Legal Liability Question...

[Dave_Snelson]

As a committee member of Madoc Yacht Club, I have been informed at a committee meeting that all committee members are liable in pursuit of damages when it comes to compensatioin claims.

Example - a person in an event organised by the club, drowns or is injured. The injured person or kin then takes action against the club for financial compensation.

I thought that our insurers would pick this up, but again, I have been told this ain't so??

Furthermore, I have been told that 30 years on from the "Fastnet Race" disaster, the organisers are losing their homes and life savings!!!!!

Is this "Fastnet" fact true?? Is the rest of it true?? Answers from the learned panel please.

If so, I hereby resign.

<hr width=100% size=1>Madoc Yacht Club
<A target="_blank" HREF=http://www.madocyachtclub.co.uk>http://www.madocyachtclub.co.uk</A>

 

[BrendanS]

Why don't the club purchase liability insurance? It's exactly this scenario that it's meant to cover. If my club didn't have liability cover, I wouldn't serve on the committee or organise any events (we actually had this conversation on the committee not long ago, when our premium went up significantly)

<hr width=100% size=1>Me transmitte sursum, caledoni

 

[hlb]

Why do you lot need a commitee to sail a bloody boat!!!.../forums/images/icons/laugh.gif

<hr width=100% size=1> Flags Solly MFBR</font color=red>
Haydn

 

[mainshiptom]

well how would you know if to go to starboard or port? more more sheet out or reef ? who would you shout at?



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[PhilF]

They need a committee to raise the money to pay the public liability premium.


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[Roy]

Used to run golf clubs for many years Dave and if its the same rules and legal liabilities as them, then the committee are only responsible for taking necessary legalised insured methods to protect their members,visitors, staff and selves from all risks./ I.e. The right kind of insurance. Can't comment on the Fastnet thing though. Cheers. Roy

<hr width=100% size=1>What does this mean then?

 

[KevB]

Had a similar problem re liability of cruise leaders, but was told that if it is made clear at the cruise meeting that all participate at their own risk and at their own discretion and it is the individual captains decision to take his boat and crew to sea, that was enough to ward off any ambulance chasers and their lawyers.

Can't say it's correct but this is what we were told to say at my Yacht club.



<hr width=100% size=1><A target="_blank" HREF=http://static.photobox.co.uk/public/images/45/99/10714599.s.jpg?ch=97&rr=16:00:39>Nirvana</A>

 

[Observer]

The basic requirements for a compensation claim to succeed, where there is no contractual relationship between the injured party (claimant) and the person from whom s/he's claiming compensation (defandant) are:

(a) the claimant must show that the defandant owed him a 'duty of care'; and
(b) the claimant must show that the defendant was negligent in discharging his duty of care.

In the context you describe, it does seem quite plausible that the yacht club committee, collectively, owes a duty of care to the members (also possibly extending to non-members participating in a club activity). If a duty of care IS owed then it must be possible for negligence to arise and for the committee to be liable for loss or injury. As mentioned above, it may be possible to exclude or restrict liability to some extent but it is generally NEVER possible to exclude or restrict liability for death or personal injury caused by negligence.

It should not be too difficult for the club to arrange insurance to cover club officials (not just the committee, could also include (say) rescue boat drivers) against these potential liabilities. Similarly, a company will often arrange insurance to protect its directors against personal liability. However, in the case of a company, the company has its own legal 'personality' which is separate from that of its directors and of course the company's liability is limited (by shares or guarantee etc) so a claim against the company will not usually become enforceable against the personal assets of its officers (although it is becoming increasingly possible to 'pierce the corporate veil'.

I'm not entirely sure of the legal personality of a club but I believe that although for some purposes it has its own personality (e.g. banking arrangements, VAT and other taxes), it legally remains an association of individuals, who collectively (on an equal basis unless the club's constitution provides otherwise) own the club's assets (and are liable for its debts). Thus, a club member cannot sue the club itself (because he would in effect be suing himself) but he can sue the management committee (or the individuals who comprise it) as the people who direct the club's affairs. In that case, legal liability will extend to committee member's personal assets.

Given the growing 'compensation culture' in this country, I think you are right to be concerned but I don't believe adequate insurance can't be arranged.

Hope this helps. I'm sure jfm would be able to add something if he's around.

Just done a little research. I think a club must be registered under the Industrial and Provident Societies Act 1965 in order to attain a separate legal personality. The Club's rulebook or constitution should throw some light on its status.


<hr width=100% size=1><A target="_blank" HREF=http://aflcharters.co.uk>Dream Dancer</A><P ID="edit"><FONT SIZE=-1>Edited by Observer on 25/08/2004 17:01 (server time).</FONT></P>

 

[Scaramoosh]

Hi Kev

I am not sure that the position as you understand it is correct. Before joining CYC I was a member of HISC and involved as Race Officer in both Club and Open meetings.

My understanding was that despite all the disclaimers, "you are responsible for yourself, you set off to sea at your risk etc" if anything happened then potentially the Race Officer would be liable for a failure of Duty of Care.

