LEGAL RESPONSIBILITIES

This section introduces the duty of care that volunteers must take and how that relates to law suits for negligence.

Volunteers owe a number of duties to those with whom they have direct contact during their volunteer work. These individuals may include children in a daycare situation, people who are provided with advice by volunteers, or people involved in recreational activities organized by volunteers. Duties also extend to others who might be harmed by the acts of a volunteer, such as a visitor or even a fellow volunteer who slips and hurts himself on an icy sidewalk outside the organization’s office.

I. DUTY TO TAKE REASONABLE CARE

Every person in Canada has a duty to take reasonable care toward others at all times. This requires that we do some things and don’t do others. For example, we are expected not to roller blade down a crowded sidewalk in a way that might injure people, and we are expected to ensure that our sidewalks are not so icy as to be a danger to others.

If a person does fail in her duty toward another, there may be a claim of negligence. In other words, the person suffering the harm (the plaintiff or claimant) files a lawsuit against the person she believes caused the harm. If the claim is successful, the court may award damages (a sum of money) to the person(s) harmed. The theory is that the damages will help to put the person in the same position she would have been in if she had not suffered the harm.

A. What is reasonable care?

“You must take reasonable care to avoid acts or omissions, which you can reasonably foresee would  be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to acts or omissions, which are called in question.”

What this means is that a court will consider whether an individual should reasonably have known whether his act or omission could cause the other person harm in order to determine negligence. This duty to take reasonable care applies to the actions of volunteers. Of course, each case is decided on its own particular set of facts. However, we can say, for example, volunteers are probably negligent if they do the following:

• leave dangerous cleaning fluid in a children’s play area,
• forget to use a wheelchair brake when leaving a person with a disability near a steep incline, or
• hold a sports activity on a dangerous playing field.

Failure to do something can also be held to be negligent.

For instance, it would be negligent to fail to properly supervise children when taking them on a hiking trip in the mountains.

This duty, however, does not extend as far as creating a duty to help a stranger in distress or in need of emergency first aid. There is no common law or statutory duty imposed on bystanders. There must be a special relationship between the person requiring assistance and an individual before a duty is imposed.

II. THE FIVE COMPONENTS OF NEGLIGENCE

Not every injury will result in damages (money payable) to the injured person. Each case is decided based on its own facts and issues, and the duty of care is one important component. However, the person who has suffered harm must be able to prove the following five legal criteria to have a chance at getting a judgment of negligence:

• A duty of care to another person existed
• The volunteer failed to meet the standard of a reasonable person
• Harm resulted from an act or an omission
• There was a causal connection between the act and harm
• The harm must have been reasonably foreseeable.

A. There must be a legal obligation to act in a certain way towards others (the duty of care)

Once volunteers offer their services, they have an obligation both to the people directly in their care and to others who might be affected by their actions. For instance, volunteers in charge of taking senior citizens to the local park have a duty of care towards these seniors who are the clients of the organization. They have an obligation to make reasonable efforts to keep their clients safe from harm and out of danger. Here are some other examples of people who have a direct relationship with volunteers:

• Children being supervised in a day camp,
• Other volunteers, staff, and supervisors of volunteers,
• People with disabilities who are being transported,
• People seeking advice about family problems,
• Passengers in vehicles driven by volunteers.

Volunteers may also be liable for damages suffered by people who are not the volunteer’s primary responsibility.

For example, suppose the XYZ Society volunteers are taking seniors to the local park for a summer picnic. Not only do they owe a duty of care to those seniors, but also to the other drivers and passengers in other cars on the road.

B. The conduct must be below the standard a reasonable person would have shown in a similar situation

In general, volunteers must behave in a manner that meets the same standard of care that would be shown by a reasonable person with similar ability and experience in those particular circumstances. In other words, a volunteer may be found negligent if their actions fall short of the standard of the reasonable person in similar circumstances.

Suppose the XYZ volunteers were taking teenagers from a detention centre on a kayaking trip. Two of the teenagers show that they have earned Bronze Medallion swimming awards and demonstrate that they can do the ‘Eskimo roll’, turning a kayak right side up without getting out of it. These two athletic and skilled teenagers argue that they shouldn’t have to wear the uncomfortable life preservers, and having seen their skills, the volunteers allow this. When one of their kayaks flips, a teenager without a life preserver drowns.

It is clear that the volunteers owed a duty to take care of all the teenagers. Having established this, the court will carefully examine what standard of care a reasonable person would take when taking teenagers out in kayaks. The court would likely listen to the evidence about the teenagers’ swimming and kayaking abilities and would also hear witnesses giving evidence about the standard use of life preservers among kayak guides. If the court found that it was normal practice for all clients on kayak tours to wear life preservers, or that a reasonable person would make all teenagers wear the safety devices, then the volunteers might very well be found to be negligent.

