Reasonable Doubt: Charging backcountry users for rescues would put lives at risk

Another news story of a backcountry rescue triggers some to demand charging lost hikers and out-of-bounds skiers. Kevin Yee gives a lawyer’s perspective and explains why this is a bad idea.

Last November, I flew to Nepal for a trip of a lifetime. For two weeks, I trekked through the Himalayas and marveled at the landscapes. Eleven months later, I see those same landscapes in news footage as the backdrop to Nepal’s deadliest trekking disaster. Last week, an avalanche and blizzard struck near the high mountain pass of one of the country’s most popular treks. It hit during peak trekking season when the weather is generally at its best and the trek at its most populous. By one account, 1.8 metres of snow fell in 12 hours. It left villagers, guides, porters, and trekkers stranded, frozen, and buried. At the time of writing, the death toll reached 39 and 500 were evacuated by military helicopters. Disaster truly struck at the worst place and at the worst time.

The news reporting has mostly been of the sheer magnitude of the disaster and how much of a freak occurrence the storm was. There has been relatively little finger pointing.

In contrast, when we hear news of search and rescue operations in our own backyards, there is usually a chorus of blaming that follows. That lost hiker was totally unprepared! That backcountry skier shouldn’t have gone alone! And during this public outcry, the usual debate returns: should thrill seekers be required to pay for their own rescue operations?

For those in favour, the argument is usually summed up as this: the thrill seeker takes the risks and so should bear the burden of having their lives saved. If they aren’t paying the thousands of dollars to rescue their lives, then who will? Me, the taxpayer?!

The B.C. Search and Rescue Association adamantly opposes this. They say charging for their rescues will deter people from calling for help and from cooperating with rescue operations. This puts lives—their own and those of rescue volunteers—at further risk. For the search and rescue teams, their goal is to save lives.

Legally speaking, can someone be compelled to pay for their rescue? Is there a legal obligation to foot the bill? Probably not. The rescue organization or government body seeking payment would need to argue that the debt comes from a breach of contract. In other words, they are out of pocket for services rendered to a party who contracted with them for those services. The grateful adventurer needs to fulfil his or her end of the bargain.

The difficulty from a legal standpoint is to show a contract even existed. I’d be hard pressed to find one. After all, when was the contract made? During the frantic 911 call? When the first responder shows up and administers first aid? There isn’t exactly a back and forth negotiation. “I need help!” and “We’re on our way” is probably insufficient to establish a contract and the legally binding obligation to pay. It’s not as though the voice on the other end of the satellite phone is quoting rates and prices. You’d have to argue that the caller agreed, in those frantic moments, to pay for whatever price it took for their life to get saved.

Whether or not a court is satisfied a contract was entered, it would have to decide whether the contract should be enforced. In other words, even if there was a contract, should it order the rescuee pay the bill? The court would have to consider the obvious inequality in bargaining power. A hypothermic snowshoer isn’t exactly in a position to negotiate for life saving services. The court might be reluctant to enforce any contract when one party was in a life or death situation at the time the contract was made. They would take serious consideration of the duress of the rescue. Instead, it might find the contract invalid.

For now, this debate is predominantly a political one. Collecting money from a rescuee would likely require legislation (and the necessary political will). It could take the form of administrative fines but how is that feasible? You could institute a fine for leaving the perimeter of ski resorts but what about the backcountry where there are no clear boundaries? Make administrative fines for “unpreparedness” or “recklessness”? It sounds pretty difficult to enforce.

Conversely, there could legislated fees. For examples, hourly rates for helicopter fly bys or flat rates for searches by the day. There is, after all, legislation listing fees for ambulance services. Even with this in place, you would have to contend with the overhead of administering fees, collecting fees, and hiring lawyers to enforce them.

Whether or not we create this type of legislation, it seems to me that the threat of having to pay for your own rescue won’t stop anyone from enjoying the outdoors. It won’t even result in better preparedness. The only impact that I can see is what the search and rescue teams are afraid of—charging for rescues will put lives at risk. As tempting as it may be to blame someone who finds (or to some, “puts”) him or herself in a scenario requiring rescue, would recovering any of the rescue fees be worth that? If so, then charging for rescues would be an awfully brutal way of clawing back some of the taxpayer dollars spent.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.