negligence, duty of care & legal mumbo jumbo on informal social rides

Discussion in 'Australia' started by B1, Oct 2, 2011.

  1. B1

    B1 Carbon-based bipedal

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    been following this thread with some interest: Profesionally organized rides. Risks and responsablities

    a few of us got talking about the legal side of non-professional rides on that thread, so figured a separate thread for informal social rides might be handy. we had a social ride with 50+ bikes yesterday so the legal stuff gets pretty relevant.

    you read about this legal shit and get tempted to just not get a group of riders together, but we thought bugger it, its fun sharing dirt riding with others so we'll just get to know the legal side of things and try to make sure we are covered....

    if reading about legal mumbo jumbo makes you break out in a rash, just skip to the third section below called Defences Against Legal Action.

    FIRST THE GOOD NEWS
    while we've been heading towards the USA's sue "everyone approach", australian law has been slowly responding to the average aussie's disgust, and new laws have been coming in to curb the more ridiculous types of cases. e.g. victoria's got a few good amendments... good samaritans (providing assistance, advice or care to another person in an emergency or accident) cant be held liable for any harm they cause. the same goes for volunteers providing a community service through a community organisation. and saying sorry when an injury happens cant be used as an admission of liability provided if fault hasnt been acknowledged.

    in queensland, two statutes in particular - the Civil Liability Act 2003 (Qld) and the Personal Injuries Proceeding Act 2002 (Qld) - have made it more difficult in claims of negligence. also disclaimers and exclusion clauses are carrying a lot more weight nowadays. you can read more about how aust law is clamping down on over the top litigation here.

    The Qld legislation says: "A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm", and hopefully other States are moving in a similar commonsense direction.

    BASIC OVERVIEW
    in the other thread sleepy john found some good links on legal issues for non-professional events. here's a rough summary, but dont rely on this as legal advice. just thought its worth getting an overview of this stuff and a thread for discussion on the legal side of informal rides.

    okay..... legal liability mostly falls under the law of contract and law of negligence.
    contract doesnt apply to informal social rides as no one is paying for the ride (e.g. there's no contract established), so only negligence applies.

    so what about the law of negligence? essential things to establish for a claim are:
    1. a duty of care being owed by the provider to take reasonable measures for the safety of riders
    2. a breach of this duty of care
    3. the breach of the duty of care caused harm to a rider.


    the law does not automatically impose a duty of care, but it probably will when someone assumes responsibility for all the riders.

    if the court reckons a duty of care is owed, it then decides what is an appropriate level of that duty of care.
    then it determines if the provider acted reasonably, or did breach this duty of care.
    example: inexperienced riders could find themselves in a situation suited to more advanced riders. if the provider did not explain it was for advanced riders, and harm results, then there could be the basis for a claim due to a failure to adequately instruct, advise and perhaps supervise the group.

    note, even if no one is seen as the "provider" of the service (e.g. taking responsibility for the group), the whole "duty of care" thing still applies to ordinary citizens, but obviously to a much lesser extent.

    DEFENCES AGAINST LEGAL ACTION
    it looks like a major first step is make sure no one is seen as the "provider" who is taking responsibility for everyone. when we do a snail trail ride, we ensure no one is seen as the central organiser, or person taking responsibility for the ride and riders. we often state it is just an informal social ride and that anyone is welcome to tag along. any roles like leading, sweeping and corner marking are shared among the group which makes it (hopefully) obvious that no one is taking personally taking responsibility for everyone.

    Dont charge for the ride!. bit of a no-brainer, but if you charge for the ride you have established a contract and enter a legal minefield. if you are doing a barbecue and collecting money for the snags you'll need to make it obvious it has nothing to do with the ride.

    if by some chance the court still thought someone was responsible (e.g. they are a "provider"), the next step is showing the provider acted with reasonable care in the circumstances:
    • was the risk of harm foreseeable and not insignificant? (we state there's a risk of harm in our disclaimer)
    • would a reasonable operator have taken additional precautions that would have prevented the harm? (we make sure any rider reads up about our safety concerns, corner marking system etc on the website before coming along).

    If it can be proved that if a rider knows and accepts the risks then it gets a lot harder to make a claim in negligence (again, our riders have to read the disclaimer before any ride). there's also the concept of "inherent risk", where its simply obvious that motoribike riding can lead to harm no matter how much care is taken. also, if a rider is harmed as a result of their own actions (e.g. too fast for the terrain) then of course it gets much harder to make a claim.

    Waivers and disclaimers were not all that effective for a long time, but australian law is now giving them much more power to limit liability. we use this disclaimer and just make sure its on any ride thread, saying any rider must read and agree to it before coming on any ride. note, in victoria at least it looks as though a disclaimer must comply with wording set out in the Fair Trade Act. it would probably carry even more weight if riders signed a printed copy but no way i'm carrying a bunch of forms around and getting signatures.... :ear
    also make sure the disclaimer is easy to see e.g. put it in the first post of your thread. disclaimers can get thrown out in court if it can be argued that it wasn't easily accessible or seen. e.g. if you put it on the 45th page of a ride thread then it ain't easily spotted.

