Friday, 7 February 2014

Can  a volunteer  be  held  responsible  for  another’s  death?                            


The Buddy System is a procedure in which two people—the ‘buddies’ operate together as a single unit so that they are able to monitor and help each other if something goes wrong. It is highly recommended when swimming or hiking and/or skiing in forests.


This article is about two men who went skiing together as ‘buddies’ in the back country of British Columbia, Canada.  The kind of skiing they were doing is called ‘hell-skiing’ in which there are many hazards facing those who do it. The two men went on a heli-skiing vacation with Mike Wiegele Helicopter Skiing at Blue River, B.C.


The two men who didn’t know one another agreed to pair up. They were Mark Kennedy from Colorado USA and Adrian Coe from England.


Wiegele’s employs trained ski guides on all heli-ski trips, who accompany each group of skiers in the back-country. On arrival, all guests are required to read and sign a Release of All Claims, Waiver of Liability and Acceptance of Inherent Risks (the Release) and attend a safety briefing that includes a safety video. The safety video describes the many hazards encountered in the back-country, including avalanches, crevasses, snow cornices, creek beds, various snow conditions and tree wells (where snow isn’t at the base of trees). It also describes the ‘buddy system’ and the use of transceivers to locate missing skiers.


In the safety video that was in use in January 2009, guests were told that as Wiegele’s could not guarantee their full safety, they were to recognize potential hazards, follow their guide’s instructions, and ski with their buddies and keep a watch on each other, especially when in the trees, narrow chutes, gullies, creek beds or very deep powder. They were told about the dangers of tree wells and how a skier falling head first into one can suffocate, and they were shown how to dig a person out. They were told to use the buddy system in the trees, stay in contact with their partners, and keep their guide’s tracks in sight. If lost, they were told to stop, stay where they were and shout out so the guide could find them.


The buddy system operates as a “gentleman’s agreement” in that guests generally choose who they want to ski with, and the expectation is that buddies will support and look out for each other so that if one is missing, the other can give the guides an idea of where his buddy may have gone missing.


The incident


Mr. Kennedy and Mr. Coe were in a group of ten guests and two guides. Barry Widas was the lead guide for this group and Scott Streadwick was the tail guide. As lead guide, Mr. Widas was responsible for managing the hazards on the runs, selecting the lines of descent and regroup spots, and advising the guests about the particular terrain they will encounter. The lead guide always descends first. As tail guide, Mr. Streadwick was responsible for ensuring that the guests followed the general direction set by the lead guide, spacing the guests, and assisting guests if they fall on the run. The tail guide always descends last, conducts a sweep of the slope, and is usually the first on the scene if there are any incidents. At every regroup spot the guides do a head count to make sure that everyone in the group is present. A final head count is not done until the tail guide arrives but the two guides are able to communicate with one another by radio at all times.


When the group reached the top of the old growth forest, Mr. Widas paired everyone up for the first time. Neither Mr. Kennedy nor Mr. Coe was skiing with friends. Although they had not met each other before this, they were assigned as ski buddies. Both were considered to be expert skiers. The two men acknowledged this assignment by gestures but neither actually spoke to the other.


The guests were given general instructions to ski in pairs through the forested section by trying to keep each other in visual or vocal contact, and that Mr. Coe followed those instructions by skiing behind Mr. Kennedy through that section of the run.


When the guests regrouped at the top of the log cut, (where trees have been cut down and the stumps remain) they were instructed only to ski to the lunch spot, which was about 200 metres (656 feet) below them and visible from the regroup site. Mr. Coe did not understand this to mean that he was to ski with Mr. Kennedy down that cut, so he did not do so.


There are tree well hazards in log cuts as well as thick forest areas. However, the terrain and visibility are quite different on a slope like a log cut. There is a common understanding among expert skiers that each is capable of skiing on his own to a visible and obvious location, whether or not hazards such a tree wells continue to be present on a run. This makes common sense, whether or not one considers that the “buddy system” continues to apply in a general sense throughout the day. Tree wells and many other hazards may be present anywhere on the mountain. Every tree has a tree well and thousands are encountered by skiers every day.


