Insurer wary of liability in Kendall case

By PHIL TAYLOR

Olympic champion boardsailor Bruce Kendall is understood to have insurance covering possible liability for an accident that crippled a top American competitor.

But a source close to the Kendall family told the Herald that his insurer was "running for cover".

Who Kendall's employer was at the time of the accident was among issues raised, the source said.

Kendall was driving a motorboat that hit No 1-ranked United States women's boardsailor Kimberly Birkenfeld in Greece last August.

He pulled her from the water and resuscitated her.

Birkenfeld suffered brain and spinal injuries from which she is unlikely to fully recover.

She and US Olympic sailing team chairman Fred Hagedorn are questioning a Greek Coastguard inquiry - which did not determine fault - and the account Kendall and his passenger gave of the accident.

Mr Hagedorn is having the report translated into English.

Birkenfeld, who uses a walking frame and whose speech and emotional responses are affected by the head injuries, said she did not consider the Coastguard inquiry closed. She had not been interviewed for it.

Kendall and his sister, Barbara, were friends of Birkenfeld.

Bruce Kendall has won Olympic gold and bronze and Barbara won gold, silver and bronze.

Birkenfeld said the account of the accident given by Bruce Kendall and the passenger seemed inconsistent with damage to her sailboard.

A lawyer for Birkenfeld has written to Kendall.

Kendall is overseas and the Herald could not contact him.

At the time of the accident, he was contracted to Yachting New Zealand as a coach of Kiwi boardsailors competing at the pre-Olympic regatta.

National teams and coaches are normally covered, including public liability, by insurance arranged by Yachting NZ.

The organisation confirmed that Kendall was employed for the regatta, but chief executive Simon Wickham would not comment on insurance cover or name the insurer.

"Because Kimberly has got lawyers involved, I'm reluctant to comment."

Birkenfeld could file legal action in Greece, the United States or New Zealand but there are significant hurdles.

International law specialist Alberto Costi, a senior lecturer at Victoria University, said the action would allege tort (law dealing with breach of duty) or negligence. It was up to the party bringing the action to prove fault.

Courts would be reluctant to hear the case unless the defendant had been formally served with court documents. If action was taken in the US or Greece, Kendall would have to be served while in that country.

Dr Costi said there had been cases where the defendant was served with documents in a US transit lounge awaiting a flight.

If damages were awarded overseas and the defendant's assets were in New Zealand, the plaintiff would need to ask New Zealand courts to enforce the decision, either by a common-law action or registering the judgment under the Reciprocal Enforcement of Judgments Act 1934 or the Judicature Act 1908.

Birkenfeld would not comment on whether she planned legal action.

She said she hoped what happened to her would prompt new safety measures. Her accident was one of two last year involving powerboats at Olympic-class regattas.

"It has become very important to me to see that something good comes from all of this pain. I urge the powers that be ... to implement safety regulations for powerboats involved in small sailboat regattas."

A former New Zealand Olympic yachtsman, who did not want to be named, said the risk of such accidents could never be eliminated but it would be easy to require support motorboats at regattas to have protective cages around their propellers.

Birkenfeld believes she was struck by the propeller.