Trev88 replied:

My first thought was did the tour operator know the child had a medical issue before he left or did it devlope on route. If the parents know and did not inform the opperator then I would argue they are at fault as well. Having said that the tour opperator should have a back up who refrains from consuming any alcohol or the opperator him slef should not participate. Given the parents have paid for a service they can have a reasonable expectation of that service. However if the information given to the parents indicated that the service as a guide only and that they were to be selfsuffient and went on to outline the expectations then they may get off. But I dout it.

Unfortunatly we live in a latigious (wheres the spell check) society where saying sorry costs you money. it does however highlight the need to band the tour opperators together and offer some training on their obligations (not legislation) and as the opperators are small businesses i would recomend they seek assitance from the govenment small bussiness associations or create their own.

From my expeience when people pay you for somthing and you do not expressly exclude it then the assumtion under law is it is included. The exclusion to this is if it is reasonable to expect that a person should know better. If they are taging along then I would suggest it will be difficult to prove they could have known better and have now shown reliance on the tour opperator.

My advise to anyone considering starting or who is opperating a tag along is talk to your insurance agent and go through the small print while on video camera it's amazing how indirect they become when you keep arecord of the conversation (no wild promises to get you to sign up). I would expect that in his insurance he is not covered in the same way transport workers are expected to have zero alcohol. As a work place invesigation that is his work place???.

At the end of the day the only people who will make money out of this is the lawyers.

My sympathys to both parties

Trevor

Member - Jeff M (WA) replied:

Mmmmmmmm, tricky, tricky hey...
If I were a tour operater I would have a few drinks around the camp fire and or with dinner. It would be a sad day in Australia when having a beer with your dinner was not sociably acceptable, but then he is working? Isn't he?
Would him having a few beers (this is the assumption) have made THAT MUCH of a difference to the situation?

Couldn't the parents have dirven and they guide been a passenger offering directions?

Didn't the operater have a Sat phone or HF that someone could have used?
Epirb?

To me it sounds like the parents are potentially clutching at straws here. Now no one would be happy with it happening to their kids, but would it have made a difference? It's hard to tell without more information.
I think as long as the tour operater was not rolling arond drunk and still had his witts about him then it's a non-issue. It's amazing how a little bit of being tipsy can dissapear (seemingly) in an emergency. I have been in many a situation where we were drinking away and somthing happens, someone cuts themselves, burns them selves etc etc. All of a sudden your sitting up straight, grabbing the first aid kid and seriously solving the problem with a minmum amount of hassels.
Of course this is different if he's laying flat on his back singing "baa baa black sheep" and giggling at the stars... Some how I doubt this.

dedalus replied:

Hi all,
as a "guide" in Kangaroo Island I have to said this: when I'm working/driving, by law I cant drink anything.... my driving license will immediate burned if a policeman stop me with a glass of wine in my blood .... but if the "guide" is not driving a vehicle whit passengers on board ... ????
I personally think NO drinks when working but I know it is very difficult to say in front a campfire .....

Wayne (NSW) replied:

Wombat,

The information that you have given it is really hard to make a informed comment.

Being a tour leader is not always fun. Having to tell kids not to run around the campsite after dark several times while the parents sit back. A kid falls a scream is heard and all of a sudden the parents are asking what has happened?

No matter where you go the parents are responsible for there own kids...

The way that Great Divide Tours run is that after the camp has been set, the fire lit, the BBQ set up and the billy on the fire, then the tour leaders (male or female) can enjoy a quiet ale, but under no circumstance is the leader be over the limit.

We always carry a Sat Phone on all trips and I always make sure that someone else knows how to use it. It is not much good having the phone and I am the only one who knows how to use it and I am the one who is unconscious.

Duty of care, How drunk was the leader, was there a back up tour leader, did the parents do all they could to prevent the situation from accruing in the first place, could medical help be obtained in time to prevent the disability regardless of the state the tour leader was in at the time.
A lot of question to be answered, but this could also happen on a club trip or a group of mates getting together. Someone must be in charge or organized the trip, shouldn't they take responsibility for everyone on the trip???

Wayne

Mike Harding replied:

I'll be interested to hear the final outcome, will you keep us informed? Although it will probably take 5 years and be settled out of court.

Who's liable? God alone knows! Once you get the courts involved you have _no idea_ where it's all going to end - stay out of them is my strong advice.

First of all can they prove he was inebriated? As he won't have had a blood or breath test it must be opinion? Do they have witnesses who agree? Does he have witnesses who disagree?

Second; he was not their babysitter - they are adults and should assume some (all?) responsibility for their own situation. Having said that people usually choose these types of tour because they know they're out of their depth so I guess he has an implied duty of care and it will be up to the court to decide if he breached it.

Booze wise? An accepted norm for driving a car is 0.05 so I guess it could be argued that was a baseline - then again some tasks require the driver to be at zero.

Who knows what the courts will do? But I can almost guarantee that after the stress and expense of the whole thing both parties will wish they had just let things be.

