You will need public liabiliy insurance, however you may or may not be able to get it (due to not having an associated organisation, or an activity that the insurance company wont cover). But it is possible to have your jumps and not get sued too (if you weigh up the risks)
But what you need first is some legal advice - see if you can get some from legal aid or some other cheap source of legal advice.
On the assumption that you will get this legal advice, here are some pointers about negligence...
Legal liability for personal injuries or property damage is primarily governed by contract law and claims in negligence. You don't have to worry about contract law if you aren't charging anything for the use of the jumps.
Negligence however is another kettle of fish. The essential ingredients of a claim in negligence are:
1. a duty of care being owed by the provider to take reasonable measures for the safety of their clients / participants;
2. a breach of this duty of care, and
3. the breach of the duty of care being a cause of the harm suffered by the participant.
A successful claim in negligence against a provider will result in an award of damages against that provider to compensate for the loss or injury thereby suffered.
So if there was an accident, the person making the claim would need to show:
1. that you (and your group) were in charge of the jumps
2. that you (and/or your group) did not take reasonable measures to keep the jumps is a safe condition
3. that the person making the claim has a loss of some sort. This could be ongoing medical bills, cost to property, loss of earnings in the future
Usually it would only be big claims that go ahead – like if someone severely injured themselves and needed ongoing care, lost their livelihood because of the accident, or busted a lot of property. This is because going to court is costly and for small claims (around $1,000) usually it would be better to suck it up and get the council to shut the place down.
How can you avoid negligence claims? It is not that hard really. You need to:
1. Take reasonable measures to keep the place and people safe (establish no negligence)
2. Make sure that people riding the course are aware of the risks (duty to warn and voluntary assumption of risk)
Establish No Negligence
The most obvious defence to a claim in negligence is for the operator to establish that he / she acted with all reasonable care in the circumstances – that is, was not negligent.
To do this the following you need to think about:
1. Was the risk foreseeable? (You don’t need to think about getting struck by lightning, but running into a tree that is next to the jump is a foreseeable risk)
2. Was the risk significant?
3. If another group ran the place would they have taken additional precautions that would have prevented the harm?
In determining whether another group would have taken additional precautions a court will consider the following (amongst other relevant things):
• the probability that harm would occur if care were not taken;
• the likely seriousness of the harm;
• the burden of taking precautions to avoid the risk of harm, and
• the social utility of the activity that creates the risk of harm.
Duty to Warn
You need to ensure people have appropriate information about the activity so they can assess the risks to themselves personally. Ideally instructions and/or warnings would be printed out in clear language and you would obtain signed acknowledgements. Or you could do orientation days etc.
For instance, I take a lot of newbies down canyons in the bluies. Even though I am not a commercial operator, I still need to tell my potential canyoners about the risks BEFORE we set out – so they can pull out if they think it is too risky for them. No point doing this halfway through the canyon, when they can’t back out.
Voluntary Assumption of Risk
If it can be proved, on the balance of probabilities, that a participant was fully aware of and freely accepted the risk of suffering injury in an activity then this will be a defence to a claim in negligence.
It will not be a defence, however, if the injury was caused by the inexperience or incompetence of the provider, defective equipment, inadequate supervision or instruction as it is highly unlikely that any participant would have consented to accept such risks.
If the risk of harm was an obvious one then there is a rebuttable presumption that the person who suffered the harm was aware of the risk (i.e. big jumps = big stacks)
Contributory Negligence
If the accident was caused or contributed to by lack of reasonable care on the part of the participant then this will be a partial defence, according to the apportionment of responsibility made by the court between the provider and the participant. In cases of extreme acts of negligence by the participant, contributory negligence can be very high (e.g. 80 / 90%) and sometimes a complete defence.
For instance, you have warned a rider thoroughly about the risks, made sure the jumps were as safe as you could make them (i.e. good construction, no trees to run into etc), the rider went though an induction and training. Regardless the rider rides like an idiot, despite repeated warnings, and has a massive stack. His actions contributed to the accident.
Inherent Risks
A person is not liable in negligence for harm suffered by another person as a result of an inherent risk. An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care.
For instance when dirt jumping, you cannot avoid the risk of falling from height – it is part of the activity (unless of course, you don’t jump – but where is the fun of that?)
The above has been adapted from this document
http://www.oric.org.au/AAS-NSW/DownloadDocs/legals_from_vic.pdf
One can only hope that one day we follow the NZ example.
