The first moves to regulate the adventure tourism sector have been made, spurring the industry to examine issues such as standards, risk, insurance and accountability. Michelle Colman speaks to some of the stakeholders.

Various definitions of adventure travel imply risk, skill and physical effort. According to the Seattle-based Adventure Travel Association, which represents a global community of some 1 000 relevant businesses and individuals, adventure travel may be any tourist activity that includes three elements – physical activity, cultural exchange and a connection with nature.

Whether the adventure is soft, nature-based or extreme, liability lies at the very heart of the matter, and in the case of travel where the distribution chain involves multiple players, the liability can be spread among a number of them.

Andre du Toit, Director at SATIB Insurance Brokers, says, depending on the circumstances, many parties could be to blame but the greatest degree of negligence would typically fall with the person or company leading the activity. “These could be the guides themselves, but more often the company they represent is responsible for setting the appropriate operational standards to which their employees would adhere. Often booking agents are brought into the fray so it is important for each entity within the transactional channel to understand their role and duty of care and mitigate risk they are responsible for.”

For Advocate Louis Nel, adventure travel is a pet subject and he has worked closely with industry bodies involved in the sector.  He points out that countries have different laws and approaches to risk.  “For example, in Europe indemnities are frowned upon,” he says, “therefore it is imperative that the service provider provides in its terms and conditions that South African law and jurisdiction will apply.”

Nel says liability could rest with the passenger himself if he is ‘doing his own thing’ without professional assistance, or with the travel agent, tour operator or guide, or a combination of all.  “The important aspect here from a legal perspective is the network of contracts and cross-indemnities involved. Between each of the parties mentioned there should be clearly demarcated risk – profile and acceptance – and with it liability, responsibility, accountability and insurance, and this should be contained in a written and signed contract.”

Nel indicates that as the Consumer Protection Act (CPA) will play a material role in the risk scenario, liability and the indemnity, thus strict adherence is required to clauses in the Act pertaining to non-refundable deposits and cancellation (clause 17), disclosure and transparency (41 and 49), liability (48, 51 and 61) and the content of the terms per se (regulation 45).  

He says he has been asked why there is a need for travel agents to specify terms and conditions, when they are protected by the terms and conditions of suppliers and tour operators, or by indemnities. Nel’s response is that unless very specifically worded, the supplier/tour operator’s T&Cs will not extend to the travel agent’s protection.  Further, indemnities do not usually deal with issues such as limitation of liability, law and jurisdiction, domicilium, interest in late payments, passports and visas, health risks and more.  These are generally the domain of the T&Cs.  It is advisable to have both – T&Cs and indemnity.

 “The urban legend will have you believe that an indemnity is not worth the paper it is written on – sure it can be contested in court but if properly drafted and applied it should not only assist the insured in negotiating a higher deductible and a lower premium, but it is a very useful bargaining chip in settlement negotiations,” comments Nel. However, it is imperative that all CPA requirements regarding wording in the lead-up to, and signature of the indemnity, must be properly applied. Going hand in hand with a sound indemnity is indemnity/waiver signage.

An identification of all risks in the adventure activity must be identified and addressed.  Nel says this should be done by theoretical and regular brainstorming, and inspection of terrain in which the activity takes place, with the presence of relevant experts and insurance brokers.  An important aspect is products liability, as the CPA makes suppliers of products (such as canoes, kayaks and ziplines) absolutely responsible for any liability. This means there is no requirement of negligence. Furthermore, an intermediary arranging the supply can be deemed to be the supplier, and therefore liable. Where service providers are not the actual suppliers, the original supplier should be subjected to regular due diligence.

Du Toit’s guideline for those working on regulation of the sector is the adoption of a basic Risk Management model encompassing preparedness, management and recovery process (this model is outlined below).

“It is amazing how many entrepreneurs simply jump in to make a quick buck without doing any of the above,” states Nel. “Conversely, it is equally surprising that some parties will go to the ends of the earth in limiting their risk regarding passengers, but then they will engage a dubious service provider without doing the due diligence. Often price and, sadly, greed are the motivating factors.

He is also concerned at how many service providers engage unskilled employees and strongly favours vetting and training of staff, which should stretch beyond ‘hands-on’ skills to include knowledge about the CPA, POPI and insurance cover.

Risk Management Model

According to Du Toit, a basic Risk Management model would involve preparedness, management and recovery processes, which could be fleshed out to include the following:

A.            Preparedness

I.             Risk Transfer

-              Insurance

-              Access to Incident Management Services

II.            Standard Operating Practice (SOP)

-              Regulatory Compliance

-              Company Procedures

-              Skills Training / Staff Induction

-              Guest Orientation

-              Conduct of Activities

-              Risk Focus (co-ordinator)

-              Safety and Emergency Signs and Numbers

-              Adapting Safety Procedures

III.           Emergency Response Planning (ERP)

IV.          Risk Surveys

V.            Vulnerability and Capacity Assessments (VCA)

B.            Management

I.             Implementation of SOPs

II.            Building ownership and capacity

C.            Recovery

I.             Risk Analysis

Insurance – how much?

Apart from insuring equipment and assets, the biggest exposure for the adventure operator is liability.  Says Du Toit: “It is essential to engage a specialist broker who has engaged with insurers who understand the industry and, like ourselves, has designed a bespoke product.”

Satib’s Adventure Operators Liability cover indemnifies the operator against legal liability and claims arising out of death or bodily injury to any person, or damage to any property, or any other loss associated with the activities of the insured's business.  It includes all costs and expenses of litigation. 

Du Toit offers some cover guidelines below, but cautions that there are many factors to consider when determining limits, thus consulting a specialist broker is advised.

Can the excitement be managed out?

For many, the excitement of adventure tourism – especially the extreme kind – lies in its danger and risk. A debate has arisen, posing the question that if risk is too well managed, could the activity lose its perception as exciting.

Bill Harrop, CEO of Bill Harrop’s Original Balloon Safaris, takes up the counter argument: “To me this is answered by the thrill created by a sense of place, and appreciation that one could never have enjoyed such an experience if one had to train for years before participating on one’s own.

“There are many definitions of adventure tourism, but in my case it is enabling a tourist to appreciate and be aware of the risk of an adventurous experience and still have the confidence to take part, because the risk is reduced and managed by professional operators.

“Adventure tourism can be perceived as a safe but thrilling short-cut to the appreciation of the risk and sense of place, but with the risk being managed and minimised to acceptable levels by experienced professionals.”