The “Reasonable Man” Test: Or How Do We Know What You Did Was Safe?

Abstract

Peak organisations are often requested to prepare and submit a professional or "expert" opinion concerning the facts of a litigation in which negligence is alleged. As leaders in the field of adventure education, Project Adventure Inc, and its licensee Project Adventure Australia, have been approached on many occasions to prepare similar opinions concerning the safe operation, or otherwise, of particular adventure-based activities, including Challenge Ropes Course elements. In my capacity of Senior Trainer for Project Adventure Australia, I have been asked to prepare and submit an "expert" opinion on at least six adventure-programming incidents over a period of about ten years. All but one of these cases was settled out of court. The only litigation which proceeded to a judge and jury (and involved me testifying in the witness stand), concerned the use of the popular "electric fence" activity. The extraordinary wisdom I garnered from this experience formed the basis of an article 1 published in 1998 entitled "Adventure in the Courtroom". The overwhelming emphasis of my experience was relating the skills and knowledge of a specialist area of expertise (for example, Challenge Course facilitation) to the average man in the street (aka the jury). Or, as is frequently termed in a court of law, "the reasonable man test". That is, it often asked, what would a reasonable man have done in the circumstances? This article aims to guide adventure educators, and anyone involved with adventure programs, about how the law may develop an understanding our world, in order to assess its best or most reasonable safe practice. It may also represent a useful prompt for my colleagues to examine their training, and risk management practices and policies. Remember, you're dealing with a "reasonable man" (or woman), so you need to provide a context for an opinion. To this end, I have found it useful to explain two key elements to assist in the understanding of safe and effective adventure programming practices: * The nature of adventure-based / experiential activities and programs; and * The essential factors which impinge on the safe operation of an adventure-based activity. 1. Nature Of Adventure By definition, an adventure activity / program is not like most traditional educative techniques because it comprises "unanticipated outcomes", ie you can not predict with accuracy what will happen. The outcomes are unknown because inherent in every adventure, are the elements of challenge, tension, interaction and risk (emotional and physical). The combination of these elements aims to generate a fun and exciting learning environment for the participants, yet at the same time, invite participants to step beyond their self-perceived comfort zones. The balance between providing for a fun learning environment and participant safety is delicate, and can be best expressed as the management of two key concepts of risk: Perceived Risk The risk (of injury) as perceived by the participants. Generally speaking, activities which involve bringing people off the ground (such as a high Challenge Course, abseiling, etc) are perceived as carrying greater perceived risk. In practice, however, research indicates that these activities are statistically the safest (refer Project Adventure Inc "Twenty Year Safety Study"). It is believed that this safety record is achieved because of the use of heightened safety procedures and an expectation of greater risk (where participants are more likely to be alert). Actual Risk The actual risks (of injury) involved in participating in the activity. Generally speaking, activities which carry the least perceived risk can attract the greatest actual risks because participants are either less aware of the risks involved and / or the facilitator has paid less attention to the management of the inherent risks. For example, low-to-ground problem-solving activities, such as those referred to in the "Twenty Year Safety Study" as low element / initiative activities, often record the highest incident rates. …