[Cough, cough...]

So far as  know, I am the only legal beagle on this board... but you said "There is no suggestion of fowl play..." and I don't get involved in anything other than human events -- though I am certain that, in this case, the chickens will come home to roost.


  ----- Original Message ----- 
  From: russell_c 
  To: [log in to unmask] 
  Sent: Sunday, January 09, 2011 3:46 AM
  Subject: Any assistance on this?

  One for the legal beagles.

  There is no legal matter in this -- it is just a case study (based on actual events) in which I would like to clarify one fact: shared responsibility and risk. 

  I only need an answer to feel more confident in my discussions with others on this case study. 

  I don't need legal opinion -- but I just would like to know whether in general principle my point about some degree of shared responsibility is valid -- or at least a grey area needing some arbitration. 

  The contention is between two world views: one that holds a 100%:0% 'blame' paradigm; and one that holds a shared risk paradigm somewhere (but not explicit) in the range of 99%-1%. 

  The debate is not legal (although it is ultimately a legal issue if pursued - which is not in this case): it is philosophic. 

  It is just a case study but I'd like to know more clearly whether I'm correct or not. I hold the shared responsibility view (around the 80:20 range). The principle is the focus -- not the actual values. 


  A -- a small company selling kitesurfing equipment and providing training services via 'sub contractors' who ply their trade on a public beach.

  B -- Trainer walking on public beach with C in a training session.

  C -- personal being trained by B through a contract with A.

  D -- Independent person on the beach in an activity with some physical risk to D (only). No risk to others by virtue of ensuring no other public are close by in direction of wind and potential risk zone if event fails.

  D has no relationship with B or C. (and in fact never met)

  D has some historical commercial relationship with A.

  B is wearing a top wetsuit vest that subtly identified her as a trainer for A. 

  B and D have never met before although D has observed her in the distance training others. 

  The location is in D's local beach area less than 0.7km from house. A, B & C most likely travel to the location from elsewhere. 

  There is no suggestion of fowl play or poor intent by any party -- merely poor communications, timing and lack of understanding of shared risk at that time (by B) in a public place with respect to D (and others in same situation).

  At a critical moment in D performing an act (e.g. launching a large kite), B (with C in tow) calls out to D from behind (and to the side a touch) that the "bar is around the wrong way" or words to that effect. D did not realise B was there or only slightly noticed from corner of the eye just moments earlier. B & C were walking along a beach where small sand dunes blocked D's view of their approach. 

  This causes D to hesitate at a critical moment of launch, look down and check the bar (held in the hands to control the kite via 4x25 m strings.) D finds the bar is not around the wrong way. D wonders what B is talking about and replies that he basically 'knows what he is doing' (or at least that the bar is correctly held). The kite lifts abruptly and D is slightly off balance due to B's interruption. D is pulled to the ground , hurts ribs and breaks kite string. D contends that this may or may not have happened without B's uninvited interruption to his private activities on a very deserted public beach (i.e. no risk to others). No one will ever really know. 

  No other party is hurt or was put in danger. D was learning the ways of the kite. Perhaps the kite was not positioned well with respect to wind. However previous self launches by D had been performed and worked ok. Winds were a touch stronger than perhaps wise to launch in by D -- but not excessive.  Position of kite with respect to wind could have been better. There was risk but calculated (maybe poorly in hindsight). 

  B & C walk off.

  D recovers from the spill and packs up equipment and returns home via the premises of A (close by) where the equipment was purchased and where original training was provided (but not by B).

  D claims that B (as A's employed contractor/employee) is partly responsible for the event due to interrupting D without invitation and by sending incorrect 'expert' information at that time (the bar was not around the wrong way). 

  D's original 60:40 shared risk view includes a belief that risk is also to A by virtue of employing B (i.e. commercial law etc).

  D and A agree that 70%:30% (D:B) is reasonable. 

  A agrees to sell D new strings for large discount just above cost. A & D agree this is fair. (basically reflecting the 70:30 split)

  D suggests to A that he advise young B that next time she should be more careful about approaching members of the public while on duty. D suggests some skills training for B so that opening communication can be more polite and in the form of a question -- e.g. "Excuse me, can I assist..." (or words to that effect). 

  A week later in the same place, under similar conditions (but lighter winds and with better kite position etc due to advice from A to D on how to do it better), B walks past and offers to help launch the kite for D. There are no hard feelings and no other communications (D and B are approximately 30 metres apart due to length of kite strings). Standard 'ok' & 'thanks' hand signals are shared by D & B. 

  There is no issue. Both A, B & D seem to have learned something. 

  Some weeks later D relates this scenario in a public forum which is discussing risk on public beaches in respect to 'Show Pony' behaviour that places the public at risk. Public outrage with the 'sport' is rising in the wider community due to bad high risk behaviour by certain experienced people. 

  D receives a public lashing by many people in the small Internet community (but not all) for the suggestion that risk was shared in this complex situation of concern outlined above. Heated debate and bullying attack on D ensue over an extend period by a strident section of the Internet fraternity who believe that 'Blame' is 100% with D as a 'fact'. No one claims to be a legal expert -- it all looks and sounds like opinion. 

  Question: Can D claim that risk was shared in that situation of concern -- or at least that it is a grey area that would need arbitration etc to resolve?

  D's issue is not with B or A. 

  Rather it is with the mindset of the rabid Internet forum attackers who seem unable to consider the situation and who continue to attack D at a personal level from the 100% blame position. It appears to be a very strong blame culture. This community may also have higher insurance premiums to pay if they find out they do share risk in some public-private interaction (especially when commercial trade is going on and a 3rd party is affected). Many of these 'voices' are probably trainers as well. 

  The purpose of D raising this scenario was to develop open discussion. A lot of noise was developed (charge & rebuttal) but not much information or answers. The original Show Pony situation was completely left discussed and unresolved. The Show Pony problem seems to have been raised numerous times before and remained a hot contentious and unresolved item. 

  The kitesurfing community claim to be extremely concerned with self governance and not being pinned down with outside control and regulations "like elsewhere in the world". Certain 'voices' in the Internet fraternity claim this is because of good work by the local association of members which also provides public insurance to members and requires members to agree to indemnity conditions that seem to protect all office holders and all members form challenge. 

  After further analysis of the situation (of the internet community reaction) D concludes this is largely because the local context is in a time warp and that soon there will be public outrage and clamp down as it has occurred in other parts of the world.. 

  Any comments or hints on the original 100% vs shared risk responsibility issue most appreciated. 

  Nothing will be quoted or ascribed. Email to me 1:1 if more appropriate.

  Thanks anticipation.


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