Forum [42]

Readers’ say

Letters to the editor

Dear Editor

I was interested to read Chris Hille’s letter about Arunas’s painful demonstration that we humans are not always on the top of the food chain. Chris suggests that the other two members of the group owed Arunas a duty of care, and if they breached that duty, then Arunas could have sued them. There is a famous old English case in the 1930’s which has become the basis for much of the modern law of negligence. In that decision, Lord Atkin said that the man who fell amongst robbers in the gospel story could not have sued the priest and levite who walked past him wounded in the ditch, but nor could he sue the Good Samaritan who came to help.

What Chris seems to be saying is that if the Good Samaritan having decided to help the injured man, did not give proper first aid treatment, then he could be sued. Even further, in Arunas’s case, he seems to suggest that if the others did not have an EPIRB, then they could also be sued.

In the 1963 case Goldman v Hargreave, Justice Windeyer in the Australian High Court said, “The law casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him. The call of common humanity may lead him to the rescue. This the law recognizes, for it gives the rescuer its protection when he answers that call. But it does not require that he do so. There is no general duty to help a neighbour whose house is on fire.”

This statement has been approved recently by the High Court in 1997 in Pyrenees Shire Council v Day where Justice McHugh said, “The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage that the latter suffers.” In Capital and Counties PLC v Hampshire County Council in 1997, the English Court of Appeal decided that there was even no common law duty on a fire brigade to answer a call for help.

Where all this gets confusing is that in recent years there have been extensions of liability to sporting groups for not doing something. There have been cases where Council’s have become liable for damages suffered as a result of board riders being within the flags on Sydney beaches, and bodysurfers were injured. The most extraordinary was a decision of the Queensland Court of Appeal which awarded damages to a trainee umpire who complained that the Basketball Association had not warned her about the danger of running backwards while umpiring a basketball game. She fell over and broke both her wrists for which she was awarded $80,000. It reminds one of the famous Spike Milligan song in The Goon Show, ‘I’m Walking Backwards for Christmas’. But even in those cases, these Courts have found that there was some relationship of dependence. Bodysurfers rely on the lifeguards to keep the board riders out. The basketball umpire was a young trainee who (the court found) relied on her supervising umpire to teach her how to do it. It may well be that yacht owners who take crew out in yacht races may have an obligation to provide them with personal EPIRBs, if there is appropriate reliance on the owner providing all necessary safety equipment.

In the case of three experienced paddlers going off for a jaunt, I cannot see any such relationship of dependence. While the Queensland basketball case to my mind is just silly, one likes to think that common sense and our legal system do have a connection. It would be incredibly stupid for a society to go down the path of discouraging people from helping people in distress because of fears of being sued, or of criticising them because, with the benefit of hindsight, and in the cold analysis of a court room, some criticism can be made of what they tried to do. I just do not think the law has gone that far. There is still room for taking into account the emergency of the moment.

Where I think there is a real risk is in relation to training of, or taking charge of inexperienced people. But again, there is the situation of dependence. There was a recent case in the Northern Territory where some experienced parachutists were found liable for damages suffered by a person who wanted to go up in the jump plane to watch. As a precaution, they put a parachute on him, but for some reason, he got sucked out of the plane and made his first involuntary parachute jump. It is for this reason that the constitution of the Club was changed to limit members liability to the amount of the actual insurance cover. It is the reason why persons going on expeditions are now asked to sign a waiver. Some people object to doing this, but the solution is simple. If you are not prepared to take the risk that your experienced leader might stuff it up, then just don’t go. Or go and do it by yourself. Volunteers are generous enough to give up their time to help others. It is a bit rich to expect that they should also risk losing their houses as well. Unless volunteers have these protections, they will become extinct, and everyone really will be paddling their own canoe.

Kieran Tapsell

Dear Editor

Deary me, you people do get your knickers in a knot.

In issue 41 of NSW Sea Kayaker Chris Hille has put the finger on the cause of my comments. The Maatsuyker Canoe Club has a policy of not carrying EPIRB’s. The problem is that they are a PANIC button, with no indication to the authorities of what the situation is. It could be an ocean-going yacht dismasted, it could be a fishing boat with a broken gearbox, it could be a crashed light plane, or, as has happened lately in Tasmania, it could be a bushwalker with a sprained ankle.

