Liability and Insurance. Need Help.

el~rio

Likes Dirt
I posted this in another thread and didn't get any answers, I think maybe the title didn't attract the people that may have had answers. Mods, feel free to delete if you fell it should be.

So me and some guys from our area are keen to get some dirt jumps going.
The are we have picked is the same area as second half of our downhill track, which is private land. It is owned by a business which backs onto the area (They let us use there land for part of our DH track, its not illegal).
I've been talking with a member of our local club and he seems keen to help us get the jumps going again, but the main problem we have come across is liability,ie who can i sue when i fall off.

So how can we get some jumps going, would leasing the land and then getting some type of insurance work and stop anyone being able to sue the owner or club. If so, what type of insurance would we need?
 

Cypher

Likes Dirt
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
 

Slowman

Likes Dirt
I see cypher has replied while I was writing. Good stuff indeed I have a few common points and some extra points worth noting.

You can not stop anyone suing anyone. What you can do is take steps to ensure their suites have less chance of success.

1. For a start you need to get some kind of public liability insurance for the club.
2. Forbid anyone but club members from using the track. This way all others are trespassers and you owe them much less duty of care.
3. you include in the club's constitution that all members cannot sue the club for more than the amount of insurance for which it is indemnified.
4. that rule must be advertised to all club members.
5. ensure all club members intending to use the track are fit and skilled enough to handle it.
6. make the track as safe as possible eg. no landings near the base of a rock wall such that there is insufficient time to get the bike under control after landing a jump before having to turn to avoid it, all ramps and jumps are inspected and built properly and not near collapse

The thing is if someone comes off big time and seriously injures themselves the question will be whether the track was safe and were there appropriate safety measures taken. If you take all these precautions it should make getting insurance easier too if they even understand what the activities of your club are. However, in insurance contracts there is a duty of disclosure on you behalf to reveal to the insurer anything that might affect their decision to insure you. So you cannot lie and say you are just riding gentle trails in the bush, you have to tell them it is a downhill club and just what that entails. They might ask for more but that is better than them turning around at crunch time and saying you never told them how dangerous it could be and denying any cover, which then leaves the club committee members themselves up for personal liability. You want to avoid anyone having to lose their house!

It sounds scary, but that is the nature of the beast. The moment you actually organise anything as an organiser you take on more responsibility - so it is critical you get it right or just don't bother at all. It is a bit different to you and just a few mates building something that you use and don't encourage anyone else to use but by organising club events or activities you are encouraging others to use the facility and that is why the club assumes a duty of care for those that use the track.

I am assuming the club is incorporated as well, if it isn't then you need to do that too otherwise "club" is just a concept in your heads and it is not a separate legal entity leaving others no choice but to personally sue the committee members. With incorporation the club becomes a legal entity which can be sued (which insulates committee members from personal liability). So club incorporation is up there with obtaining public liability insurance.

I speak from the experience of being a club secretary and having studied but not practiced law. The scheme of limiting liability to club members was first devised by Keiran Tapsell who aside from being an acting judge was also a member of Stanwell Park Hangliding Club. It was successfully tested in court too. He wrote an article on this very subject in the NSW Law Society Journal (in February 2000 if memory serves), some googling might find it. Still without a legal background it might be difficult reading.
 

el~rio

Likes Dirt
Thanks for the great responses guys. Very well thought out and you have done a great job of making it readable to your average Joe. I will read over your posts a couple more times and get in contact to with my local club.

And thanks for the sticky thecat.
 

kona_kona

Likes Dirt
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
Is it safe to assume that you hold no real responsibility for damages PROVIDED you have made the appropriate precautions in regards to track safety.

eg. There's a gap jump, you've applied padding to the back end of the landing in case some one eats it, you've highlighted and padded a tree which is further up the track in case they lose control after it and you've not installed a burning pit of fire in the gap and inserted metal spikes into the landing. If this sort of 'common sense' I'll call it, has been applied, are you fairly safe?

ie. Am I on the right track in regards to this type of liability?
 

Trevor_S

Likes Dirt
Also remember even if you do everything "right" and yet you are sued and you win and even if and costs are awarded to you (costs are what the court thinks might be reasonable not what your legal people might charge you), you can still be out of pocket several $1000 for legal fees alone.

