There are a number of benefits of joining a club affiliated with Windsurfing Queensland and therefore the Australian Windsurfing Association ("AWA"); benefits that include 24/7 Public Liability insurance coverage.
But what type of risks does the AWA Public Liability insurance policy cover? When does the policy start and finish? What limits and excesses apply? What are your obligations as a windsurfing member?
Before we dive into the topic, please note that the AWA Policy covers different risks to the policy offered by clubs affiliated with Australian Sailing (i.e. the body that was previously Yachting Australia). If you are a member of RQYS or LCSC you should take the time to explore those policies as we won't address them here, suffice to say that they cover different risks.
Period of Cover
AWAs "Sports Combined Liability Insurance" policy is renewed each year to cover the period from 1 July to 30 June.
Who is covered ("Insured")?
Australian Windsurfing Association and all affiliated entities (e.g. Windsurfing Queensland) and clubs including all members, temporary members (for events only), accredited coaches, event promoters, accredited officials, directors, executives and volunteers.
In what circumstances does the cover arise?
Individual members are covered for any windsurfing activity 24 hours a day except where participating in any organised event NOT sanctioned by the AWA, WQ or your WQ-affiliated club. Cover will include any legal liability for injury to any person arising directly or indirectly out of the actual participation by that member in windsurfing (including practice, trials, training and competition) including "member-to-member" liability provided such injury is caused by another person who is also participating in windsurfing. The policy has a special extension to cover members whilst partaking in kitesurfing activities, subject to those activities being arranged by or under the auspices of the Australian Windsurfing Association.
Limit of Indemnity?
The policy is for Public Liability and covers up to $20,000,000 for any single occurrence of an insured event that a member becomes legally liable to pay compensation for personal injury and/or property damage to an aggrieved third party; and the legal defence costs.
Exclusions?
Any legal liability of a member arising directly or indirectly from a member using non-medically prescribed drugs is excluded; as is any legal liability of a member arising directly or indirectly from, or in connection with a criminal act ... so if a kitesurfer does not give way to you on a Port and Starboard crossing, you cannot assault them and expect indemnification for the injuries you inflict on the kitesurfer.
Excess?
There is a $5,000 excess for each and every property damage claim.
Territorial Limits?
The policy covers members in Australia and overseas (excluding USA & Canada) when windsurfing. As is normal for these policies, Australian jurisdiction applies meaning that should an incident occur and someone wants to take action against you, the case would need to be heard by an Australian court. Importantly, the policy should not be considered as a substitute for Travel Insurance - if you are travelling overseas to windsurf, carefully review the types of insurance coverage you require.
Coverage by other insurance policies?
If a member seeks indemnity under the Policy in respect of a liability that is or may be covered in whole or in part by any other insurance that the member holds (e.g. under a Home Insurance policy), then you must advise AWAs Insurer of the full details of such other insurance ... when making a claim.
Public liability cover under Home Insurance policies?
Home Insurance policies commonly include cover for legal liability, which some members may assume covers their windsurfing activities. Please review your policy if this is the case, as I'm aware of at least one major insurer that excludes legal liability cover for use of any watercraft longer than 3 metres in length. The fine print in many home insurance policies is considerably larger than the AWA policy given that they try to cover so many different types of risks and inevitably have long exclusion lists - whereas the AWA policy is tailored for risks faced by windsurfers.
Claims or potential claims?
A member must not make any admission of liability, promise or payment (or offer of payment), or incur any costs or expenses in connection with any claim, without the insurers prior written consent. A member must also take all reasonable steps and precautions in doing all things reasonably practicable to avoid or minimise any actual or potential loss, injury or damage arising from any actual or possible claim under the insurance policy.
What is the threshold for liability?
An aggrieved party needs to prove negligence or a wrongful act ('a breach of duty') on the part of the member. In Queensland, an aggrieved party must establish that the member's breach of duty caused the injury or damage for which they are claiming damages. In determining whether a member's breach of duty has caused damage, the courts have used several tests including: (a) would the injury have occurred but for the wrongful act; and (b) the common sense and experience test ... which requires a practical consideration of all of the facts and circumstances of the case, value judgments and policy considerations. Section 11 of the Civil Liability Act sets out the current test in Queensland to establish 'causation'. Once the aggrieved party has established 'causation', it then needs to be weighed whether the injury and any consequent damage suffered by the aggrieved party are 'too remote'. Damage will not be too remote provided there was a real risk that damage of the same kind might occur to the aggrieved party or a person in the same situation as them, and the risk would not have been brushed aside as farfetched by a reasonable person in the member's position. In some circumstances where the aggrieved party may have a particular vulnerability or pre-existing susceptibility, a member will still be liable for the damage caused even though the damage was far more severe than would otherwise be the case but for the susceptibility. For example, a kitesurfer with eyesight only in their left eye who suffers an injury to their right eye is entitled to compensation for the fact that the member's negligence has blinded them in two eyes, despite the fact that the damage would have been less severe had the injured kitesurfer had eyesight in both eyes to begin with. In most public liability claims, the case never gets to court - the insurers and the lawyers for the parties negotiate a settlement ... that is why you need insurance.
Other important notes for club officials?
It is good practice for each club to have a Risk Management Plan, and review and update such plan periodically. AWA and WQ can provide examples of plans to help guide officials on composition. It is also good practice for clubs to retain a Calendar of Scheduled events.
Policy Issuer?
AWAs policy is issued by ATC Insurance Solutions Pty Ltd ("ATC") (ACN 121 360 978, AFS Licence No. 305802) acting under a binder as an agent of certain underwriters at Lloyd's of London ("Lloyd's").
Where do I get a copy of the policy?
The AWA website at www.windsurfing.org/insurance.htm
Summary
We live in a world where people seek and expect justice when they believe they have been wronged or injured. Generally speaking, the vast majority of human beings do not seek to harm others, but unfortunately accidents do happen. The cost of defending a protracted injury claim made against you is likely to exceed the resources of even a moderately wealthy person .... that is where this insurance cover is most valuable. The AWA Policy has been designed for windsurfers and the risks we face. The cost of membership to an affiliated club in combination with all of the other benefits of joining your local windsurfing club makes joining such an easy decision!
IMPORTANT NOTICE
Please note that the information provided above is generalised in nature and has been prepared without taking into account any person's particular objectives, financial situation or insurance needs. Please read the the Liability Insurance Policy Wording and the Insurance Coverage Summary from the Policy Issuer, and seek independent financial advice as necessary.
Yours sincerely
Mark Harper
Windsurfing Queensland
Maybe a dumb question but does it cover injury to a non windsurfer or windsurfer who is injured by a windsurfer while windsurfing.
eg. running over the top of a swimmer when out sailing or returning to the beach or dropping gear onto someone while carrying it to or from the water.
not that I have done that, but at some places I sail it might be possible for such accident to happen.
A member would be covered if they hit a swimmer, assuming they didn't intentionally hit swimmer and they were not under the influence of non-medically prescribed drugs.
A member would also be covered if they accidentally dropped their board on a sunbather lying on the beach.
A member whom is windsurfing whom is injured by another windsurfer whom is not a member; would NOT be covered under the AWA policy. The member would need to pursue the non-member for damages .... in other words, it is a Third Party Public Liability Policy where a member is responsible for damaging or injuring a third party.
