classmates, all smiling, feeling strong and kitted out in wetsuits, just hours before they died on a canyoning adventure in the Mangatepopo Gorge. Tragically, the OPC instructor Jodie Sullivan made the decision to leave a rock ledge above the Mangatepopo Stream and enter what has been described as a "maelstrom" of water.  She ordered her group, some of them roped in pairs, to follow at five-minute intervals."   [Legal Comment: "The Coroner commented that an element of risk in outdoor activities was appropriate and that safety in outdoor adventure can never be 100% guaranteed. However proper risk identification and management is vital to avoid serious injury and death."]

On a more human and compassionate style of reporting on that investigation, we can only imagine the extent of the emotional strain on the Outdoor Instructor, Jodie Sullivan, and how these tragic set of circumstances must have played out on that exact day – this tragedy will never leave her. You don’t simply “get over it” instead, you carry this video in your head for the rest of your life. This is just one of the reasons, why we hate that phrase, “moving forward” in fatal situations like this one.  My concern, is also for that outdoor instructor (OPC staff member) and her own mental and emotional stability, in the long term.  As an industry, we rarely talk about this sort of thing, or do we?  It's just never documented very well. However, this particular canyoning case was, of which has enabled us all to view those lessons learned. (Coroner's Report)  The OPC (Hillary Outdoors Education Centre) has undergone some major procedural changes in their safety & risk management planning, these include lessons learned from this tragedy in 2008.

What does need to occur instead – is that you need to process it, come to grips with the reality of what actually happened, and you need to replace those dysfunctional maladaptive coping behaviours of your own, with adaptive and healthy coping behaviours instead. Sadly, before individuals in this type of situation can ever move on, they first need to actually forgive themselves.  This is not an easy process for some people to do!  As an industry, do we pay anywhere near enough attention to this long-term "processing the experience" when things do go drastically wrong for our staff members?

On the other side-of-the-coin, it is often the very same outdoor leaders that often live in fear of something like this happening to them. Fear, that is, of being judged and blamed and especially a fear of being blamed unfairly.  Whilst this fear is often felt most strongly by those operational staff out in the field, those who by the very nature of their job, are at the coal-face of high risk activities and also often at the mercy of their organisation's management issues.  Sometimes outdoor instructors are even threatened with disciplinary action or even legal action for their parts in accidents. This is not always helpful, nor does it seem fair! 

Since these outdoor leaders do the "sharp-end" of the organisation's operational work, it is important to understand from them about how they think that things really do work better at the "sharp-end" of the business activities. Outdoor leaders need to get involved in setting the guidelines for establishing and managing 'safer' outdoor adventure activities and programs.  To accomplish this in the context of minimising the risks and keeping our clients safe, we possibly need to enhance our understanding of potential dangers associated with high-risk outdoor adventure activities.  Leaders need to give their participants feedback - often. It's the same for those staffing their Leaders out in the field. People naturally like to be told how they're doing in the eyes of the person who's leading.  As a part of any organisation's quality training and staff development, they also need this feedback loop.

What about when something goes terribly wrong, as in the example of these canyoning fatalities. The ultimate judge of whether an action constitutes gross negligence is the judiciary system.  Of course, some people have been prosecuted for gross negligence, such as rafting whilst under the influence of alcohol.  However, some others have been prosecuted and even convicted for what many would now term ‘honest mistakes’, perhaps actions or decisions that many others in the very same situation, with similar training or experience could have made, at some time or other in their own career.  But in the outdoors industry, these cases are relatively rare.  Over the past 40 years in Australia and New Zealand, for the numbers of outdoor instructors, guides or program managers, that have been convicted - the rates are very low.

In comparison, from around the world in other cases involving outdoor accidents/fatalities, individuals have faced charges, which were later dropped, and others have even been acquitted.  In the outdoors industry, relatively few judgments are made by the judiciary against 'front-line' outdoor leaders, but it can happen.  This is especially true for accidents where there is a clear very sign of reckless or grossly negligent behaviour.  What constitutes ‘gross negligence’ is a matter of legal judgment and interestingly enough, this also varies between states; however, some do not differentiate between ‘negligence’ and ‘gross negligence’, while other countries have special exceptions for some professionals for ‘minor’ cases of ‘negligence’.  Every country's legal system is different.

This is where the 'style' of the Backpacker Magazine's article is NOT helpful.  Being blamed, in the context of a fatality or a safety investigation, is contrary to the whole purpose of a safety investigation. Trust is built up slowly between people, especially in outdoor organisations but it can be destroyed in an instant.  In my experience, staff members immediately lose trust in the safety and risk management processes of an organisation, when they perceive that they could be 'blamed' for events in the context of a safety investigation.  However, it is the organisation (or the company) that is totally responsible for what occurs on any given outdoor adventure activity.  For ultimately the organisation has the highest level of a Duty of Care towards both its staff and also each and every one of their participants. This is especially true, where there is a potential high risk activity, or there are numerous hazards involved in their line of work - approved by the organisation. 

Of course, there is a very real difference between a hazard and a real risk, clearly.  However, managing those risks and avoiding those down-right dangerous hazards that could potentially take a participants life – should be avoided or mitigated.  Particularly, when it involves children on our outdoor education activities, or children on adventure therapy or wilderness experience programs.  Sadly, it is clear that some companies do not!  We all agree that the UPLOADS Project is an exceptional tool, however, not everyone uses it.  More realistically, the question here is, is it anywhere near enough to document all that is involved in programming activity safety and managing those risks that can potentially turn fatal. 

