Whats the current thinking on non-club trip liability issues ?

Submitted: Monday, Nov 28, 2011 at 12:01
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It was a seriously mixed up weekend out in the Victorian bush
south of Jamieson this weekend.

We did a couple of drives, Saturday in heavy rain then
Sunday I led a group of 10 cars for a drive in brillant sunshine.

(Some were club members, others weren't - so for the point of this post
I assuming no club members, sort of like the recent Pyrennies
Exploroz drive we attended).

A number of little minor things came up which had us asking
about potential liability of giving advice.

I never worry about this stuff much and just let everyone know
I'm off and they can tag along if they wish and then
sort out who is Tail end charlie and the vehicle count etc over the radio
as we go.
Following cars sink or swim depending on ability, but at least we are around
for rescues, and this process guarantees plenty of later fireside chat.

The radio communications wasn't helped because one solo driver was deaf.
(Perhaps we should have insisted he had a hearing passenger?)
This made it interesting because when we came to a river crossing
it was a little deep with a dangerous shelf off to one side.
A Terracan driver wisely decided to turn around, but a jeep wrangler
worried me cause I think there intake is a little low (I think).

On the trip during the rain an 80 series wouldn't drive thru until
I stripped down and hobbled thru the river mapping the underlying rock shelf,
and didn't quite aviod a serious wet cold shock where it wasn't needed.

The river crossing seemed ok to me, but was a little touchy for some others
but all made it ok.

We also had comms issues as UHF doesn't go far in the Vic hills, so I put
the only other VKS equipped car at the rear, however I couldn't effectively
communicate rocks on track etc and other stuff throughout the spaced out group.
Robin Miller

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Reply By: Member - MUZBRY(Vic) - Monday, Nov 28, 2011 at 14:23

Monday, Nov 28, 2011 at 14:23
Gday Robin
Sounds like a good weekend to me.

Muzbry
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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 20:51

Monday, Nov 28, 2011 at 20:51
You may have the right idea Muz - ignore the whole issue - it usually actually does go away.
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Follow Up By: Member - MUZBRY(Vic) - Monday, Nov 28, 2011 at 22:05

Monday, Nov 28, 2011 at 22:05
Good evening
I think it is up to the individual to look after himself. I don't mind chipping in and giving a hand, but from there on i really cant see that you would be to blame if the low air intake sucks water or not. The owner must be responsible for his own actions and his own vehicle.

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Reply By: Member - pilbara60 (WA) - Monday, Nov 28, 2011 at 15:42

Monday, Nov 28, 2011 at 15:42
Hi Robin , as v/p of a 4wd club myself these sorts of issues have come up about liabillity to the club. It has even been sugested that non members not attend such runs or even signing wavers but thats not what the club is about {safe touring ,responsible 4wding etc} not that we get a lot of creek crossings here in the plibara. We nominate tail end charlie before heading out as well as trip leader briefing also everybody fills in trip register as to occupants , recovery equipment and first aid . Even rover gets recorded . cheers wayne
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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 15:58

Monday, Nov 28, 2011 at 15:58
Ok Wayne

With affiliated clubs its a non issue over here as welll.

I was wondering if more informal groups or for example a trip organized under say Exploroz Trips had any particular issues - I noted no disclaimer or liability type statement when registering for a recent trip here which I thought there may have been.

Perhaps one actually creates a problem by having a club - which in turn is removed by paying the insurance.
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Reply By: Member - DAZA (QLD) - Monday, Nov 28, 2011 at 15:57

Monday, Nov 28, 2011 at 15:57
G/Day Robin

I'm guessing you mean non-club members / visitors doing tag alongs with your club?.

I'd be getting some thing written up by one of your legal eagles re: covering your selves for any claims against you and your club.

Non-members / visitors sign before partaking in any drives ect.

Indemnity clauses are used fairly widely.

Only problem i'm aware of is if an accident happens on private property.

The owner of the property has to have insurance to cover the above.

Cheers
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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 16:08

Monday, Nov 28, 2011 at 16:08
Hi Daza

No , I haven't made the question clear enough.

I meant, if say in your post you had said,

"Robin there is a ripper track up here we can drive this weekend and its easy".

Then I come along for the drive and slip over the edge and say you told me it was easy so your iliable.

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Follow Up By: Rob! - Monday, Nov 28, 2011 at 16:26

Monday, Nov 28, 2011 at 16:26
Robin,

If it was easy, why would somebody slip over the edge.
The secret is to tell the truth.

So don't say it was "easy". Instead say "I've been on it last year and my experience was ..." or " I have ever been on it and have nbo idea what to expect." or "this book says it is ..."