    DISCLAIMER FOR MATES RIDING ON PRIVATE PROPERTY
    Things get tricky when you have friends riding on your property. As far as we can understand the law, you owe them a duty of care if you invite them to ride on your property, so you do expose yourself to the risk of legal action if they are harmed. As mentioned above, a decent mate would never sue you, but there's the unknown factor where if they died in a freak accident that someone in the family may decide to sue you.

    A friend passed on this legal disclaimer for these situations. Of course there's a disclaimer on this disclaimer, don't assume it's perfect as is and get it checked out by a solicitor before using it!

    You don't want to get bogged down too much in all this legal crap and get too freaked at the idea of a mate riding on your property... I reckon just make sure you've removed obvious dangers on the property, and get them to sign a disclaimer. The basic legal issue is that you have taken reasonable precautions to make it safe, as much as any "reasonable" person would do. E.g. if you are flying past steel stakes pointing out of the ground and your mate gets impaled on one, you'll probably find a disclaimer gets pretty flimsy in court!

    Conclusion and further reading
    no one likes legal crap when it comes to dirt riding, but i hope these basic points above should cover our collective arses pretty well, with not a lot of effort involved, for bigger social rides like the snail trail rides. obviously a few mates out for a bush bash can ignore the lot... although even then its all worth keeping the legal stuff in mind. e.g. any decent mate would never sue you, but if he dies on a ride, or winds up in a coma for years, you just dont know how a grieving angry family might act etc.

    most of this stuff is just a badly edited summary of excellent links suggested by sleepy john:
    Adventure Activity Standards (AAS) Guidelines for Dependent Groups Legal aspects
    TrailBikeTour Aug10
    outdoorsqueensland.com.au.Trail Biking.pdf

    good general summary of duty of care and negligence

    Negligent liability in sport by Natasha Schot, Bond University

    feel free to use, copy or adapt the this disclaimer we've stitched together from a pile of other ones we found. we make no guarantees as to how effective it will be in court, but its a good start to limiting liability.

    i know we like to have a rant at the legal system and stupid negligence cases etc (and feel free to rant here as on other threads) but i'm very interested to hear any practical ideas, tips and answers on dealing with the realities of a risky sport in this current legal climate.
    #1
  2. Dean Ohlin

    Dean Ohlin inner city elite Supporter

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    Good onya mate.

    I've got no answers but it's good to see someone making the effort to explore an alternative to the commercial interests who blithely talk about things like hundreds of dollars worth of insurance, accreditation from some non representative "governing body" and swathes of legal documents as being the most normal thing in the world to do before going for a ride in the bush with a few other people.


    Thanks
    #2
  3. neilaction

    neilaction Slightly Less Adventurous

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    mmmmmmmm

    As it turns out I organise, or used to pre child, :lol3 quite a lot of "social" rides. Usually with mates or people I know but sometimes people i've never met join in. :D

    Now I aint the greatest rider thats for sure but I do like to go down tracks that test me. I've never been too bothered about the odd off:D and within reason, a good technical trail is my idea of fun. :D

    I do modify the route to match others riders ability and bike and let people I don't know well know what lies ahead. Thats if I know myself that is. :lol3

    Now thought of me actually being responsible for their safety as such is something i'm not too comfortable with. :deal

    The way I see it I have 2 choices.
    Continue doing what I have been or just ride with people I know who will know what they are in for.:evil

    mmmmmmm
    #3
  4. matt71

    matt71 glasshouse bandit

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    Or.... NO IM NOT going for a ride tomorrow , NO IM NOT going to be at XYZ car park , NO IM NOT getting there at 8 , NO IM NOT leaving at 8.30 , NO ITS NOT going to be a grade 3 ride . NO YOU CANT follow me :evil
    #4
  5. neilaction

    neilaction Slightly Less Adventurous

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    :lol3:lol3
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  6. Aussie Trev

    Aussie Trev aka DRTrev

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    My new signature on dbw.

    "Motorcycle riding is dangerous. You will fall off, your bike will be damaged and you will be hurt."
    #6
  7. enookway

    enookway Are we having fun yet?

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    Very good first post. Coincided with a mine site induction today where the definition of negligence came up again.
    Are there any examples of a test case or experience of a ride organiser who's been shafted?

    I think everyone agrees that no-one would sue a mate. But sit in a wheelchair for 6 months with no income, mates stopped visiting long ago, then a parasitic personal injury lawyer offers to bail you out finanacially and your decision might be different.

    I have organised, advertised, routed, lead, and charged money for rides for the last 8 years, but all under the cover of the DSMRA, who have a reputable (ie not offshore) third party insurance as well as Association Liability which covers volunteers.
    With a fair turnover of new blokes with unkown riding abilities, I would be hesitant to run a ride without it.
    I think the key to avoid being found negligent is dont be. Common sense says a ride with 15 unknowns will be a lot tamer than a small group of blokes you know.