Variations in the Standard: If the work a volunteer is doing involves low risk — playing the piano for seniors’ sing-a-long evenings for example — the standard of care will also be low. If the work involves a higher risk, the standard of care required may be higher. For example, a judge once stated, “A reasonable man need not show the same anxious care when handling a pound of butter as he would a pound of dynamite.” So, for example, if a volunteer is supervising children or persons with special needs, the risk is higher and thus the standard of care is higher. For example, a reasonable person would not allow children to use a wading pool without supervision, because there is a well-known high risk of drowning. The standard of care required takes into account the skill and ability of the volunteer. Volunteers with special skills or training may be held to a higher standard of care than unskilled volunteers. For example, a volunteer who is a doctor may be expected to use her special skills and knowledge if someone is injured. A volunteer who is a trained lifeguard would be held to a higher standard of care when dealing with children at the wading pool than a volunteer with no lifeguard training.

Similarly, volunteers with lesser skills and knowledge than the average ‘reasonable person’ may be held to a lower standard of care. For example, volunteers who are not yet adults have a lower standard of care expected of them. They must behave in a reasonable manner considering their age, intelligence, and experience in relation to the actions of other young people of the same age, intelligence, and experience. For example, if an average 16-year-old with the same intelligence and experience would not be expected to know or do something, then neither would a 16-year-old volunteer.

As well, the standard of care may include a consideration of the resources available to the volunteer organization.

C. Someone must be injured or suffer a loss because of the failure to act properly

Before anyone can sue a volunteer, they must suffer a loss or injury because of the volunteer’s actions. For example, suppose a volunteer from XYZ Society is teaching the teenagers from the detention home how to hit a curveball and is using a yard in a residential neighbourhood for this lesson. If the baseball is hit into a neighbour’s yard, but falls to the ground, there is likely no harm done and therefore, no negligence. If the baseball is hit through a window, however, the homeowners suffer a loss, at least the cost of replacing the window. To win the lawsuit, the persons suing must prove that they were injured or that there was damage to their property.

The harm suffered does not have to be physical. Harm might include a financial loss or emotional pain.

For example, should a volunteer recklessly and without proof tell a parent that his child has been critically injured in a hiking trip, causing the parent to rush to the hospital, and subsequently suffer emotional trauma as a result of the ordeal, the volunteer may be found negligent and required to pay the parent damages for this injury. For a claim of emotional harm to be successful, the plaintiff must usually suffer an actual medical illness or injury, such as depression, emotional trauma, neurosis, or the worsening of an already present physical condition.

D. There must be a causal connection between the negligent act and the injury or damage

For a volunteer to be legally responsible, it must be proven that the damage or injury was a result of that volunteer’s negligence. Volunteers may not be liable if the damage was not caused by their actions, or if the damage was caused by the injured person’s own negligence. So, for example, if it can be shown that the baseball was the only cause of the broken window, the volunteer may be found 100% negligent. However, if the volunteer can show that the window already had huge cracks across it and was held together by cardboard and tape, the volunteer might not be found negligent or 100% responsible.

E. The injury or damage must have been reasonably foreseeable

A volunteer has a duty to prevent any reasonably foreseeable injuries or damages. For example, if a volunteer from XYZ Society is supervising a pick-up basketball game on a playground and sees broken glass lying there, the volunteer should foresee that the broken glass could cut someone. He or she should stop play and make sure that the glass is picked up before someone falls on it and is injured.

The reasonableness of a volunteer’s actions will be considered on a standard of the “reasonable person” as placed in the same circumstances as the volunteer.  Whether or not that particular volunteer actually foresaw the danger is not a consideration.

III. LIMITING LIABILITY

A. Risk Assessment

Almost every activity has some level of risk involved.

The best way to limit a volunteer or organization’s liability is to avoid causing harm. Thus, it is up to the volunteer and the agency to consider the risks involved in an activity. The following list of questions may be helpful.

• What are the risks of this activity?
• How serious are these risks?
• How likely are these risks?
• How can these risks be eliminated?
• How easy or difficult will it be to eliminate the risks?
• How important or valuable is the risky activity?

A court, when considering a claim of negligence, may also review the following questions:

• Had the risk previously been the cause of another injury or near injury?
• Was the risk well-known or had it been pointed out previously?
• Did the volunteer or organization follow usual and reasonable practices in dealing with the risk?
• Did the volunteer or organization follow the procedures recommended to them by experts?

