BPA: SIDESTEPPING THE LAW?

SIDESTEPPING THE LAW

By Chartered Health and Safety Practitioner Mike Bravo

In his article Protection Racket, Don Canard examines the insurance cover that full and temporary members are obliged to pay British Parachute Association Ltd, trading as British Skydiving. 

The current primary legislation is The Insurance Act 2015, which provides no specific legal requirement for persons engaged in recreational parachuting activities to be insured. However, insurance cover is certainly to be recommended.

However, if you are engaged in this activity under some form of contractual arrangement, the requirement for insurance may form part of the terms and conditions. This does not extend, subsequent to case law, to compulsory purchase of a particular insurance policy. 

If, for example, you book a holiday or hire a car, you are not obligated to pay additional fees if you have made adequate alternative arrangements. You have a freedom of choice and are certainly not required to double-indemnify. 

This is laid out clearly in the Financial Conduct Authority Handbook (May 2020) –– Insurance: Conduct of Business.

Civil Aviation Publication 660, co-produced by BPA Ltd with the Civil Aviation Authority, is explicit on the question of insurance.

CAP 660 –– Parachuting

Insurance

2.20 The operator is responsible for ensuring that insurance cover adequately meets regulatory requirements. The operator should ensure that parachutists have adquate liability insurance for the intended type of parachuting activity. The requirement for aircraft insurance cover is contained within Articles 6 & 7 of Regulation (EC) No. 785/2004.

Thus, CAP 660 makes it clear that responsibility for ensuring that parachutists have adequate insurance is the responsibility of the Parachute Training Organisation (PTO) as this is where the contractual relationship with the parachutist exists.

However, the situation changes when parachuting is being conducted as a work activity by, for example, BPA-rated instructors and examiners, display teams and freelance or self-employed instructors or coaches working at a BPA-associated event. This also applies to parachute rigging and equipment hire service providers. 

Generally speaking, you are only required by law to have employers' liability insurance for people whom you employ under a contract of service or apprenticeship. 

Whether or not you need employers' liability insurance for someone who works for you depends on the terms of your contract with them –– Employers' Liability (Compulsory Insurance) Act 1969. 

In any profession or occupation, you will normally need insurance to protect your business and also your clients. For individuals or companies providing any form of training or consultancy, there are two supplementary forms of insurance that should be purchased in addition to any compulsory employers' liability cover: Public Liability Insurance and Professional Indemnity Insurance.

This is where matters become somewhat opaque with regard to BPA Ltd and the insurance cover that the firm obliges members and affiliated organisations to buy. 

As Don Canard notes, BPA Ltd's insurance does not cover persons at work –- employees –– but is restricted in effect to member-to-member situations, which is a potential conflict in its own right.  Now, let's take another look at CAP 660 and what it says about legislation like the Air Navigation Order and other regulations.

CAP 660 –– Parachuting

2.4 Nothing in CAP 600 is intended to conflict with the ANO or other legislation, which in case of doubt must be regarded as overriding.

3.12 The use of a Safety Management System (SMS) is mandatory for PTOs and Display Teams.

It is therefore recommended that they refer to CAP 795: SMS Guidance for Organisations and CAP 1059: SMS Guidance for small, non-complex organisations in order to fulfil this requirement. 

CAP 660 clearly recognises that persons are at work. In other words, they are consequently subject to the Health and Safety at Work Act 1974 –– which is therefore the primary governing legislation –– and its regulations, particularly the Management of Health and Safety at Work Regulations 1999. 

CAP 660's Safety Management System requirement is interesting as these are high-level risk-based safety documents and, in many cases, replacements for Safety Cases.

An SMS pertains to the Policy, Organisation and Arrangements as required under Section 2 of the Health and Safety at Work Act 1974 and would be considered in law as overriding any operations manual, particularly one written by an amateur sports organisation like the British Parachute Association. 

Don Canard's analysis of BPA Ltd's insurance cover suggests that it is worthless because it is written in such a way as to render difficult or impossible any claims by those forced by BPA Ltd to buy it. 

On top of that fact, it is not even necessary as the BPA-affiliated Parachute Training Organisations are required to ensure that their clients have their own insurance, as stipulated in CAP 660, written by BPA Ltd and published by the Civil Aviation Authority. 

If the recently-formed Parachute Training Organisation Association were to seek reimbursement or compensation from BPA Ltd for the BPA levy imposed on tandem skydiving fees charged by the PTOs over the years, it might bankrupt BPA Ltd.