We all know that kayaking is a high risk activity. Injury, damage and death can occur suddenly and unexpectedly, not only to you because of participation in a trip or activity but also if you injure another person while you are kayaking.
If anyone is seriously injured, that person or in the case of death, their dependants, will search out legal avenues to compensate them for their injury or loss. This article considers firstly, the rights of the injured person and secondly, your rights if you are sued in the capacity of the Club, the instructor or the member/kayaker.
1. Rights if I am injured
1.1 Personal Sickness and Accident policy
1.1.1 If the injured party is a registered Club member participating in a Club event (or even traveling to a Club event), then they are entitled to benefits under Sportscover Amateur Sports Injury Insurance Program which has been taken out by Australian Canoeing (AC) on behalf of the Club .
That policy provides amongst other matters
- Lump sum cover based on a table of maims with the maximum of $50,000 in the event of death or severe bodily injury as set out in the Schedule. For example, fracture of arm resulting in permanent loss, the payout will be $3,500.
- Additional medical expenses not covered by Medicare or private health funds up to $2,000 per claim. See policy for detail.
- Wage loss up to a maximum of $350.00 per week for one year not including the first two weeks, for which benefits are not payable.
1.1.2 If you are not participating in a Club event, you may decide to purchase your own sickness and accident policy or life insurance policy. You should check however, whether that policy specifically excludes high risk sports such as sea kayaking.
1.2 Suing the person who caused my injury – The Negligence Claim
1.2.1 For a negligence claim to be worthwhile, the party being sued (the defendant) must be covered by a public liability insurance policy or have assets, which can be used to satisfy a judgment.
1.2.2 You must establish that your injury was caused by the defendant’s breach of a duty of care. To decide this, the Court will consider the following questions- was the risk of injury foreseeable and how would a reasonable person in the position of the defendant have responded to that risk? That is, what necessary precautions should have been taken considering the magnitude of the risk, the likelihood of it occurring and the expense, difficulty etc. in preventing that injury?
The laws of negligence are complex and the results are increasingly uncertain. In a number of recent Court of Appeal and High Court judgments, the injured party has lost their negligence claim. In addition, the Government introduced the Civil Liability Act 2002 (“the Act”) in response to the so called insurance crises.
1.2.3 The Act has modified the laws of negligence. For example the Act states that if the injury results from an obvious or inherent risk or a risk warning was given when participating in a recreational activity, the injured party has assumed their own risk and cannot successfully sue another for their injury. These changes have particular relevance where one Club member is suing another for their injury. It further states that to recover damages for pain and suffering, you must have a permanent injury at the time of trial which is assessed at greater than 15% of a most extreme case.
If successful, however, a negligence claim for severe brain injury or quadriplegia, can result in an award of damages up to five million dollars or more if the need for future care is high.
2. Rights if I am sued for causing injury
2.1 What if I am sued by a member of the public when I am paddling at a non Club event
2.1.1 Injuries could occur to a member of the public by your kayak striking swimmers, other surf board riders, sailing boats etc. causing both personal injury or damage to property.
2.1.2 A kayaker can purchase a boat insurance policy at a cost of approximately $170.00 pa for a $3,000 kayak. This covers the kayak for damage, theft etc. and usually includes a $10 million public liability cover. This is a relatively low cost insurance that will also have the advantage of covering your legal costs should you be sued, even in cases where the Defendant is successful.
2.2 What if I am sued by a member of the public when I am paddling at a Club event
2.2.1 When paddling at a Club sanctioned event, the Sportscover Policy taken out by AC covers the kayaker, the instructor and the Club for legal liability to pay compensation to a member of the public. That policy has a maximum payable for one claim of $10 million and the limit of all claims in any one year is $10 million. Once the total payout is made, the policy is at an end and a new policy must be negotiated with the insurer.
2.2.2 In the very unlikely event that there are a number claims for personal injury by other affiliated Clubs throughout Australia and the AC public liability policy is exhausted, in which case the injured party would look to someone else to cover the shortfall. That could be the Club, instructor supervising the activity or the negligent kayaker.
2.2.3 The Club officials, instructor or trip leader would be able to rely on the protection provided by the Act. Section 61 states that a volunteer does not incur any personal civil liability in respect of any work done in good faith when doing community work. Community work in this context means, work that is not for private financial gain and is done for a sporting purpose.
2.2.4 However, section 64 states that protection does not apply if the volunteer knew or ought reasonably to have known that he or she was acting outside the scope of the activities authorised by the Club or contrary to the instructions given by the Club. Therefore, the message to the instructors is to ensure that he/she knows of all of the Clubs policies in relation to risks and safety precautions and adheres to them strictly. In this regard, the Club has available on its web site the Club’s draft Policy guidelines, which is essential reading for all members.
