AD­VEN­TURE TOURISM

Tourism Tattler - - LEGAL - Part 3 By ‘Louis The Lawyer'

This se­ries of ar­ti­cles ex­plores the le­gal as­pects as­so­ci­ated with the risks of op­er­at­ing an ad­ven­ture tourism busi­ness, with spe­cific rel­e­vance to the le­gal frame­work ap­pli­ca­ble to South Africa. can be read on­line HERE, HERE, HERE, and Part 4 HERE.

Part 1 Part 2

Sum­mary

Part 1 pro­vided def­i­ni­tions for the term Ad­ven­ture, while Part 2 looked at risk in terms of Na­tion­al­ity of Par­tic­i­pant, Ser­vice Providers, Book­ings, and Terms & Con­di­tions, and Part 3 cov­ered In­dem­nity and Re­quire­ments of the CPA, and Part 4 cov­ered risk iden­ti­fi­cer sig­nage must be used/go in hand with a sound in­dem­nity and waiver form.

DUTY OF CARE

Neg­li­gence

Neg­li­gence can be broadly de­fined as con­duct which in­volves un­rea­son­able risk of harm to oth­ers OR the fail­ure to ex­er­cise the de­gree of care which the cir­cum­stances de­mand. The lat­ter def­i­ni­tion brings into the fold the con­cept of duty of care: the duty to avoid do­ing some­thing or to do some­thing that may rea­son­ably and prob­a­bly cause harm to those to whom the duty is owed linked to a sub­se­quent breach of that duty. There are var­i­ous cir­cum­stances as well as con­tracts and statutes (laws or en­act­ments of par­lia­ment or lo­cal govern­ment) that can give rise to or im­pose a duty to take care. Omis­sion

Let's start by con­sid­er­ing whether and how an omis­sion (i.e. the fail­ure to act) 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: e.g. when mak­ing a book­ing but fail­ing to ad­vise the pax of im­mi­nent dan­ger – there is in my view no dif­fer­ence whether the in­tended jour­ney is of a lo­cal or in­ter­na­tional na­ture.

It is there­fore im­per­a­tive that the ser­vice provider (This in­cludes the en­tire sup­ply chain from e.g. the tour op­er­a­tor to all third par­ties sup­ply­ing prod­ucts or ser­vices) must be fa­mil­iar with the client and his/her par­tic­u­lar needs as well as the des­ti­na­tion(s) and the route thereto/from as well as the cre­den­tials of all third par­ties pro­vid­ing ser­vice and prod­ucts.

The willy nilly ap­point­ment of such third par­ties with­out thor­oughly vet­ting them and their prod­ucts (A due dili­gence is rec­om­mended) may well re­sult it­self be­ing amount­ing to such an omis­sion and thus give rise to li­a­bil­ity. The CPA stresses the ex­po­sure of the en­tire sup­ply chain and even in the case of sec­tion 61 ab­so­lute/no fault prod­uct li­a­bil­ity can be ap­por­tioned.

Re­la­tion­ship

The re­la­tion­ship be­tween the par­ties may give rise to such a duty. One may well ar­gue that the travel agent or tour op­er­a­tor owes all pax such a duty. It is there­fore important to act within the scope of your pro­fes­sional train­ing, skills & re­lated knowl­edge. So given that travel agents and tour op­er­a­tors are or should be prop­erly trained and have the skills and knowl­edge (see above) but fails to im­part that knowl­edge and/or ap­ply such skills and train­ing, the court may well find that they had a duty of care, breached same and will be held li­able for the con­se­quences. This ex­po­sure is ex­tended to em­ploy­ees (act­ing in the course and scope of their du­ties) so it is important to have and ap­ply a thor­ough travel pol­icy. An area of con­cern in this re­gard is how to deal with em­ploy­ees go­ing on a so-called ‘frolic of their own' when away on a busi­ness trip!

It is the breach of the above du­ties of care or such as may be de­manded by the cir­cum­stances that gives rise to neg­li­gence, pro­vided such breach in­volves an ‘un­rea­son­able risk of harm to oth­ers', which may well be the case if ap­plied to the cir­cum­stances sketched/en­vis­aged. How­ever the courts are not un­rea­son­able and when ap­ply­ing the so-called fore­see­abil­ity test, i.e. the ex­tent to which the oc­cur­rence should have been an­tic­i­pated, it will look not only at the pos­si­bil­ity of the in­ci­dent oc­cur­ring, but also the re­mote­ness of such an oc­cur­rence; whether or not, even if it were to oc­cur, the na­ture of the harm (se­ri­ous or neg­li­gi­ble) was such as a na­ture that the myth­i­cal ‘rea­son­able man' would have guarded against it – the lat­ter would mean an as­sess­ment of the steps taken/that could have been taken and the ef­fi­cacy thereof.

Im­age cour­tesy of Canopy Tours

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