Just like in business, cover yourself by referencing how you know that the the track is "easy" or "hard". Give the non-members enough info to work out for themselves the risks.
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Follow Up By: Member - Des Lexic - Tuesday, Nov 29, 2011 at 11:47

Tuesday, Nov 29, 2011 at 11:47
Rob,
The problem often occurs when one person for example, considers a steep downhill track to be easy, yet the following vehicle may be well outside their comfort zone and may make an incorrect decision about where to place your wheels and then come to grief.
What Robin is asking opinions about is if I was going down the hill and said follow my tracks and they then had an accident because their vehicle set up was different to mine and something happened, could that person take me to court for providing advice which may have caused their accident.
To answer Robin's question, I think it would be a legal minefield and disclaimers and the sutch may not be worth a cracker.
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Follow Up By: Rob! - Tuesday, Nov 29, 2011 at 11:55

Tuesday, Nov 29, 2011 at 11:55
Yes Des,

I agree, Perhaps I didn't explain it correctly.
One should never use arbitary terms like "easy" use factual descriptions rather than opinions. So instdead of saying "it's easy" the trip leader would describe their experience of the track. eg, "previously had some wheels slipping at the bottom half etc.

Telling someone to "follow me" can be a minefield and you can ALWAYS be sued. Whether the other party will win is another matter but you will still have to put in your time and money.

In view of all this one should reconsider if taking non-members is worth the effort.
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Reply By: Member -Dodger - Monday, Nov 28, 2011 at 16:12

Monday, Nov 28, 2011 at 16:12
Our 4wd Club went through the same issues and as it was Incorporated and affiliate with the state and federal association was covered for public liability.
To protect the trip leaders they were given the discretion to include or disclude non and member vehicles. All drivers are to sign an attendance form entering vehicle rego details and passengers names as well as their own.
Drivers are to inform trip leader if any part of the trip is beyond their capabilities or their vehicles capabilities and a decision can be made at that time.
In a convoy situation we nominate tail end Charlie and a middle vehicle when there are many , the middle vehicle relays and instruction to and from the leader.
We too have had hearing impaired people and make sure that a hearing person is onboard that vehicle to relay messages by any means available and this can be done by a non driver.




I used to have a handle on life, but it broke.

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Follow Up By: Member -Dodger - Monday, Nov 28, 2011 at 16:16

Monday, Nov 28, 2011 at 16:16
Sorry missed the NON CLUB bit.

I used to have a handle on life, but it broke.

Cheers Dodg.

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Follow Up By: Member - nick b - Monday, Nov 28, 2011 at 17:37

Monday, Nov 28, 2011 at 17:37
The problems would be if someone was injured or vehicle damaged & an insurance co was involved , they will be looking for someone to blame I.E extracting money from . indemnity forms wont help you if you gave bad / wrong advice... I.E that's why we have insurance to protect ourself......
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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 20:56

Monday, Nov 28, 2011 at 20:56
Hi Dodger / Nick

On the club side some years ago the idea was that clubs hold some general use equiment but a strong reccomendation against having a chainsaw as club held was very quickly canned as it put far to much liability on them to ensure only people with proven training etc could use , and that even meant someone in the group would still have to take responsibility for the equipment being in good working condition etc.
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Reply By: Member - Richard W (NSW) - Monday, Nov 28, 2011 at 17:41

Monday, Nov 28, 2011 at 17:41
Robin,

In our club it is up to the trip leader to accept or reject non club members on a club trip. These days they are generally full with club members though.
If I have them on one of my trips and I'll only accept friends of a club member and I have them sign a waiver. Well aware that this is a touchy area regarding how effective a waiver is. I rarely offer advice but if so err on the conservative side. If the advice is not followed they are on their own.
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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 20:44

Monday, Nov 28, 2011 at 20:44
Hi Richard

That would make it hard to accept people from say this site that you may never have meet before , certainly here the idea of a waiver isn't put forward.
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Follow Up By: Member - Richard W (NSW) - Tuesday, Nov 29, 2011 at 06:59

Tuesday, Nov 29, 2011 at 06:59
Should have read the post more closely. :oops
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Reply By: Boobook2 - Monday, Nov 28, 2011 at 18:08

Monday, Nov 28, 2011 at 18:08
It's a good question Robin.

In fact arguably the same situation exists for a group of frends going on a trip organised by one person, or even if one person is leading with others following on a particular section even though all agreed together to go away.

Common sense tells you that everyone is on their own but lawyers could make that assumption valid.

It is even possible that if you make the trip known through this web site, then it is a club event given that Exploroz has "members" ( and you are a member!)

I would certainly make it plain that it is a personal trip and that you assume no responsiblity.

Good question for the lawyer on John Faine - local radio.

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Follow Up By: Robin Miller - Monday, Nov 28, 2011 at 20:50

Monday, Nov 28, 2011 at 20:50
Here is something I remember from a now defunct site from about 10 years ago BooBook2 - I never agreed with it then either but it does make you think

--------------------------------------------------------------------------------------------------------
Subject: Important Insurance Issue


To me this is going to KILL anyone every doing anything ever again!