For example, a volunteer from XYZ Society taking adults with special needs on an overnight camping trip should consider all of the possible risks that might be involved, such as campers falling or getting lost in the dark. Some aspects of this risk can be eliminated easily. For example, the trip could be started early in order to avoid travel in the dark. Other aspects, such as campers leaving their tents after dark and becoming lost, might be more difficult to eliminate. The volunteer must consider the risk and possible solutions, then implement a reasonable solution.

B. Other Limits to Liability

If harm has occurred and a lawsuit been brought, there are some other limits to a volunteer’s or an organization’s liability (defences against a finding of negligence). Some of the defences include the following:

• The injured person contributed to the harm,
• The injured person voluntarily assumed the risk,
• The parent or caregiver of an injured person consented to the activity,
• The incident involved a standard practice or custom, or
• The volunteer was acting in self-defense or in the defense of another.

1. The injured person contributed to the harm

When the injured person is shown to have contributed to causing the harm, it is called ‘contributory negligence’. This is unreasonable conduct on the part of the plaintiff which, when combined with the negligence of others, has in law contributed to the victim’s own injuries. When the injured party is held to have been contributorily negligent, the defendant volunteer’s liability will be reduced: for example, if the court finds that a plaintiff is 30% at fault, the volunteer will pay 70% of the damages. Each person is responsible for her share of the value of the harm suffered. This defense is based on the principle that one has a duty not only to take reasonable care to prevent injuries to others, but to oneself as well.

For example, suppose a volunteer from XYZ Society is setting off fireworks in an area clearly marked as a “danger” area. If a spectator who came and stood in the prohibited marked area was struck and burned, he could be partly to blame for her own injuries. The spectator should have realized the danger involved and avoided the area. The age and intelligence of the injured person is a relevant factor in determining whether there is contributory negligence. The type of conduct that constitutes contributory negligence on the part of children or people with mental or physical disabilities will be different from others. For example, failure to fasten seat belts may be seen as contributory negligence for adults, but not for children or people with disabilities who were either unable to appreciate the risks or unable to operate the seatbelt.

Volunteers are also required to use reasonable care for their own safety. If a volunteer is injured during the course of her duties, but her own conduct was a contributing cause, the volunteer must assume responsibility for a portion of the injury. For example, if a one of XYZ’s volunteers runs down a hallway with little regard for safety and trips over a loose doormat, the organization might be partly liable because it failed to secure the doormat properly, and the volunteer might be partly at fault for running in a reckless manner. If the damages were set at $15,000 and the judge ruled that the volunteer was 50% responsible, the organization would have to pay $7,500.

An organization or a volunteer may also be found contributorily negligent in respect of their own loss, even when seeking to recover damages from another party.  For example, in Sydney Cooperative Society Ltd. v. Coopers & Lybrand^[1], volunteer members of the Board of Directors for the Sydney Cooperative Society were found contributorily negligent for failing to adequately supervise and investigate an employee who was defrauding the Society. The Society’s award of damages was reduced by 50% as a result of the following statement:

I do not accept that the Society, in the conduct of its operations, should not be held contributorily negligent due to the lack of professional competence or expertise of its Board members.… Volunteer firefighters are not required by statute to perform certain functions. Board members of the Society have such a duty.

2. The injured person voluntarily assumed the risk

This defence arises when there is an agreement between two or more parties that they will participate in an activity that involves a risk of injury and they will accept the responsibility for potential harm. The agreement, whether made expressly by words, or implicitly by conduct, is entered into before the activity commences.

An example of accepting a risk implicitly can be seen in inherently dangerous activities like skiing, river rafting, or mountain climbing. Here it is often assumed that people who participate are aware of the risk and accept responsibility for their own safety. For instance, if XYZ Society  has a volunteer teaching a group of people how to ski and someone is injured, the participant may have voluntarily assumed the risks involved in the sport. However, if you have participated in this kind of dangerous activity, you will have noticed that most organizations ask participants (or parents or guardians) to sign waivers, agreeing to accept the risk.

Waivers: People can directly agree to a risk by signing an agreement or waiver. A waiver that is well written and properly explained to the individual signing it can help exempt the volunteer and organization from liability for many things. The waiver should be given to the participant (or in the case of minors to the parent or guardian) with plenty of time to read the waiver, to think about it, and to ask questions before signing.

Specifically, the form should:

• State clearly what risks are being excluded (e.g. liability for injury or for lost or stolen items)
• Be written so the meaning of the form is easily understood
• Apply to a particular situation (e.g. a particular field trip or the duration of the training that will be conducted on and off the premises)
• Be clearly understood by the person before it is signed (by printing specific risks in bold type or having someone explain the form’s legal significance), and
• Not attempt to exclude all negligence

Volunteers and organizations that depend on waivers should always retain a lawyer to determine when existing forms are adequate and offer specific advice on improving the form. A waiver is not a guarantee that liability will not be found.

