SPECIAL CARE IN SPECIAL CIRCUMSTANCES

The previous section detailed the way the general duty of care and law of negligence applies to volunteers and their work. This section will look at some of the situations where special care is required.

 

I. CARING FOR CHILDREN

When caring for children, the level of care required is not that of the average, reasonable person, relative to another adult, but that of a careful parent or guardian. This is a high degree of care since the volunteer must stand in the place of the parent who will take great care to protect a child against any foreseeable risks. The higher duty of care is owed both to the clients (children) and to other people who rely on the volunteer to properly supervise the clients (parents). A responsibility is also owed to others who may be affected by children’s activities.

When caring for children, a volunteer must be aware of the following four special variations on the general duty to take reasonable care introduced in Section 3:

• Duty to supervise
• Duty not to abandon
• Duty to rescue, and
• Duty not to use excessive force

A. Duty to Supervise

When children are under the volunteer’s direct care and control, the children depend on them for protection. Here are some examples of typical situations where volunteers must go to extra lengths when supervising children:

• In an art class, a volunteer must ensure that toxic paint, bleach, or a heated iron, for example, is not left unattended. Liquids like turpentine should be stored in properly marked containers and kept out of reach.
• Trampolines are notoriously dangerous, and frequently a source of lawsuits over injuries to children. They should be used with appropriate supervision, and preferably with a parent’s consent form.
• Groups of children and teenagers — from sports teams to school classes — on trips to another city should be supervised at all times. Volunteers need to be aware of activities planned with host billets, for example, as well as official activities.

One common situation that volunteers should consider when assessing risks of an upcoming activity is what happens in even a mild emergency. For example, at a wading pool, one volunteer to supervise six children might be fine as long as everything goes well. But what to do if one child falls and cuts himself and needs first aid, or if one child needs to go to the washroom or to phone a parent. Should the volunteer require all six children to come along until they can all go back to the pool? Probably in that situation.

Volunteers who feel they may have difficulty supervising children at an acceptable standard of safety should ask the voluntary organization to provide further support. For example, at the wading pool, two volunteers may be required. It is true that no amount of supervision by volunteers can cover every potential danger to a child. For example, a volunteer supervisor from XYZ Society on a hike can warn children to watch out for rocks or branches that they may trip over, but would not be expected to move every rock or branch out of every child’s way. If the paths were particularly dangerous, however, the volunteer would be expected to take a different route or to bring more adults for supervision. The standard of care required of the volunteer will be dependent on the level of skill and knowledge that can be expected of the child.

It should be noted that a consideration of how far the duty to supervise extends will be based on what a reasonable person ought to have done, and will not involve a consideration of whether or not that particular volunteer believed that the supervision was needed.

B. Duty not to abandon

Having taken responsibility for the care and supervision of children, volunteers have a duty to continue caring for them until they are safely in the care of another person. For example, at the close of an organized activity at a community center, a volunteer cannot leave until he is sure the children have all been picked up by a responsible adult. If a parent does not show up, the volunteer must stay and help contact the parent or another caregiver.

The state’s concern for the supervision and care of children is so great that abandoning a child can be a criminal offence as well as being a question of civil liability.

Section 218 of the Criminal Code says this: “Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured, is guilty of an indictable offence…”

Criminal abandonment only applies in extreme situations that could affect the life or long-term health of a child. However, suppose a volunteer takes children camping in a mountainous area where a child could fall over cliffs or wander off and become lost and hypothermic. This volunteer has a legal obligation to ensure that the children are properly supervised and cared for the entire time. If the volunteer leaves to get groceries in town, leaving no one to supervise, and one of the children is hurt, the volunteer may not only be liable for the injury, but may also be charged with abandonment.

