ARE THE AAS A LIABILITY?
The project managers and the Outdoor Recreation Centre justify the Adventure Activity Standards with various and varying claims about improved safety, legal liability protection, insurance advantages and environmental benchmarks. Elsewhere on this site aspects of these claims are discussed. Here we discuss the claim that the Adventure Activity Standards will assist with legal liability protection.
We argue that the AAS are based on no research, are untested and contentious. They are ill conceived and may well be questioned in a court. They are set usually vague, sometimes unreasonable and sometimes impossible to comply with, and so are unlikely to provide protection against legal liability claims. The AAS may even be a liability, especially to an organisation that had endorsed or otherwise undertaken to adhere to the AAS.
Every AAS commences with this statement:
"AAS are … designed to promote:
Protection for providers against legal liability claims and criminal penalties,"
And later in every AAS:
"Having suitable risk management programs and strategies in place, and ensuring the AAS are met, will minimize the likelihood of injury or loss. However, evidence of compliance with such programs and the AAS will also assist in the legal defence of claims and in proving that a provider and its leaders have acted reasonably in the circumstances (i.e. were not negligent)".
The Department of Sport and Recreation website (Sept 04) carries a presentation by the ORC's AAS Project Officer. It includes this:
"In the absence of AAS, the courts must attempt to draw what is the duty of care by finding relevant experts and other documentation."
The clear inference here is that a court will rely on the AAS to determine a standard for the duty of care required by a leader or organisation, for an adventure activity. This is misleading. A court may well look beyond the AAS in determining the standard by which a leader or an organisation should have acted. All parties in a court situation will present their own evidence, and will produce their own experts, regardless. Indeed, this point is noted in the introduction to each of the AAS.
It is significant that, notwithstanding the grand claims quoted earlier, each AAS document commences with a disclaimer that includes the following:
"The Adventure Activity Standards (AAS) are only advisory and general in nature and should not be relied upon to meet individual or specific requirements."
"The AAS will not cover each and every circumstance of an adventure activity."
"This publication and the information and the AAS it contains are made available on the express condition that Outdoor Recreation Centre Inc. Victoria (ORC), the authors, consultants and advisors who have assisted in compiling and drafting this publication and the AAS are not rendering professional advice to any person or organisation and make no warranties with respect thereto and to the maximum extent permitted by law disclaim all liability and responsibility for any direct or indirect loss, damage or liability which may be suffered or incurred by any person as a consequence of reliance upon anything contained in or omitted from this publication."
How is it that the AAS that are supposed to promote safety and help in legal defence all carry a disclaimer that says no such promises are made? This disclaimer is there to ensure that the ORC cannot be held liable for the AAS. This disclaimer means that the ORC are not confident that the AAS will protect that organisation from legal liability claims. So how could they protect you?
Each AAS reduces an adventure activity to about 6 or 7 pages of activity specific information. The rest of each AAS document is taken up with the disclaimer, some apparently legal generic advice, the ORC's ANTA/NORLS agenda, some environmental "benchmarks" and some odd definitions.
The activity specific content is a mixture of the vague, the obvious and the trivial. It's what you inevitably end up with when you try to cover all that is involved in the safe conduct of an adventure activity in a few pages.
Consider this extract from the Surfing Sessions AAS (bold added):
"As a minimum, a checklist must be documented before initiating any session to ensure that the following considerations are appropriately accounted for.
- Wave height and direction are appropriate.
- Tide is appropriate for the location.
- Any rips are identified and accounted for.
- Wind direction and strength are appropriate for the planned session.
- There is no unexpected submerged rock or reef.
- Access and egress are clear in case of an emergency.
- Sand bars are safe and/or appropriately considered to minimise risk.
- Other users are appropriately accounted for.
Where any of the above are not as expected, appropriate strategies must be implemented."
This is, presumably, a reasonable checklist of potential surfing hazards and safety factors. But notice how this list has seven exhortations, in three layers, to act "appropriately", plus two "considers" and three "accounted", that sound good but actually avoid specifying anything.
The extract provides no information on what course of action a surfing leader should take in any particular circumstance. This is not a criticism of the authors of this AAS, it's just an example of what happens when an activity is reduced to a list. The reality is that it is not possible to compose a document that specifies how an activity should proceed in each possible scenario.
Other AAS are no different. For example, the AAS Bushwalking draft has 18 uses of the word "appropriate", Mountain Biking 16, Rock Climbing 25 and the Canoeing and Kayaking draft a remarkable 30. Almost always the word is used to evade being specific.
At the 2004 Victorian Outdoor Education Association Conference, the ORC's AAS Project Officer claimed in a presentation that: "AAS provide a guideline for leaders and organisations to demonstrate that they are conducting activities in an appropriate manner". Presumably his tongue was in his cheek at the time.
Remember that AAS disclaimer included: "The AAS will not cover each and every circumstance of an adventure activity". Absolutely. This statement itself demonstrates the point. Which circumstance does the AAS cover then? How can anyone tell?
So, the AAS are vague. Doesn't that make them pretty harmless as well as rather useless? No it does not. They are potentially dangerous. It is the statements by the ORC that they promote safety, state the duty of care and provide protection against liability claims that make the AAS the liability, especially for an organisation that had endorsed them.
The meaning of such vague and limited content would only be determined once a matter reached a court. At that point the very fact an accident has occurred can work against an leader or organisation. It could be argued that, given the ORC's claims about the virtues and status of the AAS, the leader or organisation could not possibly have been following the AAS and acting "appropriately", because an accident has occurred.