Therefore as Race Officer if you felt the conditions were too bad Cancel the race. Before you start make sure that you have sufficent Rescue Boat and they are crewed by qualified individuals .. if not abandon etc.

I guess we both should ask the Secretary / Commodore for a copy of the the Liability Insurance.

<hr width=100% size=1>To err is human, to really screw up you need a boat

 

[Johnnygil]

Well I'm glad that makes it crystal clear now

Cheers

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[Observer]

Yes, I see what you mean - typical lawyer speak: "Could be this, could be that. It all depends...."

At least I didn't charge a fortune for the advice.

<hr width=100% size=1><A target="_blank" HREF=http://aflcharters.co.uk>Dream Dancer</A>

 

[KevB]

Hi Nick,

Have a look <A target="_blank" HREF=http://www.cyc.co.uk/files/cruising_guide2.pdf> HERE </A> at the clubs cruising in company guidelines, section 8. I assume it's all quite legal?


Kevin

<hr width=100% size=1><A target="_blank" HREF=http://static.photobox.co.uk/public/images/45/99/10714599.s.jpg?ch=97&rr=16:00:39>Nirvana</A>

 

[BrendanS]

Agree, when we researched this, we were told that disclaimers, written or spoken, are a waste of time.

Liability insurance covering both the committee and any members engaged in organising club activities is really the only way to go.

<hr width=100% size=1>Me transmitte sursum, caledoni

 

[KevB]

Brendan,

Have a look at the link above a see what you think. It's what our cruise leaders base their assumption of no liabilty being put on them!!

<hr width=100% size=1><A target="_blank" HREF=http://static.photobox.co.uk/public/images/45/99/10714599.s.jpg?ch=97&rr=16:00:39>Nirvana</A>

 

[BrendanS]

Had a look. It's all quite above board, and probably sensible to do, but offers almost no protection at all. There are numerous precedents in the courts that have thrown out disclaimers.

It's not even a case of protecting against club members suing the club, it's more likely to be taken out of their hands. eg, boat A goes on a club cruise. Hits bouy, sinks. owner claims for replacement boat on insurance. when filling in form, is answers questions about what doing at time by answering 'on club'cruise. Phone call from insurance company - 'who was organising the cruise on the day', and ask lots of questions about what instructions given etc.Insurance company attempt to recover some or all of money from cruise leader.

Me, I'd like to be covered by liability insurance, no matter how many disclaimers in place. You may well have liability insurance, and your club are just covering all the bases

<hr width=100% size=1>Me transmitte sursum, caledoni

 

[benjenbav]

It's easy to get confused about this but this example may help:

Let's say I organise a trip to Cherbourg in which you participate and because the event takes place in an F9 your boat is damaged. Your insurance won't pay and anyway you think it's all my fault and so you sue me. You have to establish that I owed you a duty of care and was negligent in discharging that duty but if you can prove that, you would be awarded damages broadly designed to put you in the position you would have been in if I hadn't been negligent. In other words, if your deck has a hole in it and it's my fault, the damages would pay for fixing that. In practice, there are all sorts of issues to do with contributory negligence and so on which might affect the amount of damages. But let's leave those on one side. I am insured for this sort of claim. You would like to cut out the middle man and sue my insurer. But you can't. That's because insurance works as an indemnity so that my insurer doesn't owe you anything but I can claim back from my insurer the damages awarded against me (up to the limit of my cover and again subject to excesses and exclusions).

So, the fact that you may be personally liable doesn't mean that you can't insure against that liability.

As a separate issue, trying to exclude liability is complicated, and your club should take proper legal advice on the subject if it is a concern. Not least because someone then will owe you a duty of care for getting the advice right!


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[halcyon]

It is normal for the club to take out a public liability insurance, to cover the injury claims in the club, and also for racing. This covers any liabilty to committee members / race officers, but may well require qaulified race officers and other factors i.e. risk assesment, and is not cheep.



Brian


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[andyball]

I used to race a lot of motorcycle enduros....& boy did the premiums/entry fees for that & motocross rocket after injured riders' lawyers found a way round the supposedly airtight " I enter at my own risk etc etc etc" clauses .


One was blaming other riders for the accident,then claiming that the organisers were negligent in letting such reckless types race alongside the claimant....at least if press reports at the time could be believed.

Your club should pick up the tab for this; have read of other clubs/organisations (nb) where members refused to work for the club w/o such cover.



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[DavidWhite]

Re your club liabilities you should really look into forming your club into a Company Limited by Guarantee as this will protect all your members should a claim be made against the organisation. It is not the same as a Limited Company and is a fairly simple process with the help of a solicitor. You can limit a members exposure to a maximum of £5.00 if you so decide in the event of a claim which exceeds the clubs assets or in the event the club is wound up. All officers of the club are also protected but the best way forward is to seek legal advice. PM me if you want further information - I'm not a solicitor but have been involved in this matter for my trade association.

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[DepSol]

It is true. The GBA have gone as a limited liability company for this reason. I cant remember which type of limited liabilty however, any accidents etc within the organisation are not liable for payment by the members.

Can find out more if you like.

<hr width=100% size=1>Dom

<A target="_blank" HREF=http://www.soltron.co.uk>the website</A>