C. Duty not to use excess force

In some cases, the use of force may be required to protect the safety of a child under a volunteer’s care. For example, a child who runs toward an open roadway may need to be blocked or picked up in a way that requires some force. A child who is hurting another child or himself or herself may need to be physically held back or removed from the area. Force should only be used as a last resort. For example, if a group of children is at a playground with a single volunteer from XYZ Society, and one child refuses to leave when the rest of the group is ready to go, the volunteer should make a reasonable effort to convince the child to go, or to have the group wait until the child agrees to go. Ultimately, however, the volunteer may need to use reasonable force to get the child to leave the playground.

Force should never be used for disciplinary reasons.

Parents and guardians are legally permitted to use reasonable force to discipline a child, but the force must not be excessive or out of proportion to the circumstances. However, a volunteer who uses force against a child may be liable for both civil and criminal assault.

II. GIVING ADVICE

There are many situations where a volunteer may be called upon to give advice. Advocates, for instance,

serve a primary role helping others navigate through a range of legal processes, from divorce mediation to welfare appeals to disputes with landlords. Other volunteers give less formal advice from time to time.

This might include helping a young person make a decision about her education or helping a parent access services in her community. Volunteers must take particular care when giving information or advice. If they give out incorrect or misleading information or advice, they can be held liable for the harm that results. For example, if a volunteer gives out financial advice, he or she may be liable for any errors or misinformation that cause harm or loss to the client.

A. Four components of negligent statements

Volunteers don’t risk liability every time they make a statement. For a volunteer to be held liable for a negligent statement or advice, an injured person must prove the following four components of negligent statements:

• The volunteer must be in the business of giving advice
• The volunteer must claim to be, or have the appearance of being skilled and able to give out advice
• It must be foreseeable that the other person will rely on the volunteer’s advice or statement
• The client must rely on the information and suffer a loss or damage as a result

1. The volunteer must be in the business of giving advice

Voluntary organizations that act as resource centers of advice may be considered to be ‘in the business’ of giving advice to others. Suppose our XYZ Society holds sessions each year that have volunteers help to complete income tax forms for seniors. In this instance, they could be considered to be in the business of giving income tax advice and the volunteers may be held liable if they provide incorrect information. However, a volunteer driver making an offhand remark about RRSPs would not likely be liable. A volunteer should be cautioned not to give advice unless giving advice is specifically within the scope of his volunteer responsibility.

2. The volunteer must claim to be, or have the appearance of being, skilled and able to give out advice

These volunteers who complete income tax forms or act as financial advisors are giving the impression to clients of being particularly skilled in the area of tax and finances. Similarly, law students who volunteer their services in a legal clinic program are claiming they are a source of reliable legal advice.

3. It must be foreseeable that the other person will rely on the volunteers’ advice or statement

If volunteers know or should know that a client will rely on their advice, they have an obligation to make sure that the information is reliable and correct. If seniors bring in their income tax forms to be filled out, for example, it’s reasonable to expect that they will rely on the advice the volunteer gives. If a volunteer cannot ensure that the information is reliable and correct, he should tell the client this.

4. The client must rely on the information and suffer a loss or damage as a result

A volunteer cannot be held liable if a client did not follow the advice, or if no loss or damage resulted. So, in our example, if a senior decides to change his income tax form in a way that does not follow the advice of the volunteer, then the volunteer would not be held liable.

III. OUTDOOR AND ADVENTURE RECREATION

Many outdoor and recreational activities involve a potential for injury. This is particularly true for adventure activities like rafting or snowboarding. Volunteer guides and organizations that coordinate these higher risk activities have a higher level of responsibility.

As explained in the previous chapter, an injured person claiming damages for harm or injury must be able to prove negligence on the part of the volunteer or the organization that planned the trip. To prove negligence, it must be shown that the guide or organizers breached the standard of care owed to the participant, and that this failure resulted in an injury or loss. In cases involving outdoor activities, a determination will need to be made as to what a reasonable outdoors person would do in similar circumstances. While it is difficult to determine what this reasonable standard might be, one can assume that it would include carrying standard safety equipment and complying with known safety standards. It is safest to assume that a reasonable outdoors person may not have as adventurous a spirit as some enthusiasts.