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

People I have some VERY bad news.
I have got legal advise on this whole liability issue.
I will put some scenarios in point form to make it
easy.

-You "Rankins is a great fun track you should try it one day"

YOU ARE Liable and can be sued as you are suggesting a
track to try. The only way out would be to say "I
went up Rankins track on the weekend and loved it but
would not recomend anyone trying it except at your own
risk" The last bit is important as without it you are
still liable.


-You "Im going to Gembrook on the weekend anyone wanna
come?"
You are liable, no way out of this.

-You "Im going to Gembrook" Other "Ill meet you there"
You are still liable even though you didnt directly
invite them.

-You out 4wding & someone calles out in the middle of
a track, "Hey can I follow?" if you say yep you are
liable. Id suggest say NO or Ignore them therefor you
can claim you didnt know they were there or following
you.

Indemnity forms are only good for wiping your ass,
they wont hold up.

----------------------------------------------------------------------------------------
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Follow Up By: Bonz (Vic) - Tuesday, Nov 29, 2011 at 02:22

Tuesday, Nov 29, 2011 at 02:22
It would have to be a big form to wipe a whole donkey Robin but generally I agree with the form comment. Re the rest it's probably true too IF someone wishes to take a legal route. Fortunately one thing we all share, mostly, is a self liability approach. I.e was I responsible for two slashed tyres on another car cause I was leading the jaunt? Hope not but it was never an issue. Once legal argument occurs then there is counter arguement re mitigating actions that one is expected to take. It is never total liability on ones part IF the other party wishes to fight the action. Everything becomes a compromise then.
.
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Follow Up By: Boobook2 - Tuesday, Nov 29, 2011 at 06:29

Tuesday, Nov 29, 2011 at 06:29
Ha ha, I hope we don't follow the Americans. I experienced an example that showed how bad it can get.

Several years ago I went to Hawaii. The resort was on the beach and had a little hut with beach towels.

To get a towel you had to sign a 1 page waiver!!!!! For beach towels of all things.
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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 07:56

Tuesday, Nov 29, 2011 at 07:56
Hi Guys

Their was I thought, an over reaction to potential liability issues at that time (around Y2K) and in response to that note I posted above, my reply was to lay a bet that it would not happen - I think its now time to collect.

The basis for my position was that unless your a real first timer and just aquired your first car then you could reasonable expect to be presented with the conditions encountered.

Sort of surprized me though that I could find a disclaimer on Exploroz trips though as there seem to be note on most other things.





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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 07:57

Tuesday, Nov 29, 2011 at 07:57
Darn - I meant, could not find an exploroz trip disclaimer !
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Reply By: Mikelb - Monday, Nov 28, 2011 at 21:33

Monday, Nov 28, 2011 at 21:33
Hi Robin
When I was a member of a 4wd club , if we were taking, we were requested to attend a trip leaders training course. Most of the time was taken up with legal liability as well as other necessary info. We were clearly advised not to tell someone who was unsure that it was OK to attempt a hill or a river crossing etc in case there was an outcome!. On one trip we had two vehicles driven by visitors who were entitled to two visitor trips before becoming members of the club. On contacting the club insurance brokers re whether there was coverage in the event of an incident the broker said he thought so but in the event of problems the courts would sort it out!!. I did not take any non members on club trips after that advice. With our society who knows what could happen in the courts.
Regards
Mike
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Reply By: NTVRX - Monday, Nov 28, 2011 at 21:43

Monday, Nov 28, 2011 at 21:43
On the trip during the rain an 80 series wouldn't drive thru until
I stripped down and hobbled thru the river mapping the underlying rock shelf,
and didn't quite aviod a serious wet cold shock where it wasn't needed.

Gosh, I have never had a trip leader strip off & hobble through an icy cold river scourcing the correct path for me. Can I join your club? Only Joking Robin, but very brave of you to forge the icy waters for one & all. Seriously why not have temporary membership for visitors with your club & that would then enable the "visitor" to be actual members of your club albeit for a short time only but covered by the club's insurance.. Do you let everyone "tag along"? Is there any scrutiny as per who is capable or proficient? Seems to me the way your post reads it's "one in all in" whether you are proficient at four wheel driving or not. That in itself would open a can of worms for a civil litiigation. Sometimes our best intentions result in things going pear shape. I wonder about the fellow who was hearing impaired who was looking after his welfare? He could easily have come to grief & who would be blamed? I agree with your opening comment.....it was a seriously mixed up weekend!!!
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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 08:29

Tuesday, Nov 29, 2011 at 08:29
Hi Ntvrx

And to think the 80 series had bigger tyres than me !