Mike Harding

Steve replied:

Are the Tag along tour operators Casualty Doctors ..or simply First Aid qualified ? Unreasonable...well thats obvious !!

Steve replied:

Footloose : Are you involved in a tag along tour operator..??

Member - John (Vic) replied:

There are a number of typical contract statements by an experienced tag along operator on the web.
These would be supplemented by a Acknowledgment / Assumption of risk (Waiver) form, No doubt drafted by experienced tort lawyers to cover today's legal situation.

After all we have no facts other than the second hand conversation described by the originator of this post as a "Related story" 'Which is going to conclude in court" so may be nothing more than a case of one operator attempting to bag the competition, further speculation could invoke further legal issues such as "Slander" for the person who continues to propagate "The Story" in a public forum.

These issues are never very clear and it would be unhelpful to speculate in any respect about the circumstances of what may or may not have occurred and indeed could be regarded as mischievous and a further propagation of the original slander.

Member - Jimbo (VIC) replied:

What was in the contract that was signed up to by both parties?

Who guaranteed what?

Did the tour leader guarantee to provide absolute medical safety?

Did he have an exclusion clause?

Was there something in the contract absolving the tour leader from providing medical assistance?

Did the participants in the tour agree to taking their own risk?

Are any of the above legitimate legal guarantees?

I'm no lawyer so wouldn't know.

Anyway, just questions I would ask if I was on either side of the argument. And I guess there would be many others.

Cheers,

Jim

Truckster (Vic) replied:

So, what could he have done

I suppose it all depends on what the nature of the disability is.. Did he choke on a pea, now he cant sneeze? or he was bitten by a snake, and is now a veggie...

Could it REALLY 100% have been avoided? If not, then all he could do is call flyin Dr on the HF, and wait...

and is it another case of "lets blame someone else"....

emmetguy replied:

I used to be a tour operator where I was in charge of a bus-load of clients, and our company policy was no alcohol consumption 12 hours prior to driving (more than the requirements of pilots I believe), and it was a fair enough rule considering our responsibility to safety of the passengers. But I was driving the vehicle with everyone on board, not just myself, so as for the tour operator, I believe he is entitled to a beer of a night time, as he has charge over his vehicle only. But what annoys me about these parents is the fact that it seems that they refuse to take any responsibility for their own desicions. What makes them think that the tour operator knows how to deal with the childs illness better than them? They are the parents after all and are familiar with any problems the child has, and it was their decision to put that child at risk by taking he/she away from its environment close to medical care. Im sick of hearing of other parties being blamed for child related injuries due to lack of proper care and supervision by the parents. 2 fairly recent similar incidences spring to mind. 1: Child gets fatally attacked by dingo on Fraser Island whilst playing on the beach. Beach is a highway. Beach is an airstrip. Beach is full of rips. Dingoes frequent the beach. Where is the supervision??? Result? Cull the last remaining pure dingoes in the land..
And I also hear that 4wds will soon be banned from car parks and probably altogether because we cant see in front or behind us and might run over a child. Believe me when I say no child of mine would be playing unsupervised on ANY beach, let alone on Fraser Island, nor would they be walking through a carpark without holding my hand, and they certainly would not be coming into the outback if I knew they had an ailment that may require medical attention, without inviting along someone trained to deal with it. My chilren certainly do not miss out on the things we all enjoy, but I am always wary of safety issues, and it doest take a lot to keep em safe and happy. But my point is: Be responsible for your own siblings and dont look for someone else to foot the responsibility when things go belly up... JMTBW..

Bob of KAOS replied:

This is half way through the trip. I wonder if the parents had a duty of care to recognise before this point that the tour operator may not be 100% sober at some future time, and should have taken steps to prevent it.

To my mind, however, the operator does have a duty of care to provide first aid, contact RFDS, and to make an emergency evacuation to an airstrip or town if necessary. From the available facts we don't know if the operator was capable or not of exercising that duty of care.

I am very cynical about lawyers, courts, judges etc They are for the most part players in an elaborate industry whose main purpose is to provide them with a very good living from the insurance premiums that you and I pay.

Perhaps there should be a lawyer present on every tagalong tour.

muzzgit (WA) replied:

There is a big difference between driving a vehicle which people have boarded and paid a fare to be transported from point A to point B with several informative stops along the way, and a tag-a-long where you drive your own vehicle, following someone who can fix a puncture, light a fire and cook up a storm in the bush.

In the tag-a-long tour, I beleive you are in control of, and are responsible for your own vehicle, its passengers, and all others in the visinity.

HOWEVER.... If the tag-a-long operator takes you to a remote location with a degree of difficulty you wouldn't normally attempt, then he MUST take all steps possible to ensure he is in a position to get you out, day or night.

tessa_51 replied:

Sounds to me as though we have struck the ever increasing situation of "something has happened - who can we blame", "how can we get some money out of this". It was a tragedy that the child suffered, but, why were'nt the parents able to take the appropriate steps, if they were available. Were they "rolling drunk" and now trying to pass off their responsibilities?
tessa