The AAS disguise the fuzzy content and achieve a re-assuring tone by including much trivial detail, usually related to equipment. Remember the listing of underwear and insect repellent in the Bushwalking final draft. In another example, the Mountain Biking AAS requires the support vehicle to carry "2 rags". There are many other such examples. Such detail is out of proportion.
Despite being mostly vague, sometimes the AAS lapse into specifics. Then we find requirements of leaders that are impossible to meet. There was that marvellous requirement; "Leaders should be aware and prepared for the unexpected, at all times," in the Bushwalking AAS final draft. From the AAS Recreational Caving and AAS Mountain biking we have: "Maintain constant surveillance/observation of participants…". Constant surveillance of 12 people in a cave or 20 people riding mountain bikes? You have got to be kidding. These are unreasonable expectations of a leader, and hardly provide protection against a legal liability claim. Once again, content that is more likely to have the opposite effect.
It is not merely a lapse that these guidelines are vague on important things and insistent on trivial things ("be very very careful, consider everything, act appropriately and remember your underpants"). It is an inevitable outcome of an ill-conceived process that badly misunderstands the nature of safety in the bush.
In the particular case of the Bushwalking AAS, the ORC insists on a unique definition of bushwalking that just about includes walking out the front gate. This guarantees an unsatisfactory result of any attempt to write a standard. No brief guidelines could ever cover bushwalking in all its forms, and including rogaining and similar activities.
When Vicwalk (the bushwalking clubs' peak body) made the obvious suggestion that recreational bushwalking clubs should have different guidelines to commercial groups, the ORC informed VicWalk that it would be "illegal" to have separate guidelines (VicWalk News, October 2004). Yes, that's right, these are "voluntary guidelines with no legal status"; but, by the way, it's illegal if a highly reputable peak organisation wants to write its own!
Recently the ORC has been claiming to have "governance" of the outdoor recreation sector; news to many. This must be what governance by the ORC means.
Now if an AAS was used as evidence in a court, one party or the other or both just might question how the AAS were developed. The ORC claims this process developed each AAS:
Agreed as reasonable and appropriate by the specialists for each activity.
Reviewed by a wide cross section of activity participants online.
Reviewed by the ORC Committee.
Reviewed by the AAS Steering Committee.
Reviewed by the AAS solicitor."
Which organisations had representation on working parties of "specialists" was arbitrarily determined by the ORC, according to a formula for representation from different sectors. Curiously, VicWalk was not invited to join the Non Resort Snow Activities working party despite representing the largest number of cross country skiers, the refusal occurring soon after members of VicWalk clubs resoundingly refused to accept the ORC's effort at a Bushwalking AAS.
How did the "specialists" agree on content? The ORC describes the means by which working parties made decisions; "All aspects of the standards were introduced, discussed and the inclusion or exclusion of individual components often decided by vote." This is a process that gives those who turn up to a meeting of an arbitrarily determined group of representatives, an equal say. It is not expert consensus. This is not how engineers build a bridge or how a document that will allegedly be used in a court as the standard should be produced.
But, in the case of the Bushwalking AAS at least, even this flawed process was not followed. The working party only met a small number of times early on. VicWalk submitted an alternative draft that was rejected out of hand, and not even put to the "specialists" on the working party. The Project Officer regularly rejected suggestions, apparently on his own authority.
Twice, attempts at a Bushwalking AAS were circulated by the ORC with the misleading claim of the draft being endorsed by the organisations represented on the working party. On both occasions neither individual working party members, nor their organisations had even seen significant sections of content.
The nonsense of the ORC's claim that the AAS define the duty of care is demonstrated again here. The ORC produced a new, different Bushwalking AAS in response to the pressures of one lobby group, VicWalk, despite their first effort being the "final draft". How could it be that either of two, quite different attempts to set a standard could determine liability in court?
Returning to the main issue of this article, let's accept the ORC claim that each AAS will provide protection against legal liability, if people carefully follow the AAS. However, the ORC website states:
"The AAS are flexible and able to be developed further as requirements change."
".. a realistic first review of the drafts (sic) will commence over the next 8-12 months. … The working groups will then be capable of making any changes to produce the second edition. After the 2nd edition is released, we expect to continue reviewing AAS at 2 year intervals or following significant events if the need becomes urgent."
So, the ORC can change the standard any time it feels like, and it intends to do so. Some standard! Where does that leave a club or leader? Where does that leave their insurance policy?
To conclude, the Minister for Sport and Recreation, in a letter to Vicwalk published in the October 2004 VicWalk News, claimed the effect of the AAS will, in relation to clubs:"… hopefully reduce their public liability costs and minimize their chances of being exposed to legal action." That the best the Minister can be is "hopeful" is cautionary and is certainly at odds with the claims made about the AAS by the ORC. In our view even being hopeful is overstating the case for the AAS.
The legal liability protection claims by the ORC are spurious and irresponsible. There is no certainty that the AAS would provide protection against legal liability claims; indeed the opposite may well be the case, given the way that the AAS have been conceived and written. Victorian taxpayers funded the Outdoor Recreation Centre to produce the AAS at a cost of $250,000. Every page of the AAS carries the Victorian Government Logo. Adventure Victoria believes the Department of Sport and Recreation should direct the Outdoor Recreation Centre to cease making the claim that the AAS provide protection against legal liability.
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We understand that VicWalk has now received eminent legal advice that an organisation that endorses the AAS may well face an increased exposure to litigation. The advice also commented that the bushwalking AAS failed to distinguish between commercial and non-commercial organisations and their differing duties of care. The VicWalk Executive is recommending to its Clubs that the Bushwalking AAS not be endorsed.