In our opinion the EPIRB is equivalent to an SOS, for real life threatening emergencies – not for minor inconveniences. Arunas himself states that the consequences would have been a much longer stay in Hospital – an inconvenience! And Chris states that ‘it would have prolonged his discomfort’. Three warships, planes, helicopters, other vessels – just for inconvenience and discomfort?

By pushing the panic button, they had three warships standing by, planes searching, and no doubt other vessels were warned to keep an eye out – all at great cost of time and money to the taxpayer.

Had they paddled to Cape York, or met a fishing boat then a clear message could have been sent as to the exact problem, and the authorities could then have dispatched the best mode of rescue without a whole lot of vessels and planes being put into action.

If you are mauled by a mad dog in a suburb of Sydney, you ring an ambulance and they have a specific address to go to – you don’t set off an EPIRB and set off a general search and rescue by dozens of planes and vehicles.

I didn’t say that I wouldn’t call in outside help, I merely quoted a greater person than I – but I think you ought to read his statement in the context that he used it in. If he was dismasted in a storm of Cape Horn, then he probably believes that calling up help in that situation would put the rescuers in the same life threatening situation. I’m quite sure that if a big vessel just hove in sight and came alongside and offered help he would have accepted it.

I personally don’t believe that anybody has any God given right to go off on some adventure and just automatically expect that if they get into trouble they will just push a ‘panic button’ and sit back and let the rest of the world come to their aid.

And of course you can read what you like into Chris Hille’s final comment – “How they got themselves in the situation in the first place however…”

But it is unlikely that Arunas will be discussing this with Chris – after all, Chris probably only knows about crocodiles in his native suburb of Ashfield.

Laurie Ford
Maatsuyker Canoe Club

Dear Editor

In recent months we have seen a vigorous debate as a couple of individuals in the Club rallied against a perceived Club Executive bias against two particular sea kayak designs. All this arose, I think, from various discussion pieces on boat construction methods and the group spread issue.

One accusation (by a Mirage devotee) was that the Executive was motivated by “passionate self interest” and “personal gain”.

Which brings me to the trip report Sea Kayak Challenge: Bass Straight Crossing in Issue 41 of NSW Sea Kayaker. As I read through this account, certain phrases started to leap out at me; “we really came to appreciate the seaworthiness of our Mirage kayak”, “very stable and fast in all conditions”, “great… following or hammering into the breeze” and “riding swells… did not bog down”.
But wait, there’s more! We also got “the pump… which Mirage designer and builder Paul Hewitson fitted” (pass me the White Pages will you). Oh yes, even the retail price (but no mention of postage and handling). Great stuff!

And this is where I got confused. A Mirage paddler has accused Executive members of pushing commercial interests, yet a recent trip report (penned by one of the said Executive), didn’t once mention his self-designed kayak, its performance, or price! Yet here we have a Mirage advert masquerading as a trip report in our magazine. So, I have to ask, where do the real commercial interests lie?

And now that we have published Sea Kayak Challenge, can we expect other manufacturers to get their favourite customers to write similar glowing accounts? Please Mr Editor, never again!

By the way, I neither design or build sea kayaks, or profit from sea kayaking in any way. I paddle a hand-crafted plywood sea kayak that is not commercially available.

Mark Pearson

Dear Editor

An open letter to Prime Minister John Howard and Premier Bob Carr.

Re: Environmental river flow for the remnant Murray River red gum forest.

I have just completed, with eighteen others, a six day kayak paddle down the Murray River from Yarrawonga to Echuca. The trip was organised and conducted by the NSW Sea Kayak Club Inc. It provided me with a wonderful opportunity to experience both the river and its red gum forest.

My overwhelming impression from the trip is that this famous forest is now of (surprisingly) very limited extent and is, in large part, in poor health. I saw widespread evidence of riverwater management for farm irrigation, but I saw no evidence of its management for the forest.

Since returning from the trip I re-read an article detailing the effect of current riverwater management practices on the forest (CSIRO’s ECOS magazine, Summer 2000). CSIRO is of the view that if additional ‘environmental’ releases of water to the forest are not made then the forest will continue to die and will fail to regenerate itself. Other related management reforms are also required, according to CSIRO.

I appeal to you to bring about changes in riverwater management as proposed by CSIRO to ensure the protection and sustainable future of this once magnificent forest.

