I'm no lawyer but if any of you are, it would great to get WAKSA a written professional opinion on the current insurance policy which can be viewed from www.aksa.com.au
As I understand it the current policy covers 3rd party property and personal injury ie if you hurt someone else. I could not find any exclusions if the member is negligent.
I was watching TV last night where I guy in Townsville was playing golf and hit a guy in the head causing brain damage, it went to court and the golfer was found negligent because he failed to observe the guy who was hit (even though not in a direct line of sight). He now has to pay $26M, he is bankrupt, lost his livilihood and both lives are ruined. The golfer was a visitor to the course and was not covered by the club public liability policy and had to fight the legal battles himself.
In a case similar to this in kite surfing I understand that a WAKSA member will have the legal battles fought by our insurance company. Without a professional legal opinion my understanding is that our policy is similar to your car insurance ie if you are found to be negligent you are still covered but the insurance company will have to pay costs and damages and will either refuse to renew the policy the following year or put the premiums up significantly - clearly this is in nobodies best interests. To suggest that WAKSA members are kiting irresponsibly because they have insurance is just bloody ridiculous.
I would have thought that if you are not following AKSA/ WAKSA safety guidelines/ manufacturers instructions, etc then you could be found to be negligent in a court of law.
As a result of the Rottnest Kite Surf Classic I know that government bodies have looked closely at the current policy and were happy with the level of protection it provided. These are the people that have the power to ban kite surfing - public liability is a MAJOR concern to them. Compulsory insurance may be coming whether you like it or not - the coronial inquest of Mick Eastland's death has still not handed down it's findings.
I personally think it is fantastic to see the voluntary pro-active initiative of the kiters at Safety Bay to make WAKSA membership compulsory if you wish to kite on their beaches so that they can protect their sites by demonstrating to the City of Rockingham that ALL kiters have public liability cover. I understand that Gero are considering similar action.
WAKSA have been requested to develop some means of easily identifying a member while they are kite surfing. Ideas, as always are welcomed.
__________________
Cheers,
Ian Young
www.flysurf.com.au
0414 716 812
Hi Ian,
I've got some contacts in the UK insurance industry who specialise in PL insurance (they underwrite it!) so I'll get them to have a look through the policy and ask them some of the questions people have been asking you. Though I have a feeling that they may need to see the full policy wording and not just the summary that is on this schedule. Obviously there may be some differences between the UK and Australia, but it will certainly give us another opinion.
But, if the government authorities have checked the insurance over then I would assume that it must be fairly substantial in the cover that it provides.
With regards to spotting WAKSA members could you not use the same idea you had for the Rottnest Classic and have a flag attached to one of the lines? Not sure if this will affect the flying characteristics of the kite, but it probably seems the best place to put something. Either that or the kiter themselves would have to wear some identifying mark (such as a bib), but I don't think that would go down too well with people.
I am an insurance lawyer.
I have not had a look at the policy, but a few comments.
Firstly, the whole idea of public liability cover is to cover you where you are held to be legally liable. That is, where it is established you have been negligent and that negligent act has caused damages.
Therefore, unlike posts by Jan (I think) on another thread, you would have cover where you have been negligent.
Usually a policy will have some sort of condition that you are to act reasonably. But, the courts have held that this sort of provision should be read down as otherwise the policy would have no commercial effect. The reason why you have been held liable is because you have acted negligently!
However, you probably would have breached the policy condition if you are guilty of GROSS negligence or carelessness. This is where you have deliberately acted in a way knowing it may cause damage. It is not where you have made an error in judgment. (Eg. travelling 20km over the speed limit in your car may not be gross negligence, but travelling 100km over may be.)
So, in my view, in Ian's example with the negligent golfer, if he had public liability insurance, he would be covered. Same with Jan's (I think) example when he launched his kite.
The other issue is home and contents policies have a public liability component. This may provide cover anyway, but will depend on the definition of "water craft". Of course, your household policy won't cover you for commercial activities.
Disclaimer - this is not legal advice but just my brief comments on ths issue as part of an internet forum. My comments should not be relied on and you should seek proper legal advice.
(Sorry, had to do that!)
jjd
Well done mate! Thanks very much for that input. I'm a financial adviser and know all about the disclaimer etc, but it's good to hear an 'unofficial' view from someone in the know.
we need as much of this as possible so cheers for the effort ;)
Dean Gilkison
jjd: thx heaps! this is exactly the sort of loose information i was trying to discuss
