Who is in charge / liable on a club river trip?

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Who is in charge / liable on a club river trip?

Post by scottdog007 »

Say for instance a person with 3 star runs a trip on say grade a 2 / 3 river and an incident happens. Another person on that trip has 4 star leadership, but wasn't involved in running or leading it. Who is the person that is liable. The 3 star because he was organising and leading it, or the 4 star because he has the higher BCU award.

I know loads of top guys that I have massive respect for and they run trips up to water grade 5, but these guys chose not to do any BCU stars, though they have massive experience. Their ability is a lot higher than mine, though on paper I am 'more qualified'. Could I be the fall guy if something goes wrong?

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Re: Who is in charge / liable on a club river trip?

Post by denchy1 »

Firstly you arnt any more qualified in leading terms as 3 star is not a leader award, but even if you were a 4 star and you were paddling with someone who was clearly at the level of a 5 star they would take the blame.

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Re: Who is in charge / liable on a club river trip?

Post by Jim »

Keep your 3rd party insurance up to date and make sure you behave in a responsible way and it shouldn't really matter for civil actions that may arise.

I presume because you talk about 'liability' that you are concerned about being sued rather than any possible criminal charges?

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Re: Who is in charge / liable on a club river trip?

Post by scottdog007 »

Jim wrote:I presume because you talk about 'liability' that you are concerned about being sued rather than any possible criminal charges?
Yep you hit the button there. I am concerned at being sued. Admittedly with 4 star and BCU membership you pay a little bit more for the insurance cover. Can the insurers refuse to pay and say the team was negligent. Example if you leave your keys in you car and someone knicks it. The insurance will not pay out for the car if they know the keys were in the ignition.

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Re: Who is in charge / liable on a club river trip?

Post by scottdog007 »

denchy1 wrote:Firstly you arnt any more qualified in leading terms as 3 star is not a leader award, but even if you were a 4 star and you were paddling with someone who was clearly at the level of a 5 star they would take the blame.
Are you sure of that? Would you bet your house on that? At the weekend of paddling then after down the pub we talked about this. My mate (a policeman) is a bloody good paddler, good skills and loads of experience. He has been paddling for donkies years, and told us of some of the mishaps that have happened. Then finished the story off by saying he is a 3 star and as i'm a 4 star I would be liable even if he was running the trip. He is a policeman I kind of guess he knows what he is talking about.

If we were America you can bet your arse someone would want to sue all that your worth. And we are going that way. Solicitors have adverts. Injured at work free no obligation advice ...........

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Re: Who is in charge / liable on a club river trip?

Post by steddyjames »

Back in the day I got my level 3 coach. Since then I've joined club trips here and there as a hanger on but I've sometimes been more qualified than the folks leading the trip so wondered if I was somehow liable should a case be brought.

My assumption has been if I've no part in the group organisation and someone else is leading on the water I just let them get on with it and I'm no more liable than anyone else in the group would be.

As my BCU membership lapsed quite a few years ago and I'm not part of the new scheme thingy I assume my qualifications don't count for much anymore anyway.

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Re: Who is in charge / liable on a club river trip?

Post by Jim »

scottdog007 wrote:He is a policeman I kind of guess he knows what he is talking about.
There is no reason a policeman should know anything at all about how a civil case would be likely to turn out, (except that criminals are probably wasting time trying to bring civil actions against the police so he may have defended some).

My understanding is that suing lawyers will generally try to build a case against whoever is most able to pay out if damages are awarded, if you all have identical insurance cover it shouldn't matter.
Thinking back to an event nearly 20 years ago (non-paddling, but an outdoor club), a student union president was sued even though he was not a member of the club involved, or with any qualifications or experience in the activity, the lawyers decided that because he had the union to fund him if required, that they would try to prove a hierarchy of responsibility ending with him. I'm sure it was unsuccessful, but as you can imagine the knock on effects were felt by all university clubs of all types.

As for the possibility of the insurers trying to wriggle out of covering you, possibly. Another sport had a fatal accident some years ago and there were issues over the way the broker had sold the policy. It took something like 5 years to resolve the court cases to decide if the organisation was covered by insurance (they were) before the family could proceed with thier action. In the mean time the police decided not to press criminal charges, but all in all the whole thing took about 8 years to clear up and was a nightmare for everyone involved.

If we spend too much time worrying about these things we will never get on with our sports!

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Re: Who is in charge / liable on a club river trip?

Post by scottdog007 »

Not too worried, just trying to get a discussion going on of other peoples thoughts.

