Liability - any experts?

Neil_Y said:
In my view a deliberate act requires you too compensate a victim but an accident is an accident even if you've been a bit careless.
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Yes - but some things are not deliberate and yet fall beyond "a bit careless" into reckless incompetence. The meat of a court case if things ever came to one, is deciding what category particular actions or omissions belong to.

Pete
 
Neil_Y said:
In my view a deliberate act requires you too compensate a victim but an accident is an accident even if you've been a bit careless. As a commercial skipper I have insurance as I'm providing a service and as Pete said I would be held to a a higher standard. Question is do mates expect me to look after them? I have no idea but I'll ask them.
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That is not the view of the courts. A deliberate act is recklessness, not negligence, and is specifically excluded by my insurance policy. To successfully sue for the tort of negligence you need to establish 3 things, on the balance of probabilty.
1. That a duty of care was owed. This is a very broad concept and is often cited as a duty owing to a neighbour, famously defined by Lord Denning as the man on the Clapham omnibus, i.e. anyone you come into contact with.
2. That a loss was incurred.
3. That a reasonably competent person, in this case the skipper, would not have caused the loss.

I'm pretty sure that if you accidently gybed, for example, and injured someone you would be deemed negligent. I also believe (hope?) that my insurance policy, partly described above, would cover me in those circumstances.
I'm not sure why you think a professional skipper (which I also am) should be held to a higher standard. The commercial endorsement of a certificate of competency offers no additional training with regards to operating a yacht. Maybe the sea survival aspect post accident could come into play but nothing else.
 
Skippers have a legal duty of car to crew so you must ensure everything is safe and they cannot go overboard, harness, long and short tether U-bolt in cockpit and jackstays. If going forward in bad weather go on hands and knees. We always clipped on in bad weather and at night.
 
Neil_Y said:
I'd consider the fact that they were not forced to set foot on the boat in the first place, so they put themselves into danger by their actions. As a boat is or could be more dangerous than staying on the sofa. In contrast they stand to benefit from the exercise and fresh air.

In my view a deliberate act requires you too compensate a victim but an accident is an accident even if you've been a bit careless. As a commercial skipper I have insurance as I'm providing a service and as Pete said I would be held to a a higher standard. Question is do mates expect me to look after them? I have no idea but I'll ask them.
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The word "accident" is no longer used in many cases, "incident" being used instead and there's always a cause. Your liability could vary depending on the experience of the person hurt and whether they understood the risk of what they or you were doing at the time or, even the potential risks of just being on a small boat. If for instance I ask you, an experienced professional skipper, to haul anchor on my boat and you get your hand trapped in the (perfectly serviceable) windlass you are familiar with, then it's your own fault. However, if I ask a novice to do the same, without first training him/her, then it would be my fault. If I asked you to do something you considered dangerous I'm sure you would refuse whereas a novice wouldn't understand the danger and do as I instructed. My duty of care to you or a novice would be the same but, there's a big difference in actions/explanations I would need to take to ensure your safety.
 
Quiddle said:
I'm not sure why you think a professional skipper (which I also am) should be held to a higher standard. The commercial endorsement of a certificate of competency offers no additional training with regards to operating a yacht. Maybe the sea survival aspect post accident could come into play but nothing else.
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True but I was comparing a commercial skipper as one who must have passed his YM offshore/ocean to a boat owner skipper with no bits of paper or no bits of paper assumed to be held before you get on the boat.
 
Graham376 said:
The word "accident" is no longer used in many cases, "incident" being used instead and there's always a cause. Your liability could vary depending on the experience of the person hurt and whether they understood the risk of what they or you were doing at the time or, even the potential risks of just being on a small boat. If for instance I ask you, an experienced professional skipper, to haul anchor on my boat and you get your hand trapped in the (perfectly serviceable) windlass you are familiar with, then it's your own fault. However, if I ask a novice to do the same, without first training him/her, then it would be my fault. If I asked you to do something you considered dangerous I'm sure you would refuse whereas a novice wouldn't understand the danger and do as I instructed. My duty of care to you or a novice would be the same but, there's a big difference in actions/explanations I would need to take to ensure your safety.
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Sorry, but not true. Never assume prior knowledge is a staple in training. An accident is "an unforseen happening which results in economic loss, environmental damage or personal injury."
An incident has no definition in law, AFAIA. The 'unforseen' bit is for a court do decide whether negligence has occurred.
 
