Jock Anderson

Former world ranked board sailor Kimberley Birkenfeld, of Miami – now seriously disabled – has lost a court battle to win multi-million dollar compensation from Yachting New Zealand.

In a decision given on Friday, November 10, the Supreme Court declined Ms Birkenfeld leave to appeal against an earlier Court of Appeal decision limiting Yachting New Zealand’s liability in the claim to $500,000.

Ms Birkenfeld, who described herself in legal papers as an “incomplete quadriplegic,” was training in Greece in August 2002 when she was involved in an accident with a rigid inflatable boat (RIB) owned by Yachting New Zealand and being controlled by New Zealand Olympic gold medallist sailor Bruce Kendall, who was coaching her at the time.

As a result of the accident she was severely and permanently injured. It was earlier claimed she was too scared to come to Auckland for the court proceedings in case she was publicly harassed.

Ms Birkenfeld sought $15 million in damages from Mr Kendall, Yachting New Zealand and the International Sailing Federation, in proceedings before the High Court in Wellington.

The Supreme Court, comprising Chief Justice Dame Sian Elias, and Justices John McGrath and Noel Anderson, dealt with an application by Ms Birkenfeld to amend her initial application for leave to appeal.

The court said the amendment was an attempt to recast and expand upon “rather succinct” submissions she had previously filed.

Ms Birkenfeld, who was unrepresented and presented her case by affidavit effectively argued that limiting a vessel owners’ liability should only apply to those engaged in trade and the RIB was outside that scope.

Yachting New Zealand earlier welcomed last year’s court decision limiting of its liability saying if the claim was to be successful liability was limited to a manageable level.

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