The buddy system is most commonly used when skiing near trees with fresh, deep, unconsolidated snow, when hazards such as tree wells are present on the runs. The practice to keep the other skier in visual or vocal contact while in forested sections makes sense because of the obvious dangers of tree wells and the limited visibility in such terrain.


In this particular incident I am writing about, the guests were not instructed to ski with their assigned buddies down the log cut in the same manner as they had skied together in the forest, and consequently, Mr. Coe and other guests skied on their own down that run to the regroup site at the lunch spot.


Mr. Coe said that he last saw Mr. Kennedy at the top of the log cut. As he started skiing, he recalled seeing two to three people to his right and thought one of them was Mr. Kennedy. He estimated Mr. Kennedy to have been three to five turns behind him at the top of the cut.                                   


He skied down the log cut in a tracked area with trees to the right and left. He thought most of the others skied in that same area. He did not stop until he reached the bottom. He thought it took him at most two minutes. At the bottom, he took his skis off, turned around and looked up the slope, as was his habit, and noticed immediately that Mr. Kennedy was not skiing on the pitch behind him. He mentioned this to some skiers standing there and called out to Mr. Widas, who walked towards him. He thought that Mr. Streadwick appeared at about the same time. Mr. Widas then began counting everyone and noted that Mr. Kennedy was missing, and asked Mr. Coe who his buddy was. Mr. Coe identified Mr. Kennedy as his buddy and told Mr. Widas he had last seen him four to five turns from the top of the cut. He thought that two minutes and a fraction of time had passed from the top of the log cut to when he alerted Mr. Widas to Mr. Kennedy’s absence.      


As the tail guide, Mr. Streadwick was the last of the group to arrive at the bottom. He did so after shadowing a slow snowboarder for a few turns, assisting someone who had fallen near a tree well, and sweeping the slope to see if any guests were on the pitch. He estimated that it took him “a couple of minutes” to get down. Mr. Streadwick quickly began to climb back up the slope, taking off his skis to make faster progress. Using his transceiver, he was able to locate Mr. Kennedy within a very short period of time. He first saw a ski tip and then a patch of a red jacket inside a tree well. He found Mr. Kennedy’s head and cleared the snow away. By then, Mr. Widas, a doctor and another guide had arrived and together they were able to pull Mr. Kennedy from the tree well and administer CPR. Unfortunately, Mr. Kennedy was hypoxic (a condition in which the body or a region of the body is deprived of adequate oxygen supply) and unresponsive since he was deceased.  


An autopsy determined the cause of death to be asphyxiation and the coroner classified the death as being accidental. Dr. John Butt, a forensic pathologist, provided an expert report about the survival time for snow immersion victims. He stated that the range of time reported in the literature was 15 to 30 minutes. He also stated that a victim would lose consciousness within 15 to 20 seconds after an obstruction to ventilation, and after four to six minutes there is a serious threat of brain swelling, which leads to depression of centres in the brain stem that control vital functions such as respiration and heartbeat. Without cardiopulmonary resuscitation after a four-minute “down time”, recovery is inversely related to time so that with each minute beyond four minutes there is about a 10% reduction in survival.                                                   

 Mr. Kennedy was at a location measured by Mr. Widas to be 138 vertical feet above the lunch spot, which was about one-third to one-half the way down the run. He was inside the cone of the tree well on his back with his head buried in one to two feet. The snow was loose and unconsolidated. Mr. Kennedy’s hands were not by his face and there was nothing in his airway. His lips were blue, his face was pale grey and he was not breathing. There was no evidence which established when Mr. Kennedy fell and when he died.


Mr. Coe notified Mr. Widas about Mr. Kennedy’s absence before either of these two arrived at the lunch spot. Given the overall time frame, this likely occurred within about one to three minutes after he reached the bottom. However, it was not until Mr. Streadwick arrived (which was very quickly) that the guides were able to confirm, through a head count of the guests, that Mr. Kennedy was in fact missing. But unfortunately, by the time they reached him, it was too late to save him.


The law


When someone assumes the responsibility to protect another person from harm, he is under a duty to act accordingly. For example, a fireman or policeman is under a duty to act in a manner that will protect other persons. If that person fails in his duty, he can be liable to a criminal charge of negligently causing death or injury and/or be sued for damages. In this particular case, Mr. Coe was sued by Elizabeth Ann Kennedy, the wife of the deceased.


