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Discussion: Civil liability in orienteering events

in: Orienteering; General

Mar 16, 2019 4:57 AM # 
A question for bush lawyers in Australia.

When seeking permission to use private land for orienteering events in Tasmania, we are sometimes told by landowners "Sorry, someone might injure themselves and sue me", and then recount an incident "that they heard about" where, for example, a trail bike rider had successfully sued a landowner for negligence after falling from his trail bike on the landowner's property, event though the rider had not sought permission to ride on the property.

This seems to me to be an urban myth conjured up by insurance salesmen, but it may in fact be accurate. As I understand it, in most Australian states the plaintiff would have to sue under the provisions of the Civil Liabilities act, which places quite a reasonable burden on the plaintiff to prove negligence.

Have other state associations faced this predicament? If so, have you been able to convince the landowners that they are not in danger of being sued?
Mar 16, 2019 6:30 AM # 
Does the OA Public Liability insurance cover this type of risk?

in WA (that is Western Australia) we have had some St Georges Tce. lawyers advise corporate land owners, like forestry etc., that they should refuse permission for orienteering for generally risk adverse reasons. Generally we have a good network of farmers who welcome us and also provide references as to OWA being good citizens to other potential new farm maps
Mar 16, 2019 6:32 AM # 
Good question. I hope it gets picked up an transformed into a question about insurance coverage in USA and Canada.
Mar 16, 2019 12:18 PM # 
We've discovered in rogaining in South Australia that for farms where their insurer is Elders, they've been advised by SafeWorkSA not to let anyone else on their land, and they are not interested in knowing about ARA's public liability insurance.
Mar 16, 2019 10:13 PM # 
"Does the OA Public Liability insurance cover this type of risk?"

From the OA insurance certificate of currency:
"Any Council, Shire, Government Department or Property Owner from whom the abovenamed is given approved free access to and/or leases and/or hires and/or rents land and/or buildings for the above listed purposes of the sport of orienteering shall be indemnified for claims brought against the Council, Shire, Government Department or Property Owner, resulting from a negligent act by The Insured".

This appears to me to cover the orienteering organiser against claims made by the property owner, but does not cover the property owner against claims made those competing, who are on the property with the agreement of the property owner.

As an example, Orienteering Tasmania considered making a claim last year when an organiser or competitor left a gate between two paddocks open, and segregated ewes (those expecting one lamb in one paddock and those expecting twins in the other) became interrmingled, requiring another visit from the vet and her ultrasound scanner - cost $700, which was less than the $1000 excess, so no claim made. My understanding is that no claim has ever been made against the policy.

Jennycas - have you approached SafeWorksSA to find out the basis for their advice to Elders/property pwners?
Mar 17, 2019 3:08 AM # 
Sounds more like a question for paddock lawyers rather than bush lawyers.
Mar 17, 2019 3:50 AM # 
Hawkeye it may be worthwhile for you to read to the actual policy wording. OTAS probably has a copy of this, but if not you can get it from the OA EO.

My interpretation of the clause in the certificate (and after reading the policy) is that landowners would be covered against a claim brought by a competitor if the orienteering organisation was negligent, eg failed to map dangerous terrain, sent competitors through that terrain, or failed to inform them about it. A landowner would possibly only be negligent if they failed to inform the orienteering organisation of a significant danger on their land.
Mar 17, 2019 3:54 AM # 
WARA once had to recompense a landowner for a similar visit by the vet as in the aforementioned example, when a gate was left open (supposedly) by a competitor and the cattle had a party with their neighbours.

It's bizarre that despite never having made claims against the policies, insurers are generally reluctant to insure on the basis of risk.
Mar 17, 2019 4:47 AM # 
I don't think we'd want to tangle with SafeWorkSA, given that currently they have closed to the public, the Lady Alice Goldfields section of Para Wirra Recreation Park, for a year while they work out where all the unfenced mineshafts (yes, mapped for 2010 Nationals) are.
Mar 17, 2019 7:13 AM # 
Risk is in the eye of the beholder?
Mar 17, 2019 7:57 AM # 
We "lost" parts of the Avon Valley Park to Orienteering due a a risk assessment that there might be un-exploded ordnance from the 2nd World War training in the area. We had only been running over it for ~20 years before they did their assessment!
Mar 17, 2019 9:18 AM # 
Who is we that the orienteers took it away from us? I'll have a word with them; I know people on Council.
Mar 17, 2019 9:52 AM # 
The pine plantation near Bannister (Western Australia) was fine with Rally Australia and orienteering back in the '90s - but then I understand the ownership changed to an American company and access was immediately denied. Similar fear of claims against the landowner one would assume. Perhaps along the lines of 'Plaintiff fell off mountain bike on eroded section of (arguably) poorly maintained access track and now has permanent disability and cannot work.... etc etc'?
Mar 17, 2019 10:07 AM # 
@Tooms that was the area I was referring to in my post 16th March
Mar 17, 2019 11:46 AM # 
We used it in the mid 2000s also (I started MTBO in 2005 and I twice rode on the Flats Rd map). When I last spoke with them (around 2015) they claimed it was because we might accidentally set the plantation on fire and they weren't covered for that.
Mar 17, 2019 2:40 PM # 
the ownership changed to an American company and access was immediately denied

That is not surprising for me at all --- America is the most litigious society in the world, spending about 2.2 percent of GDP, roughly $310 billion a year, or about $1,000 for each person in the country on tort litigation, much higher than any other country in the world.

Beware dealing with them, my advice
Mar 19, 2019 2:51 AM # 

Thanks for your comment. I followed up my concerns with the insurance company:

Q: If a participant were to seek compensation (by legal action) from a landowner for an injury sustained in an orienteering competition, would the policy cover that action?
A: Yes, the policy would cover Orienteering but it would not cover the property owner.

I interpret this to mean that where an orienteering club/association is sued, along with a landowner, then the policy only covers the orienteering club/association.

Q: Am I correct in assuming that such a claim would be made under the Civil Liabilities Act?
A: Generally, this is correct however, there can be other legal means of pursuing a claim bearing in mind there are many various ways of injuries occurring.

Q: Has an orienteering club or association made a claim under the Sportscover policy, and if so, can you provide (in general terms) the circumstances of the claim?
A: Claims in orienteering are generally low level and we have not had a claim lodged via your organization.

And a general comment from the insurer:
"Claims against property owners are common so I can understand their concerns. You do need to be careful these days as litigation is prevalent."

So, we appear to be lucky that so many landowners are happy to have us using their properties (and that orienteers are mostly peaceful folk, compared to, for example, indoor soccer players)
Mar 20, 2019 4:29 AM # 
Q: If a participant were to seek compensation (by legal action) from a landowner for an injury sustained in an orienteering competition, would the policy cover that action?
A: Yes, the policy would cover Orienteering but it would not cover the property owner.

Makes me wonder why, say, the Education Department, would allow orienteers to run around their property for sprint orienteering... maybe the schools' officers too don't really know what they're getting into? Or, they are confident with their own insurance covering litigation from injured participants in an event they have permitted on their grounds?
Mar 20, 2019 5:46 AM # 
Maybe the people in the ED are more level headed than insurers and realise getting people outdoors into sport is actually a good thing.
Mar 20, 2019 6:26 PM # 
That's a big difference compared to the USA. Here, we are primarily concerned about landowners. If we didn't need landowner coverage, I'm not sure if we'd even bother with insurance.

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