You are currently viewing Social Open Water Swim Group Liability

Social Open Water Swim Group Liability

Local open-water swimming groups are dynamic entities. They often begin with just a handful of regulars, gradually expanding. As these swimmers become fitter and more knowledgeable, others—friends or locals—join the group to learn and share the experience. However, open-water swimming has risks, especially when cold water is involved. The question arises: At what point does a group of regular swimmers become legally liable for each other’s safety?

We’ve encountered this question frequently, prompting discussions with lawyers. In this article, I’ll convey my understanding. Note that this does not constitute legal advice. For personalised legal guidance, consult a qualified lawyer. Also, laws may vary based on your state jurisdiction.

Safety first always

Before delving into legal matters, let’s emphasise the importance of safety. Social ethics and common sense dictate that swimmers always put safety first, for themselves and other swimmers. Swimmers should know how to assess risks carefully, adjust their approach, and remember that conditions can change rapidly. Regular open-water swimmers intuitively understand this and always support one another.

Now, let’s explore the legal aspects:

Organic group formation

Open water swimming groups often start informally. One person swims, then two swim together, and eventually, a small community forms. Regular swimmers, usually friends, invite others to join. It’s beneficial to swim in a group, as camaraderie enhances the experience.

As new swimmers join, the regulars may naturally assume leadership roles.  Some groups even create digital chat platforms—Facebook, Instagram, etc.—to coordinate. They develop a profile and establish a consistent routine.

Perceptions and Liability

Outsiders observing the group might assume it’s an official swimming club associated with a specific location, regular meeting times, and competent organisers. For instance, imagine a group meeting three times a week at 8 am in front of the local Life Savings Club. Pete and Dianne, seasoned swimmers, lead the way, announcing the day’s swim route or distance.

Now, consider Dale, a new swimmer. He joins the group, following Pete and Dianne. But during a swim, Dale encounters trouble—whether a health emergency or an accident. God forbid, he carks it, or he suffers severe injuries.  All swimmers are distraught.

Dale’s partner & family are especially distraught. They want retribution or compensation from somewhere, anywhere. The legal spotlight intensifies, radar arrays scanning for accountability. Who’s liable?

Regular swim friends are always cheerful & supportive.

For clubs or associations

If your swimming group is affiliated with an organisation or club, the club should have public liability, associated liability or personal injury insurance and it will regularly conduct risk management. Always follow the club policy or guidelines around safety.

  • Association Liability Insurance coverage protects members of management committees or incorporated organizations against negligent acts, errors, or omissions. (Further details link)
  • Public Liability Insurance is crucial. It covers the club against being sued for negligence related to injuries or damage that occur on the premises or during club activities. (Further details link)
  • Risk Management: Clubs should identify, analyze, and control risks with regular assessments. Communication and documentation are essential. (Further details link)
  • When entering into an insurance contract, clubs must disclose relevant information to insurers.

For friends and informal groups

Now, let’s delve into the realm of Tort Law. Australia recognizes various torts, including trespass, negligence, defamation, and invasion of privacy. To establish liability, plaintiffs must demonstrate elements such as duty of care, breach, causation, and damages. Awards of damages consider both statutory and common law principles.

One such principle is the “voluntary assumption of risk”—expressed as Volenti non fit injuria, meaning “to a willing person, it is not a wrong.” In simpler terms, if an individual voluntarily assumes a risk, they cannot later seek compensation for injuries resulting from that risk.

Dale’s Situation

Dale, the new swimmer, has knowingly accepted a level of risk by participating. He cannot seek compensation for normal accidental injuries that may occur during routine open-water swims with this group. However, there are scenarios where liability could indeed arise. Let’s explore some scenarios.

Dale assumes that this is a formal swimming group.

The swimming group gives the impression of being a formal swimming organization. It has a well-maintained Facebook page with active administrators who post regularly and keep the group engaged with scheduled swim times. However, their focus seems to be on organization and social aspects, rather than safety or swimmer capabilities.

Dale is invited by a friend in the group to join the swims. Because the group presents itself similarly to a club, Dale assumes it offers a higher level of care and safety. Tragically, Dale drowns while swimming with the group.

Dale has participated willingly, “to a willing person, it is not a wrong”. However, a lawyer might argue that the group’s formal presentation suggests a ‘duty of care.’ The specific circumstances of the accident will determine liability, but there is a risk nonetheless. We’ll explore some of these potential circumstances below.

Meanwhile, the informal group should be clear about its status. To avoid potential liability, the group should clearly state that it’s an “Informal group of swimmers” or a “Social swimming group.” This notice should be prominent along with a disclaimer statement such as “Participate at your own risk”. It clarifies that there’s no formal organization responsible for individual safety. There are other sample statements listed below too.

An informal swimming group is similar to a few friends meeting for a swim but on a larger scale. It’s a group that formed organically and it is a wonderful thing. Individuals like to swim together, they look out for each other’s well-being and have a great time together.

Someone is negligent.

Being negligent is being negligent. Even a liability waiver can’t protect someone who acts negligently. In simple terms, negligence occurs when someone is injured due to the actions, or inaction, of another person. To win a negligence claim, however, it’s necessary to prove that the other person had a legal “duty of care” towards the injured person.