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Re: Who is in charge / liable on a club river trip?

Post by freddie »

steddyjames wrote:My assumption has been if I've no part in the group organisation and someone else is leading on the water I just let them get on with it and I'm no more liable than anyone else in the group would be.
I've always been led to believe that if you're negligent in your actions, including letting someone else do something wrong with no protest, that you are liable to some extent if you are experienced enough to know better.
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Re: Who is in charge / liable on a club river trip?

Post by Adrian Cooper »

denchy1 wrote:Firstly you arnt any more qualified in leading terms as 3 star is not a leader award, but even if you were a 4 star and you were paddling with someone who was clearly at the level of a 5 star they would take the blame.
The person who 'takes the blame' is the person whose fault it is, not some arbitrary bloke with qualifications. That's no way to use a justice system.

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Re: Who is in charge / liable on a club river trip?

Post by MikeB »

scottdog007 wrote:My mate (a policeman) is a bloody good paddler, good skills and loads of experience. He has been paddling for donkies years, and told us of some of the mishaps that have happened. Then finished the story off by saying he is a 3 star and as I'm a 4 star I would be liable even if he was running the trip. He is a policeman I kind of guess he knows what he is talking about.

If we were America you can bet your arse someone would want to sue all that your worth. And we are going that way. Solicitors have adverts. Injured at work free no obligation advice ...........
There are some people who are of the view that being the most qualififed person may make one potentially the most likely to be sued were it to go pearshaped. This assumes of course that it could be shown that you were in some way responsible, and negligent. Just because you hold a 4 star and your pal only has 3* does not automatically make you liable. Nor indeed more likely to be sued. But you might be.

(Not quite sure why his job makes him an expert on possible liability in a civil case.)

As we're not in America, the situation there is irrelvant. Also, don't confuse H&S legislation with possible civil liability.

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Re: Who is in charge / liable on a club river trip?

Post by DaveBland »

Please excuse my ignorance, but I don't understand?
If it's a paid for trip and a qualified instructor is taking folks down a river, then I'd assume the organisers would be liable. If it's not paid for, isn't it just a group of people paddling together?
Because it's a Club, does that make the better paddlers responsible for the less experienced?
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Re: Who is in charge / liable on a club river trip?

Post by GoldTopo »

Canoeing is an assumed risk activity.
You know it's potentially dangerous before you start.
For someone else to be liable for any injury to you, they would have to be shown to have been negligent, not just have a bigger BCU badge.

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Re: Who is in charge / liable on a club river trip?

Post by steddyjames »

GoldTopo wrote:Canoeing is an assumed risk activity.
You know it's potentially dangerous before you start.
For someone else to be liable for any injury to you, they would have to be shown to have been negligent, not just have a bigger BCU badge.
...if Carlsburg could create a legal system......

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Re: Who is in charge / liable on a club river trip?

Post by Yakdiver »

A compensation society welcome to the real world
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Re: Who is in charge / liable on a club river trip?

Post by davebrads »

Bad things have happened on river trips, but as far as I know, nobody has been sued for compensation as yet. The law in these circumstances is fairly sensible, in order to place blame it would have to be shown that someone was sufficiently more experienced and knowledgeable than the injured party that they could reasonably be expected to be responsible for them, and they will have to have made some pretty bad decisions that could be shown to have led to the incident. Qualifications will be taken into account, but are not the only factors that will be considered. Having qualifications could also help a defence - if you can show that you have followed the training you have received, then it will be difficult to prove you are negligent.

I refuse to allow the potential for claims to affect what I do. When leading a group of less experienced paddlers, I look to take steps that seem reasonable to me to prevent anybody getting (seriously) injured. This will include not leading on rivers where I don't consider I can handle likely outcomes, and also taking account of the ability of individuals within the group. It is a sad fact that many paddlers will not lead groups because of the fear of litigation, and this fear is often fostered and spread by people that should know better. Remarks like:
Yakdiver wrote:A compensation society welcome to the real world
don't help anybody.

On harder rivers the group dynamic is quite different, it is a group of peers and everyone takes on the responsibility for themselves.

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Re: Who is in charge / liable on a club river trip?

Post by paulox12 »

Everyone on the trip would have a duty of care to each other and the well being and safety of the group, having said that if you held the higher qualification you have a duty of care to ensure that goes beyond that of the trip leader (if they are lesser qualified than you) as in your example, trip leader 3star, hanger on 4 star leader,

It would be seen in a civil case that you as the person with the higher qualification should have stepped in and taken control if things go wrong, or foreseen that things could go wrong, in a civil case it is general brought against an individual who the effected party in person or family of think may be at blame, this is why we have comprehensive membership.

