What Is Risk?

Learning Objective

To establish the foundations for understanding the concept of risk and its legal implications as they apply to outdoor programming.

“Adventure education is a profession of risk taking, but of risk taking with a purpose. The exposure to a variety of risks in an outdoor context produces an uncertainty of outcome which is central to the adventure experience. Such uncertainty sets the scene for challenge, commitment, cooperation, exhilaration, problem solving and clear, unambiguous feedback which may produce learning, growth, transformation and the realization of human potential.”

— John C. Miles, Adventure Programming

Risk, Real Risk, and Perceived Risk

Defining Risk

In the context of outdoor activities, “risk” refers to the potential of encountering harm, danger, or adverse events during recreational or adventurous pursuits in natural environments. Outdoor activities can encompass a wide range of experiences, such as hiking, camping, rock climbing, water sports, and more. The level of risk can vary depending on factors like the type of activity, environmental conditions, participant experience, and safety measures in place.

Understanding and managing risk in the outdoors involve recognizing potential hazards, assessing the likelihood and severity of negative outcomes, and implementing strategies to minimize or mitigate those risks. This may include proper planning, situational awareness, understanding and managing human factors, technical and relational skill development, use of safety equipment, adherence to guidelines, and awareness of changing conditions. Effective risk management is a critical skill for outdoor leaders.

Real Risk

Real Risk represents the actual potential for loss from existing surrounding hazards and perils or the amount of risk that exists at a given moment in time. It is the objective potential for loss from hazards and perils.

For example, climbing a steep rock face without proper equipment or training illustrates a real risk.

These distinctions help in understanding the nuanced nature of risk, from its conceptualization to the tangible and objective risks present in specific situations.

Perceived Risk

Perceived risk is the individual’s subjective assessment or belief regarding the level of danger associated with a specific outdoor activity, which may or may not align with the actual level of risk.

As an example, some individuals may perceive camping in the wilderness as highly risky due to concerns about getting lost, encountering wildlife, or facing adverse weather conditions, even if the objective risk is relatively low.

Risk perception can significantly influences decision-making and behavior. Even when the actual risk is low, if an individual perceives it as high, they may avoid the activity or take extra precautions. The impact of perceived risk extends to program design, where desirable educational and social outcomes can result from participation in activities that evoke a heightened sense of perceived risk in participants. Below, we discuss factors such as risk tolerance, activity selection, perceived level of challenge, and the educational value of risk.

Risk Tolerance

Risk tolerance is defined as “the level of risk an entity is willing to assume in order to achieve a potential desired result.”

Program organizers and leaders must consider the participants’ perceived risk tolerance levels. In the context of outdoor programming, this implies that organizations and individuals must carefully consider the balance between risk and reward when planning and implementing activities.

Everyone has a different level of natural risk tolerance. Some participants may be more risk-averse, while others may seek higher levels of challenge and adventure. Outdoor programs are designed to cater to a range of risk preferences, balancing safety with the desired level of challenge.

As an instructor working for an organization, program or representing a certifying body, your own level of risk tolerance is less relevant than that of the context you are working in.

Personal risk tolerance can be shaped by many factors, including experience and training (which often, but not always increases risk tolerance), personality, gender, cultural factors, etc. To mitigate these differences within staff teams it is important to be guided by the program goals and organizational risk tolerance.

It can also be helpful to consider the “Two to go, One to say No” principle when there are disagreements about risk tolerance and decisions. Open communication is essential for surfacing different perspectives and ensuring that all team members are actively engaged in the risk management process. A voice of concern should be a signal to pause and re-evaluate the situation and look more closely at potential risks.  Later in this course we will explore the concept of a culture of dissent as a means of fostering an environment where team members feel comfortable expressing concerns about potential risks.

Legal Implications

Standard of Care is a legal term used interchangeably with “Industry Standard” which refers to the degree of care determined to be the benchmark that a prudent and reasonable person would exercise to determine whether professional obligations were met. Failure to do so is negligence.

Some industries govern these criteria through entities like colleges or licensing boards. In the outdoor industry in Canada, standard of care is often determined through:

• Certifying bodies/accreditation (i.e. ACMG, Paddle Canada, SKGABC, etc)
• Federal statutes (laws) or jurisdictional regulations (i.e. Transport Canada regulations for boating activities)
• Policies and Procedures of reputable organizations in the industry for specific activities (i.e. Outward Bound, NOLS, camp associations, etc).

Individual guides or instructors are accountable for acting within the scope of their training and expertise – we will discuss this in more detail in the chapter on Scope of Practice). Legally, an instructor is held liable against these standards and measured against the actions of similarly trained peers. Organizations bear the responsibility of developing risk management policies, staff training, and supervision aligned with accepted industry standards.

