This third piece in our duty of care series comes from Matthew Davies. He is an expert in adventure travel and risk management and this week and next week he will share his expertise on what safe adventure travel should include.
Matthew Davies FRGS, Director at Remote Area Risk International
Matthew Davies FRGS is a Travel Risk Management and Remote Area Risk specialist, certified Duty of Care Practitioner – as well as a specialist lawyer within this area. He has over 25 years experience in the field, is a Fellow of the Royal Geographical Society and has led expeditions in and trained teams for various environments including desert and arctic circle expeditions. He is a drafting committee for BS:8848.
Adventure Travel – Safety Considerations for planning overseas expeditions and adventures.
“If you are to be held responsible for other people’s safety, check them out as thoroughly as you would your own child”
Sir Ranulph Fiennes
This article may save your business, if you are a commercial provider. It may also save you considerable sums of money by avoiding costly mistakes. It is written for easy reading and in a slightly irreverent style. Ironically it is written whilst overseas during what have been, to date, Safe Travels. It is not intended to be a fulsome exploration of all relevant issues.
Adventure travel and expeditions are becoming increasingly popular. There are more and more commercial entities setting up all the time, matched by a boom in independent travellers and groups of friends heading out overseas on increasingly remote and cutting-edge adventures. Some will return from non-commercial expeditions and decide to set up their own business in the field – where do they start? Many of the planning considerations equally apply to exploration and remote area working – all of these are fields in which the organisation I work for specialises in.
We are currently liaising with teams in the advanced stages of planning to head off to Antarctic climes, charities sending doctors overseas to treat children injured in the Syria crisis, as well as individual adventure travellers, to name but a few.
What you will find below is a non-exhaustive overview of some of the main considerations when planning overseas expeditions and adventures. The summer is peak time for expeditions heading overseas – but it’s also a key time for others being hit by the arrow of inspiration and starting to plan their adventures for next year or the year after. The present is about the time that they are looking at future expeditions or formalising their experience for the benefit of others.
Necessarily, this is a lengthy subject, even at introductory level. To do the subject greater justice, we run two day, introductory level Royal Geographical Society certified Off Site Safety Management courses around the UK. That is not an advert (there are other providers of the course but we like to think ours has a unique approach) – it’s an indication of the fact that the subject is vast and hence an overview is given here.
Everyone has to start somewhere and after nearly 25 years advising in this field, it never fails to amaze me that even some well-established organisations are not aware of some of the basics. Conversely, I see private expeditions (groups of friends rather than commercial initiatives) where the planning is meticulous and the participants very clued up. Overall, this is a sector where most of the commercial operators are in fact well organised and that is reflected in the fact that there are rarely major incidents in this sector. There is generally a good safety record.
Clearly, if you are establishing a commercial entity, there are a host of legal considerations (for example, data protection, contracts, Package Travel Regulations), compliance issues (financial protection for customer’s money amongst others), liability insurance and Duty of Care considerations that do not impact the “occasional” organiser of expeditions or adventure travel for themselves and friends.
So here is a non-exhaustive list of issues that I have regularly seen over 25 years advising those in the sector – whether in the risk management, travel risk management or legal fields. Behind each tip is a long list of people having not taken this step – with sometimes disastrous consequences.
Commercial providers: Good practice and protecting your business
Get it right from the start – protect yourself. Whilst there are various options for legal structure (and you should take advice from your lawyer at the outset), it is highly advisable to at least consider establishing as a limited company. This affords a degree of protection if things go wrong. It does what it says on the can – limits your civil liability – save in a few circumstances. Get early legal advice – it will pay dividends.
I often ask clients the question, are you insured? If the answer is “no” (sometimes the answer is that they were never told they needed to be….) then I ask them whether their organisation is a limited liability company. If the answer is “no” then I ask them whether they own their own house… there is usually a moment of silence and faces tend to go pale.
If things go wrong and you end up being sued by a participant, it’s good to have insurance. It is even better to have it and to have read it. Most don’t, then regret it in the aftermath.
Insurances can cover commercial providers for their liabilities as tour operators – from personal injury and breach of contract (‘we didn’t receive what we paid you for’ cases), for professional indemnity – (i.e. liabilities arising from the exercise of their professional judgement, knowledge and calling), as well as insurance to protect themselves against claims from staff.
Insurance is good. I firmly believe you cannot afford to be in business if you cannot afford insurance.
Now, it’s important, essential even, to understand one key lesson – when you buy your liability insurance, clarify via the insurer or broker what incidents you need to report to them and when. Most policies state that you need to notify the insurer “immediately” of anything that could “give rise” to a claim. That doesn’t mean a successful claim, just a claim. So, the adult participant who ignores your advice and twists their ankle wandering on an unsuitable slope – they may bring a claim years later (see below). That claim (based on our simple scenario) is likely to fail, but you want the insurer to pick up your legal bill to defend the claim. Fail to notify insurers immediately of this event – which clearly may give rise to a claim (even an unsuccessful one) and they will not be obliged to indemnify you. Outrageous? Unfair? It’s a fact. Work with it. Don’t fall foul of it.
This is separate to liability insurance. When bad things happen and someone becomes ill, it pays dividends – and saves a lot of cash – to make sure in advance that that person has medical and evacuation cover. In the case of evacuation cover, make sure this is from the point of injury rather than from the nearest international airport.
Contracts and agreements
Commercial providers should have a contractual agreement with their customers. Terms and Conditions are a living entity – they develop as you experience more problems and nuances. Update them regularly – get lawyers to draft them. Ensure you have boxed off choice of jurisdiction and choice of law.
With overseas third-party providers, if you are using them regularly or for significant parts of your delivery, get contracts in place. Get copies of their insurance policies. When you get sued by your customer years down the line – for something the local ground handler or activity provider did wrong – and the local ground handler has disappeared without a trace, how handy would it be to be able to contact their insurer direct and pursue a recovery from the insurer…
Records are good. They can be worth their weight in gold.
Keep contemporaneous documents, educate yourself regarding limitation periods for claims. Generally – but not always – this is three years from the date of injury for adults (18 or over), until a child is 21, or six years from the date of breach in breach of contract (‘I didn’t get what I paid for’) claims. Buy a filing cabinet, store the documents – for at least a year beyond the limitation period. Evidence is good. Successful defences depend upon it.
Check back next week for the second part of Matthew’s article!
Matthew Davies FRGS is a Travel Risk Management and Remote Area Risk specialist, certified Duty of Care Practitioner – as well as a specialist lawyer within this area. He has over 25 years experience in the field, is a Fellow of the Royal Geographical Society and has led expeditions in and trained teams for various environments including desert and arctic circle expeditions. He is a drafting committee for BS:8848. Matthew is a consultant for Remote Area Risk International where he operates as a specialist adviser, Travel Risk Management, Duty of Care and Off Site Safety Management instructor, has experience of working with exploration companies, higher education establishments, expedition providers and expeditioners, adventure travel, search and rescue and NGO’s in the context of field safety. He can be contacted on davies@R2Rinternational.com
Remote Area Risk International – R2Ri, is a specialist provider of Duty of Care training and solutions. The team includes doctors, nurses, paramedics, very experienced specialists in the fields of Travel Risk Management, Remote Area Risk, Environment specific training, Travel Safety, Kidnap Awareness, remote area first aid and medical and intelligence reporting. Team members have significant experience in training and working with exploration, expedition, media, Off Shore and education sector clients. The organisation also undertakes at cost or pro bono work for worthy causes.
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