This is of course a very complicated subject with no written in stone definitions and each case would be judged on its own individual circumstances, but as a rule it would not only be the person leading the trip that could wind up in a civil case but also who ever could be blamed ie the 4 star leader sitting at the back or tagging along.

in short if you hold a professional qualification (by this i mean 4,5 star leadership or coaching awards) you have a duty of care to the party you are with weather you are in charge or not,

I have personal experience of this happening, thankfully not me but some friends of mine who where Scuba diving instructors who where part of a group of divers one of which got into trouble and it all ended very badly, my friends where not diving with the folks who had a problem but they where diving of the same boat, the family of the victim successfully brought a civil case against my friends and won, thankfully all professional scuba diving instructors now have to hold there own professional liability insurance as well as the NGB cover,

food for thought! not wanting to put a downer on this but be careful folks

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Re: Who is in charge / liable on a club river trip?

Post by Adrian Cooper »

I do not agree with your interpretation of the law with regard to duty of care. I really do not believe that a duty of care is owed in these circumstances. Now if you were an appointed trip leader or were being contracted to look after someone then that would be a different matter. But to suggest that you owe a duty of care simply because you hold a qualification must be nonsense. Can you quote any precendence?

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Re: Who is in charge / liable on a club river trip?

Post by DaveBland »

Let's all sign wavers before we get on the river then.

The OP was talking about a 'Club' trip. I'd assume that any club would or could ask members to sign a waiver absolving them of any responsibility as part of the membership process.
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Re: Who is in charge / liable on a club river trip?

Post by davebrads »

paulox12 wrote:I have personal experience of this happening, thankfully not me but some friends of mine who where Scuba diving instructors who where part of a group of divers one of which got into trouble and it all ended very badly, my friends where not diving with the folks who had a problem but they where diving of the same boat, the family of the victim successfully brought a civil case against my friends and won, thankfully all professional scuba diving instructors now have to hold there own professional liability insurance as well as the NGB cover,
Was this a paid for course or experience? What were the circumstances? Was somebody found to be negligent? Without these details this is exactly the kind of scaremongering that I was talking about in my earlier post

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Re: Who is in charge / liable on a club river trip?

Post by paulox12 »

I should have put in my earlyer post that i am not in the Law profession or do i have a vast experiance of civil law and my comments are only based on personal experiance, i have looked on the net for clafification and as i said it does seam to be a grey area, and i could well be wrong and if so please correct me.

davebrads wrote:
paulox12 wrote:I have personal experience of this happening, thankfully not me but some friends of mine who where Scuba diving instructors who where part of a group of divers one of which got into trouble and it all ended very badly, my friends where not diving with the folks who had a problem but they where diving of the same boat, the family of the victim successfully brought a civil case against my friends and won, thankfully all professional scuba diving instructors now have to hold there own professional liability insurance as well as the NGB cover,
Was this a paid for course or experience? What were the circumstances? Was somebody found to be negligent? Without these details this is exactly the kind of scaremongering that I was talking about in my earlier post
Dave, my friends where professionals on a day off who booked two places on a charter boat to dive two wrecks, they did not know anyone else on the boat or where part of the group who got into trouble, they where diving as a pair on a different part of the wreck when the incident happend, they where in no way acting as paid professionals on that day however they did make their living as diving instructors. the family of the decised brought a civil case against then, on the grounds that as professionals they should have spotted that the group who got into difficuly where not adequatyly equiped or experianced to carry out the dive, and as i said they won.

My intention was not to scare monger i was mearly putting a different angle on the thread, if my comments have been taken out of context i apologise, however my story is true and acurate so feel free to form your own conclusions,

as to weather the original post would or could be treated in the same way, i dont know, and my comments where only based on the above, i hope someone on UKRGB is in a position to clear this up.

Paul

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Re: Who is in charge / liable on a club river trip?

Post by DaveBland »

Blimey! Was that under UK, Euro or "Jonny Foreign" law that they were sued?
Disturbing to say the least!
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Re: Who is in charge / liable on a club river trip?

Post by MikeB »

DaveBland wrote:Let's all sign wavers before we get on the river then.

The OP was talking about a 'Club' trip. I'd assume that any club would or could ask members to sign a waiver absolving them of any responsibility as part of the membership process.
Almost certainly a waste of time. A court is very unlikely to support any attempt to limit liability in such a way. Indeed, it would be likely to view it very negativly as it would be regarded as a blatant attempt to absolve oneself from any/all liability.

