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Organised ride liability


By fh6162 - Posted on 02 November 2014

NB: Originally posted elsewhere on the Global Riders Network and appears via syndication.

I recently read an article where 2 mates were riding together on road bikes when one of them hits an object on the road causing him to crash into his mate, the mate suffers a back injury etc. seeks legal advise and sues his mate for negligence, the case goes to court and the Judge rules in his favour awarding the injured mate $1.7m...which brings me to my hyperthetical question.....If I intend to ride say the Oaks trail and put a post up here inviting for others to join me and during the ride someone hits a waterbar goes OTB's breaks their neck am I liable ? ....whats to go ?...I'm curious as I've often thought about posting a ride but end up riding solo..this article has put me right off riding with someone...what are you thoughts...any reccomendation on who to get public liability through...e.g. Audax Aust, MTBA, Bicycling NSW

Cheers
Fred

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The obvious question is , has there been cases which are equivalent of what you are asking? Answer is no, I don't think there s even been an attempt to sue.

second thing is, cases like this aren't brought personally, but are only brought when there a capacity to pay - in the above case, an insurance company coving the individual for personal liability. Anyone who has had the misfortune of studying law will have learnt how outcomes are driven by the hurt and the capacity to pay. Insurance companies do pretty badly in court - judges like to protect the injured party with insurers money - it seems free.

You will most likely find that your home insurance and personal liability cover - mine is $20,000,000 and came with the home insurance without me asking nor looking for it.

Clubs have a different situation as a legal entity ( if incorporated) and tend to need insurance because of that.

This has come up a few times, but I think it boils down to the fact that in a lot of sports (and MTB is a sport, as is riding on the road) there in a inherent and obvious risk of participation. If you go riding with your mates then all of you are clearly aware of the inherent risks and clearly accept those risks.

Have you noticed how most new bikes have some sort of sticker on them telling you that MTB can be dangerous (or fatal!) and such.

I'm no expert, certainly aren't worried.

BTW, this is not the same as having a duty of care or purposefully causing harm. You put a rock or log across the track to 'trick' one of your mates for a 'joke' and they injure themselves as a result they could probably quite rightly screw you for damages.

I've read the judgement and the award was on the basis of rider 1 failing to keep a proper lookout. He struck a garden stake lying in the bike lane and crashed into rider 2 who was riding beside and slightly behind him, and spilled him out in front of a passing car, which then ran over him fracturing his pelvis.

What struck me was the very poor defence by rider 1's insurance company. If rider 2 didn't see the bit of wood that caused rider 1 to crash either, then there must either be some contributory negligence or the garden stake was difficult to see.

However, liability is not a black and white thing. It might be mostly the guy who crashed's fault but you can still get stung for a share of the blame, plus legal fees unless you are 100% white as the driven snow. That is almost impossible to achieve in court unless the complainants legal reps are incompetent.

The good new is, if you have home and contents cover, in most instances you have up to $20mil public liability cover built in.

So I am not concerned but I still read the riot act to new riders on social rides: mtb is a risk activity and you are 100% responsible for your own safety. If you're not willing to take that responsibility this ride is not for you.

This is not financial advice and individual policies will vary. Check your current PDS to confirm.

There is some insurance cover by virtue of being a member of a mountain bike club (and therefore an MTBA member). The summary of what's covered is available here: http://www.mtba.asn.au/resources/riders in the brochure MTBA 2014 Rider Insurance coverage flyer.

As @Rob points out there is an obvious risk with MTB riding.

‘Obvious risk’ is the exact language used in the Civil Liability Act which governs most acts of negligence in this State. The upshot is that it is probable that most MTB accidents would fall under a specified category of exclusion for recreational activities with an obvious risk to them.

To be absolutely certain however, the Act does provide a straightforward way of ensuring that there is no liability for recreational actives though the use of a risk warning.

So, @fh6162, if you were the organiser of a social ride for instance, as part of the “opt in” process you could include a statement along the following lines:

“By agreeing to participate in this ride, you acknowledge that mountain bike riding is an inherently and obviously dangerous recreational activity that has a significant risk of injury or death and that you have been warned of this risk in accordance with Section 5M of the Civil Liability Act 2002 (NSW) or the equivalent Section and/or Act in any other State or territory of Australia.”

Possibly worth considering incorporating something into the Ride/Meeting/Calender section of this website?

Otherwise, reading the riot act as @hawkeye suggests before the ride should be enough as well.

I haven't read the judgement, but the case has a car involved and so the Motor Accidents Act and CTP insurers would step in meaning the CLA Act would probably not apply and the risk warning provision would have no effect. 'Failing to keep a proper lookout' is classic catchall in motor accident speak.

In any event that matter smacks of the old litigation edict of “Sue the deepest pockets and if in doubt who has the deepest pockets, sue everyone”.

Important to note that this is a legal issue that is more complex than these posts alone and if anyone is really worried about it they should go and get legal advice, but as everyone points to here most Home and Contents policies should cover you.

Such 'opt-in' procedures are largely meaningless.
You can't sign your rights away in Australia. Even if a rider signs a document and has it witnessed, stating they understand the risks and dangers etc, you can still turn around and win in court. It just comes down to who has the better lawyer. Laws are not black and white. They are meant to be tested in court.

Hypothetically read about a mountain biker who would only ride alone and fell off, died of injuries as no one to render assistance, sued his mates for not coming riding with him, oh hang on he was hypothetically dead.. so all okay.

Seriously though, significant issue with organised rides with kids that happen around the state, MTBA said it was okay as a social ride but could not offer instruction unless accredited instructor, so saying, "Slow down on this descent," or "Use more front brake." constitutes instruction so would make organiser liable.

We always assume you are coming along under your own will and discretion. If you just happen to ride in the same direction at the same time as me cool but I am not a ride leader or guide.

Brought this up a few years ago - and as pointed out by others there is no certainty in any outcome.
The following are just two of the many examples of "opt in" (or out) indemnity forms being used. Just how effective they are is open to question.

http://www.over55cycling.org.au/documents/indemn... (this one is a WA club's indemnity form)

http://www.meetup.com/Marin-Social-Mountain-Bike... (this one more of an individual organised ride and is US in origin)

But you cannot sign away your rights under law - as pointed out earlier.

This is one reason I don't like organising rides - have done it in past but always had a bit of concern.

MTBA put put this statement for its members

In light of recent incidents, like the Canberra cyclist who was ordered to pay $1.7 million to a fellow rider over a collision, we wanted to remind you of the insurance benefits of being a MTBA member.

All MTBA members are covered by 24/7 insurance cover, which includes personal accident, income protection and public liability. Members are covered while riding, training or participating in any MTBA-sanctioned event on their mountain bike. Riders who purchase a MTBA Day Licence receive the same full benefits as MTBA members during the event, including personal accident, income protection and public liability. However, Participation Permits, which are used with some social activities and events, only provide public liability cover and no personal accident coverage.

Further information can be found on our website here: http://mtba.asn.au/membership/insurance-coverage

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