No doubt everyone breathed a huge sigh of relief then when, just 5 months later, in September, the RYA announced that Professional Indemnity Insurance would not be a requirement after all just so long as a centre's Public Liability insurance carried an extension that covered their training activities including indemnity for bodily injury to participants.
Cue a meticulous scanning of small print in policy wordings by interested parties to ensure they met the following requirements which are to be implemented by 1 February 2016:
"The purpose of public liability insurance is to indemnify the RTC and its instructors where a third party (which could be a student, customer or a member of the public) suffers personal injury or damage to their property as a result of the RTC's or instructor's negligent acts or omissions, and the RTC and/or its instructors is/are required to defend and/or pay damages to the injured party. The RTC must therefore ensure that any instructors employed or engaged directly by the RTC are covered by the RTC's public liability insurance policy. The RTC's public liability insurance must extend to indemnify the RTC and its instructors where negligent advice or instruction given by the RTC or its instructors causes personal injury or other damage or loss and the RTC and/or its instructors is/are required to defend the claim and/or pay damages" (RYA Training Notice TN 07-15 dated 7 September 2015).
Helpfully, the statement tells everybody precisely what the purpose of the PL cover is. How then, do we square this with the exclusions regarding training and advice? Well, insurers have addressed this in various ways. One, for example, maintains that as long as they state "Training" within in the business description on their schedule of cover then the explicit exclusion in their policy wording would not apply to the club or centre concerned. Another applies what I consider to be a "safer" option for the club by providing a specific endorsement that confirms tuition is covered.
So, everything's okay: the centre is indemnified in the event of injury to third parties caused by negligent acts or omissions on the part of their instructors in respect of the advice and instruction provided. Yes? Well, actually, not necessarily.
Remember all those insurers and insurance brokers earlier who were shouting about who had the best features and benefits? Well it's time to grit your teeth and listen to what some of them have got to say, particularly about "Bodily Injury". One insurer defines bodily injury as including "Death, Illness, Disease or Nervous Shock". Another defines it as including simply "Death, Injury or Disease" Still a third as "All physical injury to a Third Party including death, sickness, disease, mental injury, anguish or shock resulting from such physical injury".
If you haven't nodded off you might see the [not so] subtle differences between the 3 definitions. The first includes Nervous Shock but what exactly is that? Well, the legal definition of Nervous Shock is a mental condition that extends beyond grief or emotional distress to a recognised mental illness. This contrasts with the third example which includes mental injury, anguish or shock which are not conditions as advanced as Nervous Shock and so potentially provide a better scope of cover as if any of the conditions described did progress to a mental illness then the cover would still be effective. Conversely, the first does not state that Nervous Shock must result from a physical injury whereas the third example will only cover the mental injury, anguish or shock (and sickness or disease) if it results from physical injury. The second definition provides no scope of cover for any form of mental anguish or illness.
So, which option would you prefer or does it even matter to you, your club or your members? At the end of the day all of them appear to "tick the box" as far as what the RYA's intention is.
However, we must consider what the intention of the insurance is. Is it to indemnify the club, centre and instructors in the event of injury arising during the course of the training itself - ie during actual instruction on and off the water - or something more? What about the efficacy of the training? What if somebody suffers an injury or damage several months after training and alleges it was as a result of an error or omission during training? In this scenario the club or centre would almost certainly have no protection from their Public Liability Insurance.
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