Graham376 said:
The word "accident" is no longer used in many cases, "incident" being used instead and there's always a cause. Your liability could vary depending on the experience of the person hurt and whether they understood the risk of what they or you were doing at the time or, even the potential risks of just being on a small boat. If for instance I ask you, an experienced professional skipper, to haul anchor on my boat and you get your hand trapped in the (perfectly serviceable) windlass you are familiar with, then it's your own fault. However, if I ask a novice to do the same, without first training him/her, then it would be my fault. If I asked you to do something you considered dangerous I'm sure you would refuse whereas a novice wouldn't understand the danger and do as I instructed. My duty of care to you or a novice would be the same but, there's a big difference in actions/explanations I would need to take to ensure your safety.
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Sorry, but not true. Never assume prior knowledge is a staple in training. An accident is "an unforseen happening which results in economic loss, environmental damage or personal injury."
An incident has no definition in law, AFAIK. The 'unforseen' bit is for a court to decide whether negligence has occurred.
 
prv said:
I don't think I agree with this. The phrase does come up more often when there's some sort of professional or other structured relationship, but in law you can have a duty of care to other people in a far wider range of situations. Trimming your front hedge, for example, you might have a duty of care to people passing by on the pavement who you've never even met.

The reason it matters more for charter skippers, instructors, etc is that the duty of care is easier to breach, because they're held to a higher standard by virtue of their specialist skills. The OP would only breach his duty of care if he did something no reasonable amateur skipper would do, which had a forseeable risk of the accident in question happening as a result. Mistakes are allowed, he's not required to be perfect.

Pete
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I thought that was what I was saying. Of course there is a possibility of duty of care in non professional situations, but it is more difficult to show that it was breached. The other point, as you mentioned earlier there is nothing about being on a boat that imposes any extra duty of care, although the situation may increase the possibility of harm.
 
KellysEye said:
Skippers have a legal duty of car to crew so you must ensure everything is safe and they cannot go overboard, harness, long and short tether U-bolt in cockpit and jackstays. If going forward in bad weather go on hands and knees. We always clipped on in bad weather and at night.
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You are clearly not reading what other people are posting. Can you not get it into your head what "duty of care" means? and the fact that it is no different on a boat than elsewhere, nor does it only apply to the skipper.

You are just listing methods of reducing risk and there is no compulsion to use these methods. Ensuring everything is safe is impossible and there is no definitive standard of what is "safe". A court would apply the test described in other posts to the facts of the case and make a judgement. This is what distinguishes tort from criminal law, as explained in the article referred to earlier. There is no legislation that says you have to taken the actions you suggest so what you do or did is your personal choice.
 
Tranona said:
You are clearly not reading what other people are posting. Can you not get it into your head what "duty of care" means? and the fact that it is no different on a boat than elsewhere, nor does it only apply to the skipper.

You are just listing methods of reducing risk and there is no compulsion to use these methods. Ensuring everything is safe is impossible and there is no definitive standard of what is "safe". A court would apply the test described in other posts to the facts of the case and make a judgement. This is what distinguishes tort from criminal law, as explained in the article referred to earlier. There is no legislation that says you have to taken the actions you suggest so what you do or did is your personal choice.
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In addition, surely any court should/would cater for inexperience. I, as a relatively new skipper, may not see the importance of a hazard that some old salt would see a mile off and take corrective action. We can't all be experts, especially as there is no legal requirement to hold any qualification before sailing a boat out of a harbour.....is sailing one of the last bastions of individual freedom?? Or....maybe that's a misconception and if anything bad were to happen I'd get hammered at court just the same as if I was an unlicensed driver on a road.
 