What got me to thinking was that we sort of headed off and someone I don't think I had even really meet was invited along by someone else more or less as we took off. So mentally I assumed zero responsibiliity , pretty well always these things work out and all have fun and I guess thats the gamble.
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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 20:57

Tuesday, Nov 29, 2011 at 20:57
Someone read this thread and sent me a pic of what you might look forward to Ntvrx (names are much better)

Image Could Not Be Found
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Reply By: awill4x4 - Monday, Nov 28, 2011 at 21:49

Monday, Nov 28, 2011 at 21:49
For visitors to attend any 4wd club trip with a club that is affiliated with 4wdVictoria they MUST apply for a "temporary club membership" with the respective club to be covered by that clubs public liabilty insurance.
Our club (Pajero club of Victoria) went through all this a couple of years ago and for visitors to attend a club trip they must apply for the temporary membership with our club and then our club must inform 4wdVic and all this must happen no later than 2 weeks prior to the club trip.
It's very messy but it's the only way to protect our club and club members leading the trip from the possibility of being sued in the event of something happening.
If other clubs don't follow the above procedure then they do not have blanket coverage from the public liability insurance issued by 4wdVic.
Regards Andrew.
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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 08:03

Tuesday, Nov 29, 2011 at 08:03
Its proved to messy for one I was in Andrew - just didn't happen - and as it costs 2/3 of the membership fee to be an affiliated member you would have to wonder why be affiliated if it doesn't work when you need it.
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Reply By: Member - Phil G (SA) - Tuesday, Nov 29, 2011 at 01:08

Tuesday, Nov 29, 2011 at 01:08
Robin,
Sounds like your trip was not an official club trip.
Simple answer is that if you run a private trip, you are on your own when it comes to liability

When I run a private trip I make it clear from the start that people are responsible for their own actions and if they are not comfortable doing something, then say so and they are welcome to give it a miss. I wouldn't be doing risky water crossings with novices - stresses me too much!

Cheers
Phil
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Follow Up By: Member - Phil G (SA) - Tuesday, Nov 29, 2011 at 01:12

Tuesday, Nov 29, 2011 at 01:12
And forgot to say that I don't believe club members have any sort of coverage on private trips either.
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Follow Up By: Robin Miller - Tuesday, Nov 29, 2011 at 08:41

Tuesday, Nov 29, 2011 at 08:41
Tend to agree Phil - but I was also thinking about a few weeks ago when
nearing the end of our full Madigan crossing when we were so throughly
and unexpectedly cut off that we had to abandon our plans and make some
hard unpopular choices.

They turned out right but it could easily have gone belly up.
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Reply By: vk1dx - Tuesday, Nov 29, 2011 at 10:56

Tuesday, Nov 29, 2011 at 10:56
A simple solution.

We do not allow non member drivers on our club trips. If anyone wants to organise a trip with non member drivers on it then it can not be a club endorsed trip.

I am not sure about non member passengers though. As long as they do not drive then it appears to be okay for club trips. Non member drivers are excluded simply because every driver on a club trip must have passed the appropriate basic, up to extreme, training course for the trip.

Might I also say that trip leaders must have passed the trip leaders course.

Phil
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Reply By: Sigmund - Thursday, Dec 01, 2011 at 11:52

Thursday, Dec 01, 2011 at 11:52
I looked into this for our motorcycle club and the advice was:

1. Waivers are worthless. People can't under law sign away their legal rights.

2. If you set yourself up as a drive leader, formally or informally, you have a duty of care towards those who join in. You can be sued for not exercising that properly. That duty is proportional to the responsibility you've accepted as leader. So can be quite high if you're formally trained or are taking money in a commercial operation.

3. Followers don't have carte blanche to sue; there may be contributory negligence on their part. They can't behave recklessly, suffer loss and then hope to get a big payout. Of course, you don't want the issue to get to the stage of arguments about this in court.

So pre-drive/ride briefings about the conditions and risks are essential along with recommendations that those without the skills or equipment should not participate. You should even do basic vehicle checks (tyres, ground clearance, snorkel, winch etc) and tell the driver of a deficient vehicle that it's not recommended that they join the tour.

It's a sod.
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Follow Up By: Robin Miller - Thursday, Dec 01, 2011 at 13:17

Thursday, Dec 01, 2011 at 13:17
I agree , this post has also been helpful to me elsewhere like at work Sigmund.

Only this morning I was at a sort of giant TV screen that needs repair - the installers had had to install it by feeding the 240v power thru a hole in the wall , and then add a plug.

The written removal instructions from one of them said , cut the plug off before removing the display.

Being a bit over cautious I emailed back the obvious (to me).
This was to remove the plug from the wall socket before cutting it off.

Little while later came back new written instructions from the installers stating in big bold writing to yes "Remove from wall socket before cutting power lead"

It would be so easy to stuff up in todays world !

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