For example, a reasonable person might turn back if the activity reached beyond his experience or weather conditions became particularly bad. Volunteers and organizations that participate in outdoor and adventure recreation should take extra care to ensure that safety measures are in place. When volunteers are recruited and trained, special care will need to be taken to make sure that the volunteers’ skills are at the standard required for the activity in question. These organizations generally want to have carefully drafted waivers informing their clients of the potential risks they are agreeing to take. In addition, organizers should ensure that appropriate insurance coverage is in place.

IV. DRIVING

As part of their responsibilities, volunteers often drive clients to activities or on personal trips such as to the supermarket or to a doctor’s appointment. In other cases, being a driver may be a volunteer’s central function, for example, if he is driving for a group like Meals on Wheels. Whether driving is occasional or frequent, each volunteer driver owes a duty of care to take reasonable care and drive in a safe and careful manner. This duty extends to ensuring the following:

• Safety of the vehicle itself (such as checking to make sure tires and windshield wipers are in good working order)
• Safety within the vehicle (such as using seatbelts or child car seats, or stopping a passenger who extends an arm out the window)
• Safety driving the vehicle (such as adhering to speed limits or making safe turns), and
• Safety entering and exiting the vehicle (such as assisting small children or people with disabilities, or ensuring that it is safe to open a door and exit the vehicle)

Failure to take care could result in the volunteer driver being liable for negligence. For example, if a volunteer fails to properly clear windows of ice and this causes an accident, the failure to take reasonable care could result in damages paid to those who are injured or suffer losses. The agency needs to assure itself that a volunteer driver has the proper driver’s license and the necessary vehicle liability insurance.

It should be noted that basic auto insurance may not cover extensive or exclusive use of a vehicle for all volunteer activities. For example, if XYZ Society gave custody of a vehicle over to a volunteer, or substantially altered the vehicle to make it fit for a purpose other than what it was originally insured for, may constitute a “change material to the risk” insured against, if the motor vehicle is used for a new purpose. If the Society did not notify the insurance company of this change, they may void the insurance contract, leaving the volunteer or organization personally liable for any accident that may occur. When it doubt, it is advisable to notify the insurance company, in writing, of any change in use of the vehicle.

V. SPECIAL EVENTS AND FUNDRAISERS

Many legal issues can arise when special events or fundraisers are held. Many of these are issues that must be dealt with by the administration of the organization (Executive Director or Board of Directors) and have to do with getting appropriate approval for events or complying with certain federal, provincial, or municipal statutes. (see Other Legal Issues Chapter 8). However, no matter what the event, the volunteers still have variations on the duty of care that we have been discussing. For example, volunteers acting as bartenders at XYZ Societies dance probably owe a duty of reasonable care requiring them to make reasonable attempts to stop a person who has been drinking from driving a car. Those serving food at the event also have a duty of care to ensure that it has been handled and stored properly to avoid food poisoning.

If childcare or a children’s play area is to be provided at a large event, organizers should ensure that reasonable efforts are made to ensure that children will be safe, that waivers are signed, that volunteers looking after the children have appropriate training, and that any laws governing childcare are obeyed.

VI. LIABILITY UNDER THE CRIMINAL CODE OF CANADA

In addition to the civil liability we’ve been discussing in the last two chapters, section 215 of the Criminal  Code of Canada states that everyone is under a legal duty to provide the necessaries of life to a person under his charge under certain circumstances. First, the person under the volunteer’s charge must be unable to withdraw from that charge because of age, illness, mental disorder or other reason, and second, the person is unable to provide for themselves. Thus, volunteers who have responsibility for the care of an organization’s clients who have some disability, primarily children and the elderly, could be subject to criminal prosecution if they intentionally fail to provide the necessaries of life for them.

If the tasks carried out by the volunteer are clearly part of the service provided by the organization and the volunteer is carrying out the tasks under the organization’s supervision, then the volunteer would be unlikely to be charged with criminal responsibility for an accident or injury. This would only happen if the volunteer’s conduct also fell below the community standard and met the test of criminal responsibility; that is, he both committed an illegal act and intended to commit it.