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7 year court case highlights risk management in windsurfing

KIWI Olympic boardsailer Bruce Kendall has finally won a nearly seven-year legal battle with his one-time pupil and friend, American Kimberly Birkenfeld. This case has haunted both Bruce and YNZ over the last 7 years, and has motivated YNZ to increase its risk cover by a factor of 10. WNZ is currently working towards providing the same sort of cover to clubs and classes affiliated to WNZ.

On Wednesday the Supreme Court ended a multi-million dollar lawsuit by Birkenfeld against Kendall and Yachting New Zealand.

Birkenfeld once the United States' top female boardsailer started the action after suffering severe brain and spinal injuries when her windsurfer collided with a Yachting New Zealand motorboat driven by Kendall in August 2002.

"I just hope she (Birkenfeld) can now focus a bit more on getting well and making the most of her life instead of being retrospective," Kendall told Sunday News.

Birkenfeld had maintained she was stopped when Kendall ploughed into her about one nautical mile from the Olympic sailing venue in Athens, Greece.

But Kendall, who won gold at the 1988 Summer Olympics at Seoul, said Birkenfeld came at him at high speed and he couldn't avoid the accident. His account was backed by Greek authorities who investigated the incident.

At the time of the incident Kendall brother of fellow gold medallist Barbara Kendall was coaching three Kiwi boardsailers at a pre-Olympics regatta.

"Out of the corner of my eye I saw a shadow coming towards me at high speed, at the left side of my craft," Kendall told Greek investigators at the time.

"I immediately made a manoeuvre to avoid it but the speed of the windsurf board was so high that it hit the back left side of my craft."

Afterwards, Kendall pulled Birkenfeld unconscious from the water, resuscitated her, then accompanied her to hospital. She was unconscious for 30 days, and stayed in hospital for two months.

Birkenfeld now relies on a wheelchair to travel long distances, suffers shortness of breath and struggles to speak but despite these ailments she has travelled from her home in Miami, Florida, to represent herself in New Zealand courts on several occasions.

In 2004, she filed a $15 million claim against Kendall and Yachting NZ who then collectively won orders in the High Court limiting compensation payable to Birkenfeld to the extent of Yachting NZ's insurance cover of $500,000.

The High Court also issued a stay of proceedings, effectively halting Birkenfeld's case. Birkenfeld unsuccessfully challenged that decision in the Court of Appeal last year, then took her case to the Supreme Court in December.

On Wednesday the Supreme Court rejected her appeal and jointly awarded Kendall and Yachting NZ $2,500.

Yachting NZ has not admitted liability for the accident but, following the High Court decision in 2007, put $500,000 into a secure account for Birkenfeld. To date she has not accepted the money, which including interest, is now understood to be around $700,000.
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Kendall who became a father for the first time two weeks ago said the prolonged legal battle has been "pretty horrible" and he'd felt like his "life has been on hold".

"It's been going so long now I struggle to believe it's over," he said. Kendall said he has wanted to help Birkenfeld from the start but her legal proceedings against him made that impossible.

Yachting NZ chief executive Des Brennan said Birkenfeld's case had the potential to sink his organisation, and he's "very pleased and relieved it's come to an end".

His organisation wasn't "obliged" to compensate Birkenfeld but put money aside for her in 2007 in the hope it would "bring to an end" the costly proceedings.

Brennan said the case had consumed much of his time. For the last four and a half years he said he'd spent several hours a week working on it.

The Supreme Court decision left him with "mixed feelings".

"There is part of me that is deeply regretful that this has happened because nobody should have to suffer the loss of opportunity that she has suffered ... someone has a great measure of sympathy for someone so talented should suffer in this way," he said.

But he said that had been "tempered" by the fact she had been a "serious adversary to both Yachting NZ and Bruce".

Brennan said since Birkenfeld's accident, Yachting NZ now takes out between $5 million to $10 million insurance to ensure they will be covered for any eventuality.

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