Jack Miller

Dear Editor

I had no intention of re-visiting this issue until I read Mark Pearson’s submission tonight. In response to Mark’s brief and pointed response printed in this issue, relating to “a Mirage devotee” who had concerns with motivation of the executive and a problem with club ethics. I would like to reflect for a moment on the subject that, I feel, may help him through the state of confusion that he confesses suffering.

My article in Issue 41 of NSW Sea Kayaker (Sea Kayak Challenge: Bass Strait Crossing) was submitted in an attempt to draw to the attention of the executive matters that continue to cause a number of members concern. I had no intent labouring on this issue but for Mark’s obvious need for further and better particulars, and perhaps to hasten steps to re-assess current direction within the Club.

I relate in particular to ‘attitudes’ conveyed by only a few members, with regard to articles submitted for print in the magazine, notes posted on the Internet, and to the continuity of ‘negative comment’ made from time to time at Club organised activities.

Confrontational comments reflect poorly upon the Club and its ability to fulfil its commitment to promote the sport of sea kayaking and its charter to establish and maintain good relations with manufacturers and suppliers.

I do not see fit to include copies of all such correspondence with this submission, but I understand executive members have access to the content if desired. I will try, however, to express my concern by way of example using most recent instances only.

Firstly, I wish to commend the action of the Editor who let commonsense prevail and had withdrawn from publication a reply to the Larry Gray tape-sealing saga by David Winkworth – an issue which was getting out of control, arising from un-edited personal opinion in the first instant. The episode was rapidly turning into a clash of ego’s that had potential to do the Club more harm than good.

Larry Gray’s concerns over this issue can be well understood. He, as an experienced and well-respected kayaker, a designer of note, and also having a considerable commitment to manufacturing, has a lot to lose by not reacting in the way that he has. It is necessary for members to consider fully the plight of Larry Gray before forming conclusions, to identify the cause and the effect. To be presented with an opposing viewpoint for once may enable thinking members to further understand concerns that I am attempting to address.

Secondly, a report on the Club Internet chat line on and around 02 February 2000, again emanating from David Winkworth, highlighted another lack of good judgement, and indicated a ‘passionate’ interest in bringing to the attention of members an impact incident which had further potential to draw unfavourable attention to Larry Gray and his kayak, but only if the manufacturers name was stated of course.

The warning issued was titled ‘Gear Failure’ and briefly outlined the nature of faulty ‘gear’ supplied by the manufacturer of this kayak. No such charge could possibly be substantiated. The report was clearly out of context, however well intended, and it carried the authentication and credibility of both Norm Sanders and David Winkworth when the kayak manufacturers name was deliberately and promptly pronounced as being a Pittarak. The owner of the damaged six-year-old craft made reference that his kayak was part of a fleet of hire craft and that it has been in constant use over this period with no problems whatsoever. He stated that he had good service from all of his Pittarak kayaks. It was confirmed later by Andrew Eddy that the kayak in question was in remarkable condition considering its age and usage.

The owner stated that damage was clearly caused by an impact with another craft and had nothing to do with gear failure, the kayak manufacturer or its design. Larry commented that he and his reputation as a kayak builder had been brought into focus by the personal opinions of David Winkworth relating to his views of acceptable fibreglass design and manufacturing techniques expressed in the Club magazine. He finds it difficult to accept that all of these articles and attacks are coincidental.

Articles on instances of seam failure, technical articles on tape sealing, in-depth discussions on hull design, hatch cover warnings, and gear failure warnings some how coincide with a subtle full-page colour presentation documenting the maiden voyage of the new ‘Nadgee’. And he has asked the question, is personal self-interest not a motivating factor? Larry was put in the position of seeking legal advice on these issues and was advised to convey his feelings in the strongest terms to the Editor.

The Mirage brand name over time has copped more than a fair pissling in Club publications, and so have those who choose to paddle them. Paul Hewitson holds similar sentiment to that of Larry Gray, and both are unfavourable toward the Club.

Q-Craft at Brookvale have also had a mention in recent dispatches that was considered most offensive by the proprietor.