Disclaimers: A disclaimer is similar to a waiver in that it is a written warning. However, a disclaimer does not ask the participant to agree or to waive anything. Instead, it is a clear statement that the organization refuses responsibility for a claim or act. It can indicate that there may be some level of risk, or that information may not be complete or accurate. For example, when food is served, there may be a posted sign stating the possibility that a peanut product may have been used in any food being provided. This disclaimer warns clients with severe peanut allergies so that they may choose not to consume the food.

When giving information or advice, a disclaimer can state that the advice provided should not be taken as accurate, complete, or up-to-date. The client will be considered to have been warned that it is unreasonable to rely solely upon the volunteer’s information.

As with waivers, a disclaimer is not an absolute bar to liability. The specific circumstances of the incident will be considered in determining if damages are warranted.

Finally, some activities simply can not be consented to by nature of the activity, particularly where it is against the law.  For example, one cannot consent to be in a knife fight, where substantial risk of serious bodily harm is likely.  A court will likely find that public policy operates to void any consent that a party claims has been given^[2].In general, consent is not a defence in the instance of grievous bodily harm or death occurring.

While this is an extreme example, it is still the case that, for any activity that is by its nature extremely dangerous and likely to result in significant bodily harm, it will not be a sufficient defense to claim consent to the activity.  Examples might include wrestling or free rock climbing (climbing without ropes or aids).  A court may well find that a waiver or disclaimer for such a dangerous activity is void. 

Organizations should look to common sense to determine whether the activity they wish to undertake would be considered extremely dangerous or likely to result in significant bodily harm.  If so, they should not seek to rely on waivers or disclaimers to protect themselves from liability.

3. The parent or caregiver of an injured person consented to the activity

Volunteer organizations that offer activities for children often require parents to sign consent forms. The consent form is written evidence that consent to the activity or risk has been given. If a child is injured, this consent may protect the volunteer from responsibility for allowing the child to participate in the activity; however, a waiver does not affect the rights of any party other than the one making it.  Therefore, a waiver signed by parents or caregivers will only protect the volunteer or organization from an action brought by the parents or caregivers, NOT from an action brought by the child.   

If, however, the child’s injuries were caused by the volunteer’s negligence in supervising the activity, the consent form will not protect the volunteer. For example, if a parent consents to a child with a heart ailment going on a hiking trip, the volunteer will may or may not be held responsible for any injuries that result from the overexertion of the child’s heart. But the volunteer would probably be liable if the child got lost and fell into a ravine due to a lack of supervision.

In the situation described above, it is important to note that the volunteer may still be liable to the child with the heart condition, even if the parents have waived their legal rights. The waiver does not affect the child’s legal rights. There may be other limits to the volunteer’s liability, such as foresee ability of harm or voluntary assumption of risk.  Whether or not the volunteer will be found liable in such a situation will be determined on the basis of a standard analysis of tort liability. The parent’s consent or waiver may affect this standard analysis in some way, but does NOT have the effect of releasing the volunteer from responsibility.

While parental consent forms are useful in many ways, particularly if a legal problem arises, they will NOT release the volunteer from his or her duty of care towards the child.

4. The incident involved a standard practice or custom

If a volunteer or organization follows the accepted standard practices of other volunteers or voluntary organizations, there may not be liability for injuries that are a result of those practices. However, each agency must consider whether they find the standard practice to be prudent and reasonable in their situation. It is important to keep in mind that no repetition of bad or careless practices will make it acceptable, regardless of how many organizations do the exact same thing. For example, it may be the standard practice in a baseball league that there is one adult to supervise every six children playing in a game. A volunteer supervising a child that is injured may be able to argue that this was a reasonable practice, and that there was no failure to supervise. Or to look again at our kayaking example, if most kayak guides insist as standard practice that all participants wear life preservers, then a volunteer who did not require everyone to wear the life preservers would likely be considered negligent.

5. The volunteer was acting in self-defense or in the defense of another

Volunteers are entitled to use reasonable force necessary to defend themselves or their clients against any other person, who, the volunteer believes, intends to cause harm. For example, a volunteer from XYZ Society is supervising a group of children on a field trip when a group of older children arrives and starts harassing a member of the group. The volunteer rushes over to break it up, but by this time, a fight has broken out. She accidentally injures one of the older children while trying to protect the child in her care. In this case, the volunteer may not be legally responsible to compensate the injured older child because she can argue that she used reasonable force to protect someone in her care. Any physical force used by a volunteer must be necessary and not out of proportion to the situation.

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[1] 2003 NSSC 35; [2002] N.S.J. No. 578 (Nova Scotia Supreme Court), (Sydney).

[2] R. v. Carriere, 35 C.C.C. (3d) 276 (AB Court of Appeal).