Viva la tort law :) One can only hope that one day we follow the NZ example.
 

scratchy

Farkin Activist
Where will IMBA-AU fit in with this?
Members from memory are covered with insurance while trail BUILDING. The insurance was a little up in the air last time I talked to them so I should clarify as there was questions as to what else it covered you for.
 

mxwill63

Likes Dirt
Everybody's contributions so far i think have been great, though im having a little bit of trouble. Im just wondering why you will actually need insurance, are you trying to make it into a freeride park or something? Casue im just wondering if you will actually need it unless your inviting/having randoms come to your location, which then you may need some. Im thinking if its just your group of mates going there, keeping it a secret between close mates, im not thinking they will be so pissed off after a crash that they will sue the land owner. If you can build safely and not have to many things pointing out of your jumps which will easily cause damage if collided with, you should be fine. And at our jumps there is a sign that notes that it is a legal spot and that any injury sustained is by own rider and that its their own fault. Maybe also stating it is on private property will help also.
 

el~rio

Likes Dirt
Cause I'm just wondering if you will actually need it unless your inviting/having randoms come to your location, which then you may need some.
The plan was for it to be open to the public, I'm planning on going through our MTB club, I want them legal so they wont get pulled down. But finding a quiet spot up in the bush is sounding tempting though.

Just another question, would anyone wanting to ride them need to have a MTB license?
 

rowdyflat

chez le médecin
Having MTBA insurance [day or for the season] for everyone is an excellent idea.
Having a signed waiver is OK but may not be practical unless it is an organized event..
Have a visible sign stating that by riding there you acknowledge the risk.
 

dcrofty

Eats Squid
im not thinking they will be so pissed off after a crash that they will sue the land owner.
I think a lot of people say that beforehand when they are fit and well. When someone is confronted with paralysis or other serious injury and realise that they might need X hundred thousand dollars a year for the next 20 years or so just to have a half decent quality of life then unfortunately their ideas on wanting to sue might change.

like Trevor_S said, it would be good to take a leaf from NZ's book.
 

ChopStir

Squid
Thats 2 references to NZ, can someone point me in the right direction to know more about this. (Or a brief summary in layman's terms)

“Common sense is not so common.”
― Voltaire
 

katej

Squid
Converting an 'illegal' track to a legal track

Hi everyone

So... we have a downhill track and a xc track on private property, both very well built with input from local riders. Guys come up and ride for the weekend that would be club members of the local MTB club and therefore have MTBA insurance etc. however there is no affiliation between the club and our private track. My question is, how do we look at making this track more open to riders? We would like to look at opening this up for more people to enjoy, but also to make it cover some of the costs of maintaining the track i.e. maintaining the shuttle road, fuel for pick up cars etc. etc. Could anyone give me a quick run down on where to start and who to talk to about this? The idea would be to charge a day entry fee, like many other clubs do... The tracks are in NSW

Thanks
 

Nerf Herder

Wheel size expert
This is for NSW
http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

Refer to Division 4 & 5.

Note: I am not a legal expert so please seek independent advice before implementing any of the attached information.
This piece of legislation has been used by 2 NSW Local councils, to my knowledge to justify and address liability considerations for legal MTB trails.

Other States may have similar legislation however, this is specific to NSW.

Extracts ...
Division 4 - Assumption of risk
5F. Meaning of “obvious risk” 5G. Injured persons presumed to be aware of obvious risks 5H. No proactive duty to warn of obvious risk 5I. No liability for materialisation of inherent risk Division 5 - Recreational activities 5J. Application of Division 5K. Definitions 5L. No liability for harm suffered from obvious risks of dangerous recreational activities 5M. No duty of care for recreational activity where risk warning 5N. Waiver of contractual duty of care for recreational activities
5K Definitions

In this Division:
"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm.
"obvious risk" has the same meaning as it has in Division 4.
"recreational activity" includes:
(a) any sport (whether or not the sport is an organised activity), and​
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and​
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.​
No liability for harm suffered from obvious risks of dangerous recreational activities5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person ( "the defendant") is not liable in negligence for harm suffered by another person ( "the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in bythe plaintiff.​
(2) This section applies whether or not the plaintiff was aware of the risk.​


5M No duty of care for recreational activity where risk warning

(1) A person ( "the defendant") does not owe a duty of care to another person who engages in a recreational activity ( "the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.​
(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if:
(a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to thatother person, or​
(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).​
(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.​
(4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).​
(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).​
(6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.​
(7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.​
(8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.​
(9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.​
(10) The fact that a risk is the subject of a risk warning does not of itself mean:
(a) that the risk is not an obvious or inherent risk of an activity, or​
(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.​
(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.​
(12) In this section:
"incapable person" means a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.
"parent" of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.


Nerf's layman interpretation:

Signage at entry and exit points, and at obvious trail starts / trail heads, parking areas can cover many aspects of the "warning".
- I am unsure how you cover "incapable persons" presuming the parent is not in attendance or has never been to the site to read the warning ?? you need to check this.
- From my understanding, they don't have to read the "warning" but putting them at obvious locations covers your duty of care
Again please seek specific legal advice before implementing any of the above or attached.




 
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