(I'm not a lawyer, but I recall this from a module on contract law which I studied as part of a business degree - I also took legal advice on the subject many years ago, albeit in the context of a business idea I had at the time.)

Which leads to what could well be a different situation, that where someone has set himself up to lead trips commercially, where a whole range of other aspects come to mind. Then, there's a contractual obligation, not to mention a formal "duty of care" to the customer.

Irrespective of the basis, it still remains fact that one is only potentially liable if found to have been negligent in some material way. To my knowledge, there is no precedent in law to show that the average person paddling with his buddies is at real risk. I echo davebrad's point about needing to know all the precise details of what seems to have been a diving tragedy.

Which is not to say, as I mentioned before, that there are people who feel otherwise. For the record, two people I am thinking of both have excellent professional reasons (one is a professional coach, the other has sound professional reasons) for not wishing to involve themselves in any context where they could possibly be perceived as having been the "leaders" of what could possibly be described as a formally organised group of paddlers. I don't want to elaborate on the specifc context, so please don't ask.

I guess it's one of the excelelnt reasons for being a member of the BCU (or SCA/WCA) - third party liability insurance is a good thing to have. Just in case.

Mike.

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Re: Who is in charge / liable on a club river trip?

Post by YvonneB »

The law of negligence is mostly common law and is therefore constantly changing with society's expectations and case law. Too many peoples' perceptions are coloured by hearing of US cases where the case law is different. However I am amazed at the example given of the two off duty diving instructors as it is a completely different interpretation of duty of care to any I ever saw when I was studying law years ago and I do not know how it could be justified.

There is difference between a moral duty of care ie. if you are in a party of paddlers you all have a moral duty of care towards each other, and a legal duty of care which is normally only when someone is in a paid or professional position with respect to the person who has the accident. I have been on a sea kayaking commercial trip where a grade 5 coach was taking part with his wife as a pleasure paddle, he was not leading it. I cannot believe he would have been held legally responsible if anything had happened which could be interpreted as negligence. Ive also known more experienced but non professional paddlers who were friends of the instructor infotmally join a commercial trip to give a better ratio of experienced to inexperienced paddlers, a very sensible idea but horrifying to think they may be laying themselves open to civil action if it goes pear shaped.

I find it hard to believe that English law will find a duty of care falls on one person because he was more experienced/better qualified than someone else. Otherwise friends paddling together would possibly be suable by their companions and no one could ever take part in any activity with acquaintances, let alone a risky sport.
Perhpas there is a helpful paddling personal injury barrister out there who could shed some light.

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Re: Who is in charge / liable on a club river trip?

Post by jmmoxon »

Where an individual has not created a situation which may cause harm, no duty of care exists to warn others of dangerous situations or prevent harm occurring to them; such acts are known as pure omissions, and liability may only arise where a prior special relationship exists to necessitate them.
http://en.wikipedia.org/wiki/Duty_of_ca ... nglish_law

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Re: Who is in charge / liable on a club river trip?

Post by jmmoxon »

The resounding test attempts to reconcile the need for a control device, proximity of relationship, with forseeability of harm. Lord Oliver's speech in Caparo Industries plc v Dickman surmises the test for a duty of care:
The harm which occurred must be a reasonable foreseeable result of the defendant's conduct;
A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage;
It is fair, just and reasonable to impose liability.
In reintroducing the need for proximity as a central control device, it has been stated that these three stages are 'ingredients' of liability, rather than tests in their own right. For example, liability can arise between complete strangers, where positive acts involving foreseeable physical harm occur; where negligent omissions and misstatements occur however, it is necessary to show a proximate relationship, as well as a forseeability of harm.


It has been established at common law that those who attempt rescue are owed a duty of care by those who create dangerous situations, in which it is forseeable rescuers may intervene. This duty can apply to professional rescuers – such as doctors or lifeguards – as much as ordinary individuals, and may even apply where the rescuer engages in a careless or reckless rescue attempt.
So I guess from the above that a qualified coach on the trip could be held accountable if they didn't do anything to rectify the situation, provided it could be proved that the injured party wasn't experienced enough to make their own decisions.

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Re: Who is in charge / liable on a club river trip?

Post by james fleming »

…before I ramble on, I’m no expert / lawyer or like, but would say this on the matter, as I understand it.