Yes, we also all agree that the 'Systems Thinking' approach to activity safety and program risk management is exceptional and very worthwhile, however, what about two more vital components, outdoor leader decision-making skills and also judgement skills?  Realistically how do we measure them?   Perhaps the one aspect of outdoor leadership that should be most emphasised in developing our outdoor leaders is - 'Judgment'.  Paul Petzoldt once wrote, "One aspect of leadership is absolute and unquestionable; an outdoor leader must be able to make quality decisions, decisions that are based on good judgement, that work, are safe, that protect the environment, and accomplish the purpose of the activity."

As an industry, how can we increase the more advanced elements in our training programs for our future outdoor leaders?  Personally, this has been my passion and my contention, over the past four decades here in Australia and more recently on the Indonesian island of Bali.

Surely, holding a “High Emphasis on Client Safety” policy within our outdoor programs is the very first step, to ensure that organisations are taking the right steps so that each of our customers (or clients) and our staff members all return home in the same state that they arrived in – that being injury free.   If this is not your company’s policy – it should be!

For example, does your therapeutic outdoor adventure program have each of the following in your Program Policy & Procedures Manual, and do your staff ‘practice’ using these regularly?

[The following documents need to be for each of the outdoor adventure activities and the specific areas that you will be undertaking]

  • Risk Management Planning
  • Emergency Response Procedures
  • Critical Incident Management Procedures
  • Standard Operating Procedures (for each activity)
  • Staff Training & Development Program
  • Compliance to: AAS (State and/or National Adventure Activity Standards)

What happens ‘if’ your company faces a lawsuit and it goes to court?  If your case does go to trial, in a nut shell, you (and your program) will basically be torn to shreds by the prosecuting lawyers. Any Industry experts may also be called in to support the prosecutor’s case via the expert’s professional opinion. You will have to justify each and every little decision that you or your staff made, justify every single fact of each and every minor error that was made along the way, especially ‘if’ your program was involved in a death of a participant. This is just the start.

Regardless of the outcome, consider the impact and the ordeal of going to trial that could have on yourself, your business, and any of your staff that are all potentially called in to give their own eye-witness account as to what did or did not occur, but perhaps should have occurred in relation to the major incident, or the death of one of your participants.

If the death involves a minor, then this will open up a whole different can-of-worms on the extent of where the prosecuting lawyers will go. Often they will also be looking for deep pockets.  Are you prepared – if this situation happens on your adventure therapy program?

In Western Australia, civil and criminal actions are determined in the general division. The General Division deals with only the most serious offences such as homicide and related offences, and serious breaches of Commonwealth drug enforcement laws. Judges generally preside over jury trials, where a jury of 12 members of the community decide if an individual is guilty or not guilty of a criminal charge.

The General Division also hears appeals from decisions of magistrates sitting in criminal matters in the Magistrates Court. The Division also deals with civil matters of a complex nature or where the amount involved in a dispute is more than $750,000, as well as applications for injunctions and other forms of relief. In Western Australia, most civil trials are heard without a jury.

Civil actions are heard by a single judge. Prior to hearing they are usually managed by a registrar who gives directions to the parties to try and ensure that each case settles by agreement between the parties or proceeds to trial in the quickest, most cost effective way, consistently with the need to provide a just outcome. In certain circumstances, civil actions are managed by a judge.

My own personal and professional experience is that therapeutic adventure (particularly in a wilderness environment) can result in dramatic and long-lasting emotional changes that may happen much quicker than within the therapy room alone. But, of course, the therapist needs to think in a very different way when starting to use therapeutic adventure. There are numerous issues of confidentiality and safety to consider, and it is important to assess clients’ needs and make adjustments in the program in order to meet those needs.

What about following a near-miss, or the major injury or a major psychological injury of a participant, especially a child? Are you fully prepared for any of these situations on your program?  You better be!

However, here we find that another really essential factor in the risk management of our adventure therapy programs, is something that needs to be covered more comprehensively in all adventure therapy staff training programs which is "Safety" – both physical safety and also psychological safety – both of which are vital factors to ‘prepare’ for well in advance.  This includes a Critical Incident Management Plan, for ‘if’ and when something on your program happens and all of a sudden – it all goes downhill from that point onwards! 

If you'd like some more quality information on risk management and safety practices for operating in the outdoors, then we would highly recommend the QORF (Outdoors Queensland) website.  For those of us who don't live in Queensland, you may not have seen it, but they have one of the most comprehensive lists of additional resources that we have ever seen!  Particularly their section under Industry - Risk Management and also the section on the International ISO-21101:2014 on Adventure Tourism Safety Management Systems. The QORF website also contains numerous other exceptional resources, if you also want to expand your current outdoor safety practices. Another exceptional resource section is on Incident Reports from not only in Australia & New Zealand, but from around the World.  

Want more?  See also Part 2:The Importance of Critical Incident Stress Debriefing" (from a traumatic event and also Post-Traumatic Stress following a critical incident on your adventure activity).

This post is part of a series of related articles on the outdoor adventure tourism industry and also safety & risk management practices.


* About the Author: Andrew has been actively involved in the youth & community development and outdoor adventure industries over the past 38 years. He has also managed several businesses in the outdoor adventure tourism industry including: the Western Venture wilderness-experience program, Corporate Adventure Training, Wilderness Ventures, the Outdoor Adventure Network, Outdoor Gear Australia and he is also a senior outdoor instructor, rafting river guide, and workplace trainer & assessor with the WYLD Camps Project - a wilderness youth leadership development project that works with 'at-risk' children & youth and their families in Western Australia.

Interested? Want to read more of our articles like 'How To Become an Outdoor Adventure Guide', or perhaps more about the ongoing safety and risk management issues sadly lacking on the island of Bali? Check out more at the bottom of our blog page HERE

Or, if you just wanna 'chew-the-fat' our e-mail is: info@outdoor-gear.com.au