In the light of telephone discussions with the Editor, a suggestion was put forward as a gesture of good faith. Manufacturers and retailers whom felt that articles printed by the Club that defamed them or the reputation of their product, should be offered the opportunity to present positive commentary to balance the perceived bias, at no cost to them. A fair and reasonable offering, although an accompanying apology to Larry from the Club would have been more appropriate. I feel, however, that more than a couple of pairs of socks would be required for this approach to be taken. Hence, the Sea Kayak Challenge: Bass Strait Crossing article and the advertisement from Pittarak published in Issue 41 of NSW Sea Kayaker were agreed to as no charge submissions and were offered because of the relevant parties reactions to the communications previously mentioned.

It can be seen that Mark has taken offence at the printing of such material. It can only be pondered that he is in full knowledge of the offence that certain members or the publication has caused others, especially in light of his plea to the Editor “Please Mr Editor, never again!” His response indicates clearly that he is not affected in any way commercially by any defamatory comment so published about his handcrafted plywood kayak.

This is not the case for many industry professionals, they are not in as favourable a position as Mark, and claim to suffer significant economic loss with continual unsolicited criticisms arising from within this Club. Commercial trading reputations are difficult to establish and concern needs to be expressed when members without ethics play a game of non-accountability.

The Club has an obligation to exercise a duty of responsibility and consideration to all who participate and all who dedicate their livelihood to the provision of equipment and services for sea kayakers.

My third point – with just over 200 members, the NSW Sea Kayak Club seems to be slightly missing the mark (no pun intended). The manufacturers of Arctic Raider, Pittarak and Mirage sea kayaks alone market over 450 kayaks per year in NSW. At least 50% are sold within the Sydney region. Each year these manufacturers alone sell more kayaks than the club has total members.

The statistic poses the question as to how well the NSW Sea Kayak Club is meeting the needs of the total paddling NSW sea kayaking public.

In the light of all above I was prompted to ask a few questions of manufacturers and retailers in the Sydney region most recently. Responses indicated that 99% do not recommend the Club to their clients, nor do they participate with or support the NSW Sea Kayak Club in any way. They gave various reasons.

The term “South Coast Mafia” was used on several occasions during the course of the survey to describe a Club attitude by a number of people who have been long-standing members of the Club and who have withdrawn from participation, obviously for personal reasons. A chilling thought for this sporting activity which has need of an effectively managed Club to promote safety and provide skills training facilities. The Club already relies on a limited resource of experience, spread thinly across the state. Such relationships within the fraternity are not good ones.

As a new kayakers first point of contact in many cases is with a manufacturer, retailer, or professional tour/training organisation, is it not unreasonable for the Club to have a priority to establish and maintain relationships in these areas?

At present the Club accepts by default the derogatory labelling of “South Coast Mafia” from within the industry itself, when members through Club publications conduct personal campaigns with little to no accountability, showing little respect to committed achieving professionals within the industry.

Most recent conversations with Andrew Eddy and the Editor however give me confidence that the Executive will make itself fully aware of this public relations issue. I look forward with anticipation to positive steps to building amicable relationships with all parties involved in our sport, in the best interests of paddling members of the Club across all of NSW.

Randall Jones

Editors note: The letter referred to from David Winkworth to Larry Gray concerning tape sealing was withdrawn from publication by David Winkworth, not the Editor.

Dear Editor

Several letters have appeared in these columns containing the words ‘legal action’ and ‘defamation’ over articles in the NSWSKC magazine.

Leaving aside the obvious observation that these are pretty heavy words to throw around in a voluntary sporting organization, there has been nothing even close to defamation occurring. In my previous employment, I was on both sides of such legal proceedings and have a pretty good idea of what is involved. What has been referred to as defamation was in reality an attempt to alert Club members to potential dangerous situations in equipment. Surely this is a function of a club dedicated to the promotion of safe sea kayaking, and the responsibility of the Club Training Officer.

As for the satirical writing of contributors, well, that is more a matter of taste than anything else. Being on the receiving end of humour may be uncomfortable, but is not grounds for legal action. If it were, there would be no political cartoons in the newspapers showing John Howard as a little man with flapping lips and feral eyebrows.

The policies and activities of the NSWSKC have made the Club the biggest and most active in the country. The magazine is often quoted by other club publications. Detractors are entitled to their points of view, but in the end, it is the membership which has the final say over the directions the Club takes – and from the feedback I receive, the membership is quite happy with the present situation.

Norm Sanders
President, NSWSKC