    Now, how many blokes did we have at the start of the day?
    #7
  8. Wilmo

    Wilmo Orange Fever

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    I read the beginning of this thread, with you in mind Neil - ie your NJ trip off and Koos who also had an off. I was 'nominated' as the ride leader on that occasion only because I was the only one of the group that bothered to plot a course on the GPS. I was originally planning on riding out there alone. I therefore got put into a situation purely by circumstance that could have exposed myself to being liable for the rest of the rider's safety. Something I will be careful not to do in future. Good thing you and Koos accepted responsibility for your own actions!
    #8
  9. neilaction

    neilaction Slightly Less Adventurous

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    Of course Andrew. :deal I knew the risks. End of story. :1drink

    On the flip side, its a rare thing for me to follow someone I hardly know.
    I feel a lot more comfortable planning my own route/schedule and if others come along, so be it. Or at least being part of the planning process. :freaky
    #9
  10. Shmerel

    Shmerel

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    And Transport Accident Commission (and its State equivalents) will protect your sorry arse. :deal
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  11. damo2010

    damo2010 damo

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    Good point Neil, you learn from your experience, years ago I followed a group of mountain bike riders that I had not been out with and ended up on this long steep down hill that my brakes could not pull me up and only just made it to the bottom without lumpy bits in my pants. Later I did another ride with some other unknown riders in Brisbane and had an absolute ball, this time I got of and walked some of the drop off. Wisdom always comes with age. Risk analysis also gets better with age which might explain why I'm so slow.

    Following riders you don't know could lead to danger, but they could also take you to some cool riding places that you have not been to before. I think the important thing is to make sure the other rider has similar riding style and just how much experience they have.

    Thanks B1 for taking the time to post up the info, even if summaried from others work. It made good reading

    Damo
    #11
  12. markymark

    markymark pigkiller

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    a disclaimer disclaimer! - deary me, what is the world coming to? :rolleyes
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  13. DaveyDave

    DaveyDave Been here awhile

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    I'll vouch for two things in that statement mate:

    1. You did give plenty of info about what our rides had in store and when I did my 3rd ever off road ride with you I never felt like I was going into the unknown.

    2. You ain't the greatest rider out there :deal
    #13
  14. Wilmo

    Wilmo Orange Fever

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    And really that's how it should be.....if anyone is doing a big ride, at a minimum they should know where they are going before going out there, and be able to accept responsibility for themselves should they need to ride alone for what ever reason to get back to familiar territory (main road etc) - sometimes people get separated, someone crashes, gets carted off and leaves the other rider by themselves etc, there's a myriad of reasons....
    #14
  15. B1

    B1 Carbon-based bipedal

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    :lol3 i was wondering if someone would pick up on the irony of it all.... found another good link here which summarises duty of care and negligence well in a readable way, has plenty of test cases as examples too. it shows the many hoops that have to jumped through for a successful claim.
    #15
  16. Sleepy John

    Sleepy John Grumpy Adventurer

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    Not every state has an equivalent of TAC which I understand is a no-fault motor vehicle personal injury insurance scheme. In QLD there is compulsory third party personal injury insurance with limited cover for injury to drivers that is dependent on the insurer chosen at the time of rego renewal.

    Am I correct?
    #16
  17. dobbo

    dobbo Long timer

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    "At Fault Driver" clause.......
    This may only be relevant for NSW CTP only.

    I had an accident last year on 31st March 2010, which ended with being in hospital. ( I was the only one involved, and on a fire trail)
    The admitting nurse informed me to see my 3rd Party insurance (CTP) company for a claim.

    I got in touch with the CTP company, and was told the legislation was in place to commence payments for 'At fault driver's' commencing on the 1st April 2010, therefore I missed out due to being hospitalised one day early.

    I followed this up further; to be told you must check for a clause to cover 'At fault Driver' in your policy, as not all insurer's provide this.
    (Reason for the 'At Fault Driver' clause; is to cover a person travelling by themselves, who has an accident.. ie swerves a kangaroo and into a tree)
    This is what the MCIS (Medical Care & Injury Services Levies) are paid into a separate fund as part of your CTP payment, all funds must do this.
    I also found that most CTP 'At fault driver' clauses excluded 'motorcycles'; I made a few phone calls to head office, and was informed that this was just an 'oversight' in the policy (and the printing of the policy booklets) which would be rectified ASAP.

    Still not sure if this has been done... can anyone confirm this?

    Cheers
    Dobbo

    Note: this is only my understanding of the above, as I was informed...
    #17
  18. Hayesy

    Hayesy Been here awhile

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    So all single vehicle accidents now involve swerving to avoid a kangaroo... :evil
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  19. neilaction

    neilaction Slightly Less Adventurous

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    Now thats just being silly. :deal


    Could be a dog. :D
    #19
  20. DaveyDave

    DaveyDave Been here awhile

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    I had a crash at Loch Ness once. Not sure how believable it would have been if I said I was swerving to avoid Nessie.
    #20