In British Columbia, Section 2 of the Family Compensation Act, permits a person in the position of the plaintiff to bring an action where the death of a person is caused by “wrongful act, neglect or default” and such act, neglect or default would have entitled the person to maintain an action had death not resulted. The plaintiff essentially steps into the shoes of Mr. Kennedy. To found a wrongful death claim in negligence, the plaintiff must first establish that Mr. Coe owed a duty of care to Mr. Kennedy.


In determining whether a duty of care should be imposed, the court was not being asked to adjudicate on the morality of the defendant’s conduct. Rather, it was being asked to determine, as a matter of law, whether it is fair and just to impose the cost of the plaintiff’s loss (assuming there is a loss) on the defendant. This case was a prima facie tort in which the plaintiff alleged unintentional harm resulting in death in which there was no excuse or justification by the inaction of the defendant. The plaintiff bears the burden of establishing a duty of care, but once she establishes a prima facie (on the face of it) duty of care, the evidentiary burden shifts to the defendant to show that there are policy considerations that negative or limit the scope of the duty to the plaintiff.


The plaintiff suggested that this case fell within ‘volunteer or assumption of responsibility’ cases, where liability has been imposed on parties who voluntarily undertake to do something they are not otherwise obligated to do.


For example, if a person volunteers to look after your children while you are away and that person leaves your children in a car alone when the temperature outside in extremely hot and the children die, even though that person wasn’t paid to care for the children, she would be liable criminally and liable for damages because she had a duty to care for them once that person agreed to do it.


The issue in this particular case was whether or not the defendant could be liable for damages because of his failure to look out for Mr. Kennedy in case he falls and is injured.


If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it. For example, if you volunteer to look after an elderly person and that person is suddenly gasping for air and you pour water down her throat and she dies, you can be held responsible for that person’s death. But if you do nothing to help that person because you don’t know what to do and she dies, you cannot be held liable for that person’s death if you are not a professional nurse who was hired to look after the deceased.


However, where a promise is given by one person that he will assist another person if an emergency arises, performance of that promise is in effect and the other person relies on that performance, liability may lie. The question facing the judge in this case was whether or not the defendant was in a position where he could assist the plaintiff as soon as he fell into the tree well.


Obviously, he could not because the deceased was behind him and since the plaintiff really believed that Mr. Kennedy was on one side of him, he was unaware of what had happened behind him. As a former downhill skier, I am fully aware of how important it is to keep your eyes on objects in front of you in much time of the run as is possible and that is what Mr. Coe did. Had he turned his head around while skiing forward, he too could have skied into a tree well.


Does this case fall within a relationship previously recognized as giving rise to a duty of care?


In the Wiens case, a person who voluntarily undertook to secure a ladder was found to owe a duty of care to the ladder’s user. In Goodwin, a highway maintenance contractor who stated that it would alert a crew to black ice on an area of road over which it had no responsibility was found to owe a duty of care to third party users of the road. In Brown, a defendant who volunteered to clean up an oil spill on a road was found to owe a duty of care to persons using the road. In all of these cases, the volunteer failed to carry out the undertaking or did so negligently.  In Goodwin and Brown, the undertakings resulted in the authority or individual legally responsible for maintaining or cleaning up the road taking no action due to reliance on those undertakings.


While these ‘volunteer’ cases bear some similarities in the case I am writing about, they are distinguishable primarily because in each there was a clear undertaking made to perform a specific task in circumstances very different from those in this case. By that, I mean that although Mr. Coe volunteered to be a ‘buddy’ to Mr. Kennedy, this didn’t mean that he was legally obligated to have his eyes on Mr. Kennedy for every second they were skiing.


Mr. Kennedy voluntarily sought to engage in a high-risk sport with full knowledge of its risks. He paid a third party for the opportunity to participate in that sport, and signed a waiver of liability. He participated in a buddy system that was flexibly applied depending on the terrain, the conditions and the instructions of the guides.