In Australia, friends generally don’t have an automatic legal duty of care for each other. This means a friend wouldn’t necessarily be responsible for accidental harm caused to another friend.

However, there are some circumstances where a duty of care can arise.

Dale follows into treacherous domains.

Dale knows that this swim group is informal. It’s a few friends swimming together. A lot of friends.

A duty of care can arise in certain situations between friends. This depends on the specific circumstances and can be based on:

  • Foreseen harm: If a friend creates a situation where they knew or should have known their actions could lead to harm to the other friend, a duty of care might exist.
  • Assumption of care: If one friend takes on a specific responsibility for the other’s safety, like driving them home intoxicated, a duty of care could be established.
  • Special circumstances: In situations where one friend is vulnerable due to age, mental capacity or disability, the other friend might have a duty to take reasonable care to avoid harm.

George is Dale’s friend who invited him to join the swim. George advised Dale, “As you are new, I will look out for you in the swim”. George has assumed a duty of care and could be liable for being negligent to Dale by taking him into treacherous domains beyond his capability or for willfully ignoring Dale’s safety. The level of George’s knowledge and experience to provide duty of care would be assessed in the liability claim.

Dale meets a natural leader of the group.

Dale joins the social swim group. Pete or Dianne, experienced swimmers familiar with the area, lead the group by calling the day’s route and distance. They offer free advice based on their knowledge and safety expertise, which the swimmers value. Dale feels reassured by their guidance.

Unlike casual friends, Pete and Dianne’s experience creates a potential duty of care towards the group. This means a higher standard of care might be expected from them compared to a simple friend-to-friend situation.

If Pete or Dianne start charging for their advice, their role transforms from leader to coach. As coaches, their duty of care is obvious, they would need qualifications and insurance.

Dale is a great regular summer swimmer but has turned up for his first ever winter swim at temperatures below 10 celsius.

What do you think about this scenario? Do the experienced swimmers have a ‘Duty of Care’ to Dale?

Experienced cold water swimmers likely have a deeper understanding of the dangers and acclimatization process. Dale being a regular summer swimmer but new to winter swims suggests he might not be fully aware of the specific risks.

Considering these points, here’s what could influence the duty of care:

  • Pete/Dianne’s knowledge and actions: Did they advise Dale about the significant difference between summer and winter swims, the importance of acclimatization, or any potential risks specific to the cold water?
  • Dale’s receptiveness: Did Dale actively seek advice or express any concerns about the cold water?

If Pete/Dianne, aware of the significant risk difference, failed to warn Dale or downplayed the dangers, there could be a stronger argument for a duty of care breach. If Dale didn’t raise any concerns or ignored warnings, the duty of care would be minimal.

Mitigation

Ideally, it is best to be clear to all participants. Here are some statements that sound harsh but may prevent a tragic outcome;

  • “Participate entirely at your own risk.”
  • “To swim with us you must acknowledge that you are capable and do so entirely at your own risk.”
  • “Participate at your own risk, do not expect a duty of care, we are not responsible for you.”
  • “Participate at your own risk, do not expect a duty of care from others beyond friendship.”

One does not usually say these kinds of statements between friends. However, as a group grows it is best to clearly state it. Pete or Dianne, the experienced group leaders may call this out at the beginning of the swim when they call a route. A Facebook group administrator may add this to their group entry form or social media platform profile to make it clear to all including newcomers.

Is a complete liability waiver form required? This is a good idea except that providing one sets up an informal group into a more formal group. If you want to be 100% clear; Yes, get everyone to sign a waiver. At this point, do not forget to collect the participant’s emergency contacts too. Click here to download a sample waiver document.

Please let us know what you think. What does your group do for this issue? Did you seek legal advice? Are you a lawyer, can you add more? Are there other scenarios you’d like to examine further? Have any incidents happened with your group that we can all learn from? Let us know in the comments below.

This Post Has 4 Comments

  1. Nigel

    Thanks so much for this! 🌺🙏❤️🏊‍♀️🥶
    I will read again, and sit with it, see if any questions arise.
    For now,
    Sending gratitude 🙏
    Nigel

  2. TheRipSwim

    Definitely a good idea to consider this carefully if you are involved in an informal group. Thanks for sharing g it. The article is very thorough and certainly worth reading.

  3. John Pratt

    Thank you for this article. The informal groups described pretty much exactly mirrors our group of swimmers. Water is currently around 11c but falling toward single figures in July and August and we do occasionally have visitors from northern climates. We hope that the information provided is never needed but I will seek to have the key points on negligence known throughout our group.

  4. Melbourne Open Water

    No it’s not enough to say “we are all here at our own risk.” If you have a public facebook page or similar you’re a swim group and are potentially liable. If you meet at a lifesaving club and don’t follow lifesaving guidelines you are potentially liable. If you ask people at your local swim club or pool to come swimming in the sea, you are potentially liable. There are too many unsafe swim groups. There are too many macho group leaders saying there’s nothing to worry about. There’s too many actual commercial operators who ignore all the guidelines and rules, event the requirements of their own insurance policies. If a swim coach or swim group leader asserts that they are insured but they don’t have a tour operator license, they are NOT insured and not compliant.

Leave a Reply