The negligent kayaker if sued personally would need to rely on his/her own public liability policy. If the kayaker has no insurance but substantial assets then those assets could be under threat. Again a good reason to have your own public liability policy.
2.3 What if a member sues the Club or instructor?
2.3.1 The AC policy with Sportscover (Australia) Pty. Ltd covers the professional liability of the instructors for legal liability up to a limit of $5 million. Further, the instructors are not personally liable while acting as volunteers in the course of the Club’s activities as set out above.
2.3.2 A Club member seriously injured at a Club event and claiming that the cause of his/her injury was the Club or its instructor’s breach of its duty of care may lose his case if it can be shown that he assumed his own responsibility. The Act states there is no duty of care where the risk was obvious or inherent or a risk warning was given, or the member has waived his rights to sue by signing a waiver.
220.127.116.11 Obvious Risks. Depending on the circumstances of how the injury occurred, the Club will argue that the member voluntarily assumed his own risk for injury when participating in the event and that risk was obvious. For example, an injury caused by an attack by a shark, or capsizing on a wave or on a beach landing are obvious and/or inherent risks in kayaking. The kayaker cannot blame another if things go wrong. As sea kayaking is a dangerous recreational activity, there is no obligation on the part of the Club to make the member aware of an obvious risk.
Whether a risk is obvious is tested by what a reasonable person in the position of the injured party would consider obvious. A non obvious risk would be something akin to a hidden trap. For example, due to the large size of a group and lack of supervision, a member is left stranded mid way through a trip to fend for himself and suffers injury (unless that was subject to a risk warning that being left alone was likely to happen).
18.104.22.168 Risk Warnings. Likewise, if a risk is specifically identified by the Club for a particular event and noted as a risk warning, then the member is assumed to take on the risk when participating in that Club activity and there is no breach of the duty of care by the Club. For example a warning that ferryboats will be crossing the path and to keep well clear.
Any risk warning given to members by the Club is of no effect if there is a breach by the instructors or the Club in enforcing a specific law that provides for the protection of personal safety in the conduct of that activity. For example, if a kayaker is injured when not wearing a life jacket when the specific maritime laws require life jackets (when more than 400 metres from shore) then the Club and instructor have potentially breached their duty of care to the member. The Club needs to enforce “the no life jacket- no paddle” rule.
22.214.171.124 Waivers. The Act has given further protection to the Club by upholding the use of the waivers. As a condition of participating in a Club activity, the member signs a waiver of his rights in the event of injury or damage.
Each member must sign two waivers before participating in a Club event. The AC waiver which each member signs annually when taking up or renewing membership and the individual trip waiver, signed and presented to the Club instructor when participating in a Club Trip.
The AC membership form contains the following exclusion:
“I agree that it is a term of my membership that AC is absolved from all liability however arising form injury or damage however caused (whether fatal or otherwise) arising out of my membership or participation in any AC Activity.” This includes a Club activity.
Again, the waiver will not be effective in the case of an injury caused by the Club’s breach of laws establishing specific practices or procedures for the protection of personal safety.
The Club waiver is different from the AC waiver. It states in part;
If the participant suffers personal injury (etc)…. while participating in sea kayaking…. and a cause of the injury was the negligence or breach of other obligations imposed by law, by any of the defendants, then liability is limited to:
- The amount which the insurer is obliged to pay under a liability policy taken out by the Club; or
- On the liquidation of the insurer the amount which the defendants can recover whichever is the lesser.
- If the defendants or any of them are not entitled at law to an indemnity under a liability policy for whatever reason, the liability is nil…
The Club waiver is in the writer’s opinion a “fairer”, less harsh waiver. It would be argued by an injured member who has signed both waivers that the Club’s waiver should apply in preference to the AC waiver, as the member is contracting with this Club and signs its waiver at the commencement of each trip. In the interests of clarity, the AC waiver should be modified to be consistent with the Club waiver.
It is very difficult to generalise about the outcome of a particular claim made when someone is injured while kayaking. The change in attitude of the Courts to negligence claims and amendments to the law of negligence by the Government has made it much more difficult for the injured member of the Club to receive compensation beyond the amount as set out in the personal sickness and accident policy obtained by the Club through Sports cover.
If the kayaker injures a member of the public, it is advisable for the kayaker to have public liability cover. If kayaking with the Club, the AC policy should cover you unless the policy limit has been reached or the insurer has been placed in liquidation. Happy paddling!
Michael is a solicitor. This article is for general guidance only.