Civil law is there to regulate the disputes between individuals over the rights and obligations people have when dealing with each other. Areas include contract law and the law of ‘tort’ (In England and Wales- not Scotland).
A tort is a civil wrong. In this case I would imagine the tort for suing would be ‘negligence’.
To sue for negligence you need to have established a Duty Of Care (DOC) between the two.

I would imagine, in your hypothetical case, the club trip with a three star person in charge on grade 2/3 and an accident happens…

The person making a claim needs to establish the following points:

Did the defendant owe the claimant a DOC?
Was the defendant in breach of that DOC?
Did the claimant suffer a loss as a result of the breach?

So, the person taking the official club trip out on grade 2 /3 water do they owe people they take out a DOC? I would say so. More so if those people are novice and / or new to the sport.

Was the defendant in breach of the DOC? Well, if they are a 3 Star paddler working in the BCU guidelines they should know their limitations for that award. In other words, it’s not suitable for grade 2 / 3. In addition if it is a club trip and it is run on grade 2 / 3 water and it’s led by a 3 Star person, it’s out with the remit.

Did the claimant suffer a loss as a result of the breach? Well, I dunno, it’s your scenario. But let’s say they did.

One last thing you could add to this. Was it foreseeable? In other words could an accident like this be easily foreseen? Lets just say it was. The club knew it was being organised and the person taking it knew it was out with his qualifications.

If, so far we have answered yes to everything, we’re almost there to a successful claim.

What about the 4 star leader though? Well they might have been there, but they were not the name in charge and not the direct person who had that duty of care. But what about the question that people with the higher qualification are sued? Well, IMO, on this scenario they try and get someone, as mentioned here already, with the most amount of money to pay out. They might be the 4 Star person under Vicarious Liability. In other words, he was there, he has a ticket, he has loads of insurance, he should know better and he’s the easy meal ticket.

However! There are defences afforded to the defendant. In this case I would imagine it would be Volenti non fit injuria (to one who is willing no harm is done).
For example, Murray V Harringay Arena Ltd (1951)…bacically parents and kid went to the ice hockey. Kid, sitting in front row was hit by the puck. The claim was unsuccessful as they had voluntarily undertook the risk.

Kayaking is an inherently risky sport. It is an assumed risk sport! People pay the money either through club membership, trip fees or whatever.


So, to the question. ‘Who is the person that is liable?’

IMO, the person with the 3 star award.

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Re: Who is in charge / liable on a club river trip?

Post by peteyippee »

In other words, he was there, he has a ticket, he has loads of insurance, he should know better and he’s the easy meal ticket.
The BCU and similar liability insurance is there to pay out when you are found to be guilty of negligence , not innocent ,so with many of these grey areas , at least you should be a BCU member or take out your own public liability jnsurance to ease your worries . To be found guilty of negligence you have to have acted ,within your experience and qualifications ,obviously negligently. Taking complete novices on grade 3 without bouyancy aids is definitely negligent . Being on a river trip with peers and a river leader when an accident occurs doesn't necessarily make you negigent or responsible . there needs to be good evidence that ,within your experience, you knew the leader was acting grossly negligent and you would thus have had a duty of care to the other paddlers to bring attention to this .

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Re: Who is in charge / liable on a club river trip?

Post by davebrads »

paulox12 wrote:Dave, my friends where professionals on a day off who booked two places on a charter boat to dive two wrecks, they did not know anyone else on the boat or where part of the group who got into trouble, they where diving as a pair on a different part of the wreck when the incident happend, they where in no way acting as paid professionals on that day however they did make their living as diving instructors. the family of the decised brought a civil case against then, on the grounds that as professionals they should have spotted that the group who got into difficuly where not adequatyly equiped or experianced to carry out the dive, and as I said they won.
Ok, I retract my initial reaction. This is totally crazy, and I didn't believe the law was such an ass. It is worrying, but I still won't allow it to change what I do.

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Re: Who is in charge / liable on a club river trip?

Post by Frogger »

My BIGGEST concern with groups is conditions.

A group goes out on a trip. Organising the trip takes ages. Maybe travelling takes ages. They get there and then paddle conditions they might not - just cos they got that far.

I reckon one big thing ALWAYS to bear in mind is - no shame in saying no once you get there.

I knew an experienced paddler who took people on a tidal river. They got there late but (despite it being a famously dangerous tide) went anyway. They ended up in what could have been a very dangerous situation (problem was tide going out not in, left them walking though a notorious mud bank).

That was a man most people on here would regard as a paddle leader - ego got in the way!

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