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Sea-Fever said:
In addition, surely any court should/would cater for inexperience. I, as a relatively new skipper, may not see the importance of a hazard that some old salt would see a mile off and take corrective action. We can't all be experts, especially as there is no legal requirement to hold any qualification before sailing a boat out of a harbour.....is sailing one of the last bastions of individual freedom?? Or....maybe that's a misconception and if anything bad were to happen I'd get hammered at court just the same as if I was an unlicensed driver on a road.
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Not sure there is much direct case law that involves incidents on private leisure boats, I think partly because the actual number of incidents is extremely low and perhaps because most owners insure against. In the latter case, the lawyers for the insurer will assess the case against the tests and usually advise settling. Taking such a case to court is hugely expensive, as those involved in the Hot Liquid case discovered and "ambulance chasing" lawyers find much easier cases in other fields such as road accidents, industrial accidents, medical negligence etc.
 
Graham376 said:
You had better tell the police and other emergency services that, they must all be wrong in not calling a pile up an accident, they are road traffic "incidents".
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I think the use of the term "incident" is used by the emergency services in order to alleviate any unnecessary anxiety. For example if Mrs Jones knows her husband is travelling on the M25 and she hears that there has been an "accident" on that road she will immediately go into panic mode whereas if she hears that there has been an "incident" on the M25 this could range from a lorry with a flat tyre partially encroaching on lane 1 through a felon being stopped by the police to a full blown multi-vehicle accident.
 
Giblets said:
I think the use of the term "incident" is used by the emergency services in order to alleviate any unnecessary anxiety. For example if Mrs Jones knows her husband is travelling on the M25 and she hears that there has been an "accident" on that road she will immediately go into panic mode whereas if she hears that there has been an "incident" on the M25 this could range from a lorry with a flat tyre partially encroaching on lane 1 through a felon being stopped by the police to a full blown multi-vehicle accident.
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Mate of mine, a retired police sergeant, explained the reason more along the lines of something caused it to happen as opposed to a ripe apple falling on ones head when sitting under a tree. Anyway, a bit off topic. An inquiry I attended took some time establishing whether the person injured was experienced enough to make his own decisions or, should have received instruction/been supervised, which has direct implications regarding skippers liability for crew or visitors on board or working on a boat.
 
Graham376 said:
You had better tell the police and other emergency services that, they must all be wrong in not calling a pile up an accident, they are road traffic "incidents".
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Used to be Road Traffic Accidents (RTA), now Road Traffic Collisions (RTC) or, as referred to above, Incidents. The move was made quite some time ago and was deliberate. The use of Accident implied that it was all something a bit unfortunate, not really any bodies fault. Collision tells one and all that something has happened and it needs sorting out. It's unlikely that there is no one to blame for the collision but determining that comes after dealing with the immediate aftermath.
 
duncan99210 said:
Used to be Road Traffic Accidents (RTA), now Road Traffic Collisions (RTC) or, as referred to above, Incidents. The move was made quite some time ago and was deliberate. The use of Accident implied that it was all something a bit unfortunate, not really any bodies fault. Collision tells one and all that something has happened and it needs sorting out. It's unlikely that there is no one to blame for the collision but determining that comes after dealing with the immediate aftermath.
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It used to be said that 1 in 5 motorcyclists were police officers. I wonder whether that statistic extends to boating :)
 
Sea-Fever said:
...And it looks like this phrase is everybody's friend... Volenti non fit injuria !!!...
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I don't think so. "Volenti" means there's a voluntary bit to it, e.g. if the victim climbs over a fence at a zoo and gets eaten by a lion. That's different to you inviting/allowing someone onto your boat.
 
Not an expert but I think there is a difference between the man on the clapam omnibus and the man driving the clapam omnibus.
Certificate or not you are in charge of a boat you have a duty of care to anyone who comes with you.

Can’t say I spend a lot of time worrying about it. I have the usual insurance JIK.
I do take what I think are reasonable steps to ensure my boat is safe and everybody on it isafe

Should something bad happen. It will be my fault. So the obvious thing to do is try my best to ensure something bad does not happen.
I can’t say I spend my time worrying about liability. I just worry about someone getting hurt on my watch.
 
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