If a participant is harmed during a program, an organization or independent outdoor leader may face legal implications due to the responsibility (liability) they hold for that individual. The organization’s adherence to industry standards and its ability to demonstrate the implementation of appropriate risk management measures, staff training, and supervision will be crucial in determining legal outcomes. In cases of negligence or failure to meet the standard of care, legal consequences may include financial liabilities and potential legal action.

Duty of Care

Duty of care is defined as a legal obligation to provide care within the scope of practice defined by the employer and profession to which one is trained to perform in order to protect those in your care from reasonable harm.

It is the first element that must be established to proceed with a legal action in a negligence case. The plaintiff must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability.

Employees are generally protected by their employer as long as they follow policies and instructions.

Insurance

When employed by an organization, it is crucial to have liability insurance that specifically covers you as an instructor or guide. As a professional outdoor leader, it is equally important to stay informed about industry standards relevant to the activities you lead. Adhering to these standards, along with following the risk management policies set by your employing organization, ensures that you are protected by their liability insurance.

For those operating as independent contractors or freelance instructors, obtaining your own liability insurance is imperative. Some certifying bodies, such as ACMG or Paddle Canada, offer liability insurance for certified guides or instructors within specific parameters. It is essential to fully understand the scope and limitations of the insurance provided by these certifying bodies.

Waivers

An Acknowledgment of Risk (AOR) and Waiver of Liability: is a contract between the provider and the participant that covers all aspects of activity participation and releases the provider of liability for injuries/damages that may occur during participation from any cause, including negligence.

An AOR does not absolve a company from their legal duties to provide safe equipment and a protected environment for patrons. While your waiver does require participants to accept personal responsibility for injuries due to normal participation, it does not require them to accept responsibility for a provider who makes safety errors.

In essence, waiver documents waive the participant’s right to sue for all the hazards and risks listed, often including negligence.

Informed Consent

For a waiver to be valid, participants in outdoor programs must first have sufficient information about the risks about to be undertaken and further understand that information.  Furthermore, participants must be deemed competent to understand what is being explained and voluntarily agree to the risks without coercion of any kind. Information must be presented in a manner that is comprehensible, often utilizing more than one method of delivery (oral/written/visual).

Negligence

Negligence is the failure to act as a reasonable, prudent person would act in a similar circumstance. There are generally four components for negligence to exist:

1. There was duty of care
2. The actions performed were below the standard of care (a breach of duty)
3. Damage occurred
4. The breach was the cause of the damage

Make sure you can justify your decisions, have made concerted efforts to mitigate risks, and document reasons for any decisions that could have potentially large impacts.

Gross Negligence

“The term has not been defined by legislation. [Gross Negligence] implies conduct in which, if there is not conscious wrong-doing, there is a very marked departure from the standards by which responsible and competent people . . . habitually govern themselves. Gross Negligence reflects the degree to which the conduct falls below the appropriate standard of care.”

— Peter J. Roberts, It Might Be Negligent, But is it Gross Negligence?

Gross negligence changes depending on the risks involved, industry standards, and whether duty of care was established. Gross negligence cannot be waived and that is what lawsuits involving waivers are often trying to prove.

Minors

In Canada, minors cannot waive their rights, neither can parents waive the rights of their children. So waivers for minors and parental consent forms are more about the child and parents’ awareness of the risks involved, rather than legal protection. There must be informed consent (see definition above). Age of minors differ by province so ensure clarity on this specific to where you work.

As leaders we are required not only to act according to a professional standard of care, but also ‘in loco parentis’. This is Latin for “in the place of a parent” – used interchangeably with Prudent Parent.

“In loco parentis” is a legal doctrine that signifies the obligation of an individual or organization to assume certain parental functions or responsibilities as defined by the law.

The same holds true for schools, where teachers are in loco parentis for students.

References

Government of Canada (2013, February 25). Provincial definitions of a minor. Government of Canada. Retrieved August 2, 2023, from https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-provincial-definitions-minor.html

Leemon, D., Mettenbrink, K. B., & Schimelpfenig, T. (2019). NOLS Risk Management for Outdoor Leaders Notebook. National Outdoor Leadership School.

Miles, J. C., & Priest, S. (1999). Adventure Programming. Venture Publishing, Incorporated.

National Institute of Standards and Technology (n.d.). Risk Tolerance. Information Technology Laboratory. https://csrc.nist.gov/glossary/term/risk_tolerance

Roberts, P. J. (2020, April 8). It Might Be Negligent, But is it Gross Negligence? Lawson Lundell LLP. https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/it-might-be-negligent-but-is-it-gross-negligence

Sanders, M. J., McKenna, K., Lewis, L. M., & Quick, G. (2007). Mosby’s Paramedic Textbook. Elsevier Mosby.

Vanderpool, D. (2021, Jul-Sep). The Standard of Care. Innov Clin Neurosci., 18(7-9), 50-51. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8667701/

Wex Definitions Team (2023, January 1). In loco parentis. Legal Information Institute. Retrieved August 2, 2023, from https://www.law.cornell.edu/wex/in_loco_parentis