Our purpose is to preserve New Zealand's whitewater resources and enhance opportunities to enjoy them safely.

Public Liability

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This has been a hot topic lately since the conviction of Astrid Anderson, the Le Race organiser, for criminal nuisance.

There is a lot of uncertainty about what clubs, instructors, trip leaders and event organiser may be liable for, how they may be liable and how to reduce the potential for a liability claim.

Canoe clubs are just as liable now as they have always been. A club has a responsibility to provide a 'duty of care' to people who are participating in any event that a club organises, be it a beginner instruction course, a river trip or a race. NZ law defines canoe clubs as commercial operators when they charge money for instruction courses, equipment hire or race entry fees. Because of this the 'duty of care' a club is required to provide can be the same as that required by a professional instructional organisation, however NZ courts recognise that volunteers working for a club may not be as highly skilled as professionals.

To fulfil the requirements of this 'duty of care', a club needs to provide services that meet or exceed 'best practice'. 'Best practice' is measured against what the particular industry (kayak instruction, race organising etc.) is doing in NZ and around the world. If an accident or incident occurs and a club can demonstrate that they provided a service to the standard of 'best practice', then it is highly unlikely that they will be found liable. In fact, to be found liable to the level of 'criminal nuisance' you need to have a blatant disregard for the safety of a person, or digress hugely from the risk management plan that is in place.

While this sounds scary and difficult to achieve, it's not as bad as it sounds. The best way to avoid potential problems is to have a robust risk management strategy in place. An effective risk management strategy isn't just a document that sits and collects dust amongst the club Secretary's pile of papers. This is a document that requires careful consideration and should be constantly adapted and updated as required. This document shouldn't reveal any deficiencies in your club's practices but should just be a recording of what is already known and what is already being done. The document should detail hazards, potential and real risks, ways of avoiding or mitigating these and what to do if things still go wrong.

Effective risk management also isn't just a comprehensively filled-out form. It is using instructors, trip leaders and race organisers that have the qualifications and experience to put the written plan into practice. Just having a robust risk management strategy still isn't enough though. A club's instructors, trip leaders or race organisers need to strictly adhere to the requirements of the risk management plan. If somebody does something outside the boundaries of the risk management plan and an accident occurs, the potential for a liability claim is increased.

Also if participants step outside the boundaries of what the risk management plan prescribes, then they need to be informed that their behaviour is unacceptable and they need to step back into line. If a participant continues to misbehave,there must be consequences, for example being asked to leave the instruction course or being disqualified from the race.

So in summary, here is a checklist of ways to reduce your club's potential liability in respect of an accident:

  1. Prepare a detailed risk management plan for any activity that your club undertakes.
  2. Ensure that all your instructors, trip leaders and race organisers know the risk management plan backwards. Make copies available to everyone.
  3. Stick to the plan. Never act outside of what the risk management plan allows except where failure to do so may cause death or injury.
  4. Ensure your instructors, trip leaders and race organisers are suitably qualified and experienced.
  5. Ensure that participants are fully aware of the guidelines and standards that apply to them and ensure that these are applied and observed. Have strategies and consequences in place for the possibility of a participant stepping outside the boundaries of the risk management plan.
  6. Warn participants and spectators of any possible risks and hazards through as many means as possible.

Ensuring that your instructors, trip leaders and race organisers are suitably qualified and experienced may be challenging. The requirements that your club has for qualifications and experience should be an integral part of your risk management plan. People, who are volunteering for a club, however tend to have a lower threshold of qualifications and experience necessary in the view of the courts.

The NZRCA has a large pool of funds available to subsidise members who want to participate in River Safety or River Rescue courses. See the NZRCA website for more details. Another excellent source of information can be found on the SPARC website at http://www.sparc.org.nz/research-policy/policy-/key-projects (Legal Liability). There is also good reading and food for thought at http://homepages.paradise.net.nz/petemcd. So get your thinking caps on, pull out your clubs risk management plans, sit around and brainstorm any changes that need to happen. Then go and run your club's activities smartly and safely.

OK... now we have to cover our backsides too or Mr Plod will be beating on the tent door:
"The above article is general in nature and is intended as a guide only. No responsibility can be accepted for those who rely on its content without obtaining specific legal advice."

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