Personal liability?

[John_N]

A friend relates the tale of an incident when a boat was trying to get off Poole Quay in difficult wind conditions in the middle of the night. A crew member jumped on to the stern of a neighbouring yacht to push the boat out and his head was caught by the rotating blades of the wind generator. No serious injury resulted but his scalp required a few stitches and he took several days off from his self-employment. Prompted by the many "no-win, no-fee" solicitors advertisements flooding ITV nowadays he decided to see if he could make something out of it and claimed for compensation from the yacht owner.

The innocent yacht owner (he had been down below at the time) was subjected to numerous solicitor's letters demanding compensation. He ignored these at first but eventually placed the matter in the hands of his own insurance company. Rather than occurring the expense of defending the case in court they settled the claim to the tune of £12,000!! However the innocent owner lost his no-claims bonus as a result.

I cannot vouch for the accuracy of the details of the case but I cannot imagine that a court would have found in favour of the claimant.

The essence of this story is that the owner was told by an "insurance advisor(!)" that if he had displayed on his boat a notice to the effect that "The owner will not be held reponsible for any injuries incurred on this vessel" or something similar, then he would have been in the clear and avoided the hassle and expense.

My understanding is that such disclaimers are not worth the paper they are written on. Is there anyone out there with legal knowledge who would advise whether such notices do in fact offer any legal protection against claims.

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[Tiger Rag]

I was speaking to a client recently who was venting his anger over a similar land based episode. Apparantly a hiker had entered his land illegally, tripped and fractured his leg in two places, despite lots of prominent signs (Tresspassers will be prosecuted, Private land keep out and The owner accepts no liability for accident or injury etc.)that the so called victim must have seen, he was advised by his lawyers to settle out of court. The lawyer was of the opinion that these signs/disclaimers were no defense and he would lose the case if it went further.

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[Twister_Ken]

Whether or not the tale is apocryphal, anybody that has a wind generator a) running and b) mounted in a position to chop heads, while rafted to a harbour wall is being both negligent and unneighbourly.

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[Spacewaist]

Well said! nm

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<hr width=100% size=1>A pontification from the Panjandrum of orotund bloviation AD2002

 

[aod]

I believe that the situation re no win no fee claims in England is now so dire that it's not worth the hassle of trying to run a charter business. Someone on another boat rafted on the outside of you comes back plastered at 1am and steps on your boat wearing high heels shoes...............slips.....breaks a leg..............you receive a letter claiming compansation because you didn't have a flashing neon sign saying 'No High Heel Shoes After Dark'

The worst thing this Govn't ever did was de-regulate because it's gone mad and the lunatics are now running the asylum.

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[AndrewB]

Too true!

And how do we respond? Well, I for one will no longer take out beginners or inexperienced sailors, or allow children aboard at all, because the courts seem to judge liability in terms of the victim's supposed ability to understand the risk.

Who's the loser? As usual everyone, of course, apart from those smug lawyers fattening their wallets.

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[jamesjermain]

I am afraid I have little sympathy for the boat owner except for the size of the settlement.

A wind generator is a well known hazard and should be sited so that it cannot cause injury to crew or visitors and/or should be locked or protected in a situation like this. A notice saying the owner accepts no responsibility for a hazard of his own creating is not only illegal its also taking the piss.

Having said that I also have no sympathy for ambulanve chasing 'no-win-no-fee' laywers

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[Birdseye]

I suspect that the law is not quite such an ass - and that many of these cases would not get the level of compensation involved had they gone to court. unfortunately, court is a lottery, and an expensive one in lawyers fees. so the insurance companies cut their losses, settle out of court and in doing so encourage ever more claims.

the premiums go up and before you know it, people cant afford insurance. apparently, there are more than a million uninsured vehicles on the roads - which are of course un taxed as well, and most probably sans mot. yet i'm sure you know, as i know, several otherwise honest people who have padded an insurance claim.

i'm told that on average 40% of local authority road maintenance budgets are now being spent paying claims for damage caused by holes in the roads! which has not got much to do with wind generators, but is interesting if true.

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[aod]

I couldn't agree more about the wind generator but my point was that it's merely indicitive of the compensation culture. You can litigate for almost everything these days from the heat of your Macdonalds apple pie through to the duress caused by catching a cold on a rain swept bleary eyed channel crossing.

We all know on here that sailing can be hazardous and it's only a matter of time before the compensation culture cancer creeps in and burns a few people. It's rattled me to the extent that I have made sure I am insured to the hilt and that everyone who comes sailing with me also has their own personal insurance which includes sailing as a covered sport.

Next time you fill up with diesel and there's a little spill watch out for the person who rushes up with the Fairy and a mop lest they litigate for compensation on the grounds you knowingly and negligently exposed them to a toxic chemical poisoning risk

Watch this space!





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[Observer]

There is a statutory provision of law, which applies in contract and in tort (an area of law which applies where there is no contractual relationship between two parties but where a "duty of care" arises). That is that a party cannot by any disclaimer avoid or limit liability for death or personal injury arising from his own negligence and any notice or contractual provision which purports to exclude such liability is of no effect.

So you are right in saying >>such disclaimers are not worth the paper they are written on>> in the case of death or personal injury caused by negligence.

A disclaimer for loss or damage to goods, arising as a result of negligence or otherwise, or for death or personal injury caused other than by negligence will, in theory, be effective, subject, in the case of a contractual relationship, to the Unfair Contract Terms Act, which requires that any limitation or exclusion of liability must satisfy a "test of reasonableness".

The legal "received wisdom" of effective disclaimers/limitations of liability is constantly evolving as new cases come to court and it can be very hard to be certain what the outcome would of any particular case if it came to trial.



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[duncan]

so the only defense would have been to draw the courts attention to the large, well lit, signs in many languages clearly explaining the dangers of getting close to the wind generator............probably as it should be; especially on a quay where there is a realistic expectation that others will/may board your boat to cross to a raft etc

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[Captain Coochie]

I think im going to rename my boat "The owner is not responsible for injuries incurred on this vessel"(In short hand)
Its obvious that other people are going to now and again step aboard without permission if only to fend off,maybe im wrong but id rather they did than hear the crunch on my new wood work.
Get off my land springs to mind

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[Twister_Ken]

It\'ll do you no good

>Get off my land springs to mind<

I shouted that at the Countryside March coaches as they drove along the A4 through Chiswick. Didn't do any good though, they just ignored me.

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[bob_tyler]

Re: It\'ll do you no good

Hope you were shouting supportively!

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[Twister_Ken]

Re: It\'ll do you no good

>Hope you were shouting supportively<

Of course. In support of foxes and civilised behaviour.<P ID="edit"><FONT SIZE=-1>Edited by Twister_Ken on 28/04/2003 22:27 (server time).</FONT></P>

 

[TheBoatman]

Re: It\'ll do you no good

Is it me or is there no longer "any" defence against compo claims. It doesn't matter how stupid the person is, what signs you may have put up, whether they are involved in criminal activies, or what ever, we get shafted and pay out?

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[Twister_Ken]

Re: It\'ll do you no good

> we get shafted and pay out? <

And then have to pay increased insurance the following year because the insurance companies have got no incentive to fight 'speculative' liability claims.

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