On the one hand, establishing a duty of care as between ski buddies may result in skiers performing that role with greater diligence, thus enhancing safety, as suggested by the plaintiff. On the other hand, establishing such a duty of care may discourage skiers from agreeing to be ski buddies at all, thus diminishing safety, as suggested by the defendant.


Foreseeability and proximity are considered. Where an overt act of the defendant has directly caused foreseeable physical harm to the plaintiff, foreseeability alone may establish a prima facie duty of care, but where the allegation is that the defendant failed to act, something more is usually required. This is because a duty to take positive action “in the face of risk or danger” is not free-standing. As the Chief Justice said in the Childs case, “the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved.


The defendant argued that any failure to act on his part did not give rise to foreseeable harm to Mr. Kennedy and there was nothing in the relationship between them that was sufficient to give rise to a positive duty of care to Mr. Kennedy. The plaintiff on the other hand submitted that the relationship between the defendant and Mr. Kennedy met the requirements of foreseeability and proximity sufficient to establish an actual duty of care to Mr. Kennedy.


In this case, the difference between a failure to act and an overt act directly causing physical harm is an important distinction in the proximity analysis.

What had to be considered was the proposed duty to take care to prevent harm caused to Mr. Kennedy by a risk inherent in a sport in which he chose to participate.


The law does not impose a duty to eliminate risk. It accepts that competent people have the right to engage in risky activities. Conversely, it permits third parties witnessing risk to decide not to become rescuers or otherwise intervene. It is only when these third parties have a special relationship to the person in danger or a material role in the creation or management of the risk that the law may impinge on autonomy. The autonomy of risk takers or putative rescuers is not absolutely protected, but, at common law (former decisions of the courts), it is always respected.


A person who creates or invites others into a dangerous situation, like the high-risk sports operator, may reasonably expect that those taking up the invitation will rely on the operator to ensure that the risk is a reasonable one or to take appropriate rescue action if the risk materializes. Similarly, a teacher will understand that the child or the child’s parents rely on the teacher to avoid and minimize risk. Finally, there is a reasonable expectation on the part of the public that a person providing public services, often under licence, will take reasonable precautions to reduce the risk of the activity, not merely to immediate clients, but to the general public.


While the risk of death in this manner was not high, the risk of falling into a tree well was, and the question with respect to foreseeability is not whether the specific injury suffered by Mr. Kennedy was reasonably foreseeable, but whether it was reasonably foreseeable to a person in Mr. Coe’s position that carelessness on his part in reporting Mr. Kennedy’s absence would likely cause some injury to Mr. Kennedy.


The judge in this case said in part;


“In my view, it was reasonably foreseeable that if Mr. Coe failed to perform his alleged duty as a ski buddy to report Mr. Kennedy’s absence, or did so negligently, Mr. Kennedy would likely have suffered some injury as a result of a delay in his rescue. The defendant appears to concede this in his submission where he states, at best, it can be argued that a failure to act by Mr. Coe may foreseeably result in Mr. Kennedy not being rescued from harm in a timely way. Where time is of the essence in the backcountry, it is reasonably foreseeable that a delay in commencing a search and rescue operation would likely contribute to the injury or death of a person who becomes buried in snow.” unquote


The judge then said, “In this circumstance, however, foreseeability alone is insufficient to establish a prima facie duty of care. The plaintiff must also establish a relationship of sufficient proximity between Mr. Coe and Mr. Kennedy.” unquote


The plaintiff submitted that (1) Mr. Coe specifically undertook to assume the duties associated with being Mr. Kennedy’s buddy and in this way was implicated in and exacerbated the risk of tree wells by inviting Mr. Kennedy to rely on him as a potential rescuer; (2) recognizing a positive duty to act would not unjustifiably impinge on either Mr. Coe’s or Mr. Kennedy’s autonomy because they both voluntarily agreed to assume their equally shared responsibility of skiing as buddies; and (3) the fact that Mr. Kennedy in fact skied with Mr. Coe rather than someone else, indicates that he relied on Mr. Coe’s undertaking to come to his aid if the need arose.


