The Guide's Responsibilities

There are two ways to look at the way a guide (or instructor) does their job. From the guide's perspective, they want to know what to do (or not do) to protect themselves from being sued. From the perspective of company owners/managers, they want guides to do their jobs in way that will not lead to vicarious liability (in other words getting sued for what the employee did or didn't do).

Luckily the answer to both questions is the same. There are ways in which a guide can do their job that will lessen the likelihood that either they or their employers will be sued.

Standard of Care

The first background point to understand is the concept of standard of care. This is the level at which guides are expected to conduct themselves. Nobody thinks that guides are perfect (other than themselves, of course). Therefore, courts do not hold them to this level either. The standard of care that is expected of guides comes from Negligence law. To sum up a large body of case law, a guide is expected to do their job at a reasonable standard as compared to other people with similar knowledge and skill.

[Legal Side Note - to determine what is reasonable for someone with your skills and knowledge the court may listen to expert witnesses. In other words, a respected guide/instructor with years of experience may be called upon to assess what skills a guide should have to work where you did and what they should be able to do in the circumstances you were in. This will help a judge determine whether you acted reasonably with the information in front of you and at your level of skill.]

Skills and Knowledge

When a guide applies for a job they send copies of their certifications to the company. Consequently, they are representing to the employer that they have the skills and knowledge necessary to do the job. Therefore, guides should be able to perform these at a reasonably competent level appropriate to their certifications. These skills and knowledge include, but are not necessarily limited to:

(Please note that this article was written with a kayak professional in mind. However, the same concepts apply to all guides; you just need to substitute the skills and knowledge specific to your activity)

Guiding skills - paddling, weather forecasting, navigation, leadership, teaching, group management, camping, rescues, incidence response, etc.;
Wilderness First Aid; and
Marine Radio Operation.

Company Policies and Procedures

It is the guide's responsibility to do their job according to the company policies and procedures listed in the staff manual; and in the manner they have been trained by the company. This includes giving safety talks, filling out appropriate paperwork (trip plans, first aid reports, etc.), following protocols, ensuring gear is in safe working order, etc.

Some guides think they know better than their employers. Other guides can't be bothered to read the whole staff manual. However, the manual and training you receive are the expectations of your employer on how you will run their activities. If you prefer to use your own style or do things differently, then feel free to open up your own business. Until you have your own company, your obligation is to do things the way your employer trains you. If you deviate from their systems and something goes wrong, it is likely that you will be seen to have some responsibility for the accident. Therefore, to protect yourself, do things their way!

Documentation

In order for guides to protect themselves and employers from liability, they need to become diligent at filling out paperwork. This includes those reports included in the company policies and procedures, such as the following reports: pre-trip, post-trip, first aid, incident (with witness statements; pictures; etc.) and gear repair and maintenance. The quality of the paperwork is a major factor in determining whether or not a lawyer believes they can defend the guide/business owner from a negligence suit. Proper paperwork provides evidence which may show proof that you were not negligent.

Beyond the paperwork required from the company you work for, it is also important to keep your own paperwork. For example, if you are an overnight guide, it is a good idea (and an industry standard) to keep a log book journalizing your review of the weather, sea state and group. This can be used as evidence that decisions were made in a methodical manner with safety in mind. This can also prove what the situation was like when you made the decision that may have lead to the accident. If the decision seemed good at the time, based on the information in front of you (as noted in your logbook), then you acted reasonably and not negligently.

I recommend keeping copies of all paperwork and not relying on the company you work for to provide it to you at a later date. Things get lost. Take the responsibility upon yourself to make sure your copy doesn't!

Summary

In sum, guides need to take responsibility for protecting themselves from liability. Although most employers will defend their staff as best they can, employers and guide's interests may not always continually be the same.

Here is a list of points to consider in order to help guides reduce liability:

Apply an appropriate standard of care while working, and follow the company policies and procedures.
Ensure you have the appropriate skills and knowledge for the job and keep up to date with training.
Be diligent with your paperwork and keep copies for yourself (start a binder).
Learn about waivers and insurance and their role within the risk management system that protects you from lawsuits.