If I tick this box do I give up my rights?
This is becoming more common. If you go to the US or Canada you'll find their disclaimers are worded in a way that say "even if you die because of our negligence you can't sue us."
I don't know anyone who knows anything about insurance that thinks they're worth the paper they are printed on but I don't actually know what the legal position is.
Perhaps someone will come along later who does.
Under the Unfair Contract Terms Act 1977 a business cannot use a contract term or a notice (i.e. a disclaimer) to exclude or restrict its liability for negligence causing death or personal injury. In the case of other loss or damage, a disclaimer will only be effective so long as it is reasonable in all the circumstances. So as long as you can show negligence, or an at least an expectation that a certain amount of care was reasonable, you can still sue, even if you're dead
Define "reasonable" - it is the most elastic of words.
I've always thought that it means, basically, "you can't pin anything on us beyond the very bare statutory minimum".
Not quite sure what the bare statutory minimum responsibilities are to us, though. Hopefully someone cleverer than I am can explain.
'reasonable' in a legal situation can only be defined by a Court of Law and will dependent on the specifics of each case. What may be reasonable in one situation, may not in another.
As far as what we are required to do (if you mean 'us runners') then we would be expected to behave in a 'reasonable' manner. If any loss or damage could be demonstrated to be a result of an act we instigated, then 'they' would argue they were not at fault, even if negligence could be demonstrated. Again this could only be settled/defined in Court.
If a race was for 8-yr-olds, the organisers would have lots of responsibilities that are implied, rather than specifically written down in law. So if a kid ran off a hidden cliff because they ignored a pre-race instruction to keep to the path, I suspect they would be held liable (if it was reasonably foreseeable)
The judge MIGHT make a different judgement if an adult fell off the cliff in similar circumstances.
As much as they'd like it, race organisers cannot absolve themselves from action if they are grossly negligent... but by getting you to tick that box, I think they are trying to remove ALL implied responsibilities... so they can only be liable if they are particularly negligent. They are moving the reference point for any court judgement.
There is the other end of the spectrum, which is probably the main reason for the disclaimer - if you left your bag at the bag tent for example, which is manned by volunteers and no one else was allowed in, and your phone was nicked, the organisers are saying they are not responible for that. Which i guess is reasonable???
I completely agree with you SR. How are you supposed to know what a disclaimer does and doesn't cover?
Rafiki - do you think this vagueness is a deliberate ploy to stop people pursuing claims that might actually be perfectly reasonable?
I guess from the kind of scenarios we are discussing, the disclaimer merely becomes an acknowledgement that you have read the T&Cs/race blurb and hence having your phone stolen was your own stupid fault (assuming the race organisers didn't leave it in the back of an open van in front of everyone).
But then again if we all ran races whilst listening to music on our iPhones, instead of foolishly leaving them in our bags, my point would be moot!
Screamapillar - I don't think its deliberately vague, but more necessarily vague. The point raised by Runwales sums it up. You can't legislate for every scenario (mainly because life progresses quicker than legislation!), so you have to leave room for judgement.
Basically, if the organisers are negligent, they are liable for death or personal injury. It's actually a criminal offence to use disclaimers like this and I wish they'd stop. I would say something like "please make sure you are fit and healthy before you do the race" and stop there.
As for the rest, well it has to be reasonable. The view of reasonable will differ but if you want to get a view of what a court would say, have a look at the OFT's website.
Something called 'Due Diligence' would probably cover the organisers.
If they can 'prove' that they have taken all reasonable precautions then they can't be held responsible for the actions of others operating outside of those precautions.
'Due Diligence' may simply extend to saying 'NO IPODS' on account of not hearing the marshalls instructions. If you don't hear the marshall shout "mind that lorry, stop!" and you get flattened, then they cannot be held responsible for your accident.
On the other hand, if for some reason the course sends you over Beachey Head, you may have a case. Or would have done.
On what basis is it a criminal offence to include a disclaimer hellywobs? Where did you get that idea from - a bloke in the pub? It's not illegal at all (or else UKA and the FRA amongst others wouldn't require things like this!).
However, as has been stated, an organiser can't exclude liability for anything caused by the negligence of the organisers or their staff, but they can exclude liability for the stupidity of many runners (and believe me, many are stupid in different ways on race days - I've seen it all over the years) who act outside of what a court would deem to be reasonable. Conduct has to be "reasonable" on both sides of the fence - competitors have a duty of care to the organisers, other runners, spectators and road users - a lot of runners seem to forget this responsibility when they put their running shoes and a race number on!
I think the basis is "The Unfair Contract Terms Act" It is possible to limit your liability for things that are reasonable. What is reasonable depends on a number of tests. It is illegal to limit liability for death or Personal injury due to their negligence.
This case (Thornton v Shoe Lane Parking 1 All ER 686) demonstrates that for an Exclusion clause to be incorporated into a contract, other than by explicit agreement, the affected party must be given adequate warning. Mr Thornton parked his car in a commercial car park. The car park did display a sign to the effect that cars were parked at the owner's risk. As it happens it was Mr Thornton that was injured, not the car. The car park's terms of business were printed on the back of the ticket issued from the ticket dispenser but, it was ruled, this did not form part of the contract as the contract was concluded before the ticket was issued. The notice on the building was deemed insufficiently precise to allow a disclaimer of liability for injury. This case was one of many in which Lord Justice ` I-hate-exclusion-clauses' Denning used the rules of incorporation to defeat exclusion clauses that mitigated against consumers. These days such technical manoeuvres would be unncessary, as a contract term disclaiming liability for personal injury would be deemed void under the UnfairContractTermsAct1977.
Visit the official Runner's World page
Follow Runner's World on Twitter
Other Natmag-Rodale Sites
Run For Charity
About Runner's World
Runner's World is a publication of Hearst Magazines UK which is the trading name of The National Magazine Company Ltd, 72 Broadwick Street, London, W1F 9EP. Registered in England 112955. All rights reserved.
Website powered by: Immediate Media Company Limited. | © Runner's World 2002-2013 |