The defendant submitted that this case that he did not create or control the risk of tree wells, nor did he entice Mr. Kennedy to heli-ski, and therefore the risk that caused Mr. Kennedy’s death had nothing to do with him. The defendant stressed that he and Mr. Kennedy did not have a close relationship since they did not know each other before being assigned as ski buddies and did not discuss their mutual expectations of their duties as buddies. He further submitted that there was no evidence that Mr. Kennedy had any expectation that Mr. Coe would be responsible for his safety on the mountain. He relied on the fact that Mr. Kennedy, by signing the Release, acknowledged the risks associated with heli-skiing, including the conduct of “other guests” and that there was the possibility of a risk of death.


It is clear that Mr. Coe cannot be said to have been implicated at all in the creation of the risk, but the question is whether he was materially implicated in the control of the risk or the manner in which Mr. Kennedy was skiing. In my view, he was not in control of either.


Agreeing to participate as a ski buddy for the purpose of mitigating risks does not mean that the participant is able to control those risks—clearly Mr. Coe could not control what Mr. Kennedy did on the mountain and what hazards he encountered. All a ski buddy can do is assist in minimizing the potential harm that may result from those risks. By keeping track of each other, ski buddies may be able to directly assist each other if they witness a problem or indirectly assist each other by notifying others responsible for searching and rescuing. In the context of guided heli-skiing, a skier who fails to notify the guide of his partner’s absence in a timely way is not materially implicated in the control of the risk itself. He is implicated only in the potential consequences caused by his delay resulting from the risk of falling into a tree well.


The judge said;


“A ski buddy who fails to notify the guide of his partner’s absence in a timely way may affect the speed with which his partner can be found, but he has only a limited control over the potential consequences of the risk itself. In a guided situation, it is the primary responsibility of the guides to keep track of their group. While a tail guide can be alerted by radio to a missing skier while he is still on the slope, confirmation that a skier is in fact missing is usually done when the tail guide arrives at a regroup site. In such circumstances, it cannot be said that a ski buddy is materially implicated in the control of the risk.” unquote


The plaintiff submitted that the requisite elements of offer, acceptance and consideration are present on the facts of this case: Mr. Coe agreed to be Mr. Kennedy’s ski buddy and in exchange, Mr. Kennedy agreed to be Mr. Coe’s ski buddy. She says that at a minimum, the terms of the contract between the two included the duties of a ski buddy, which in turn included the duty to ski in close proximity to each other and to immediately alert the guides if the other needed assistance or disappeared.


In my opinion, that doesn’t make sense at all. Anyone who is familiar with skiing with another person knows that he or she is not obligated to ski side by side where they can see each other even if they are skiing together as buddies to look after each other’s safety.  There was nothing wrong with Mr. Cow skiing ahead of Mr. Kennedy, especially when he was cognizant of the fact that the tail skier was skiing behind Mr. Kennedy and was in a better position to see what was happening to Mr. Kennedy while they were all skiing down the run.


The plaintiff submitted that the requisite elements of offer, acceptance and consideration are present on the facts of this case (in that) Mr. Coe agreed to be Mr. Kennedy’s ski buddy and in exchange, Mr. Kennedy agreed to be Mr. Coe’s ski buddy. She says that at a minimum, the terms of the contract between the two included the duties of a ski buddy, which in turn included the duty to ski in close proximity to each other and to immediately alert the guides if the other needed assistance or disappeared.


The judge said;


“It is my view that the nature of any obligations assumed by Mr. Coe and Mr. Kennedy was not contractual. There is no basis on which to find the existence of a contract or any contractual intention. Even if there was an agreement that included the terms asserted by the plaintiff, such terms could only have applied in the forest, given my finding that Mr. Kennedy did not reasonably rely on Mr. Coe to do anything more than ski with him through the forest in accordance with the instructions of the guides. Moreover, there is no basis on which to find that Mr. Coe was in default of any obligation to immediately alert the guides, given my finding that Mr. Coe notified Mr. Widas of Mr. Kennedy’s absence within a reasonable time after he reached the bottom of the log cut. Accordingly, the claim in contract cannot succeed.”

The judge’s final ruling was as follows;


“The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and (therefore) responsibility for his death cannot be placed on Mr. Coe.”


This is a very important case to remember because as you can see from this article, there are limits on just how much one person can expect from another when volunteering to be available to them if something goes wrong.

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