Public liability: could clubs be liable?

This article by Christchurch lawyer and kayaker Kent France was published in NZ Canoeing 00.3.


This is a general summary of some of the issues involved in public liability. The possibility of civil claims for damages in New Zealand is developing all the time and will always depend on the specific situation. A good set of sensible and safe rules of operation, and a willingness to enforce them will go a long way to protecting clubs and their members.

It is important to bear in mind the distinction between a club that is an incorporated society which is a legal entity in its own right and a club that is unincorporated. An incorporated society can be sued in its own name. A club that is unincorporated is generally just a group of people who can individually be liable for the activities of the club. For that reason incorporation is an important and sensible step for any organised club to take.

In some circumstances the actions of an individual who is representing a club can be attributed to the club. Claims are therefore possible against a club for actions of its representatives.

The individual can also have a claim made against him or her for their own actions. If the individual expects the club to cover their own potential personal liability, generally agreements need to be reached in advance. That is something that can be dealt with in the Club's rules.

The question of whether a person is actually acting on behalf of a club at the time that a claim arises can be difficult. Clear rules about how club members are to behave when doing activities associated with the club can help. Clubs are entitled to require members to abide by their rules so long as the requirements are legal. The rules can set out what happens if they are broken. For example the club's rules can state that unless necessary safety equipment is used, the member cannot use club facilities or equipment. Clubs can lawfully exclude participants from club activities if they don't follow the club's safety rules. A club's rules can also provide that in extreme situations members can be expelled from the club.

Once a club has rules, the key to their usefulness is enforcing them. This is often the hardest part. From time to time it may require members to confront problems, but if the rules aren't enforced there is no point in having them.

Exemplary Damages Claims

Possibilities do exist for civil damages claims to be brought against individuals and clubs for accidents on club trips or instruction courses. In New Zealand civil claims for exemplary damages is a developing area. These claims are usually brought by a person (or a representative of that person) who has been injured or killed because of the conduct of someone who owed them a legal duty of care. A club instructor, particularly a paid instructor, could owe a duty of this type. Whether a duty of care is owed is a matter that has to be assessed in each individual situation. All the circumstances will be taken into account.

Even if a duty of care is owed, exemplary damages claims in New Zealand are only available if a claim has come about because a person's conduct was so bad that it amounted to an outrageous and flagrant disregard for the claimant's safety, which merited condemnation and punishment.

An exemplary damages claim is essentially a signal from the Courts of society's disapproval of the conduct that is being complained about. Because of that, exemplary damages claims will be rare. That doesn't mean that they never occur. They will usually be associated with accidents involving serious injury or death where a chain of bad decisions was made by the people who should have been in control of the situation. Claims of this sort have been brought in recent years against commercial rafting operators. When these cases are examined in hindsight, it is often said that if detailed safety rules had been put in place and followed, then the accident may not have occurred. That is another reason for developing good club rules.

It may be possible for clubs to insure themselves, and their members, against these sorts of claims. If a claim is brought, it will almost inevitably involve expensive legal fees, and can lead to significant damages. Clubs should consider talking to insurance brokers about policies that might be available to cover this risk.

Exclusion clauses

A clear exclusion clause for participants on organised club events may also help in limiting the possibility of a civil claim. Exclusion clauses are not fail-safe and need to be very carefully worded. They might not cover conduct that is so poor that it attracts an exemplary damages award, nor will they cover conduct that results in criminal prosecution. They need to be very specific in excluding liability for negligent conduct as well as any potential contractual claims. Often clubs feel that appropriately-worded exclusion clauses are so daunting that they might scare participants away from trips. That is a balancing exercise, which needs to be considered along with the potential risks in not having such a clause. It may also be a matter that a potential insurer wants to take into account in setting premiums.

Overall, a good set of enforceable safety rules, which are actively promoted and enforced, will go a long way to avoiding catastrophes in the first place. If a serious accident does occur, civil claims are possible. Insurance is potentially available to clubs to protect the club and their members from those claims. The scope for claims to be brought is increasing and will always depend on the exact circumstances.

It is worth clubs thinking seriously about their potential liability and making sure that they are informed about the risks involved and ways of limiting them so that the real business of paddling can be gotten on with.

This article is designed to be food for thought. It is not legal advice and if clubs or individuals are interested in taking the matters raised further, they should take specific advice of their own.