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Legal Eagles - Disclaimers (Semi OT)

Coach HCoach H Posts: 1,092
edited March 2013 in Commuting chat
This seems to be where the lawyers hang out (cue ITB to make pun about Greg66 'hanging out').
So any Tort Law experts out there who can give an opinion.

A recent thread on Road Beginners started a side discussion about Sportive organisers trying to make helmet use mandatory but resorting to disclaimer forms for those who would not comply. I seem to have killed off the thread by posting my laymans understanding on disclaimers for potential claims for personal injury. Obviously even simple legal concepts have bored the general populace ridgid.
However I am still interested if my understanding is correct. Anybody able to confirm or correct?
Coach H wrote:
CiB wrote:
as long as they sign the disclaimer at the sign-on.

My understanding is that this type of disclaimer is meaningless as it constitutes an unfair contract (s.2 of the Unfair Contract Terms Act 1977 I think) due to you signing away your legal right for the organiser to have a duty of care for you (Donoghue v Stevenson [1932]). They are actually used by organisations who have not had legal advice and think they will protect them or by organisation who have had (dodgy) legal advice and they are being used to put people off making a claim.

The organisers could, in the event of a claim, use the defence of 'Volenti non fit Injuria' (to one who volunteers, no harm is done) but usually this would not work as the 3 requirements of the defence are thus:
1. Voluntary - not likely as the organisers are enticing the participants to ride and participants are only doing the route due to the event

2. Agreement - Normally where the disclaimers come in. There is some suggestion that these disclaimers will work when considering the summary of Nettleship v Weston [1971], Lord Denning:"Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him". 'Lack of Reasonable Care' is the key phrase here as, in the case of Sportives, it would likely be ruled that enforcing helmet use constitutes 'reasonable care'. The 'duty of care' bit also revolves around reasonable care, again see Donoghue v Stevenson [1932], Lord Aitken:"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". I think organisers can 'reasonably forsee' that a head injury may occur if a helmet is not worn for their event (a participant being the organisers neighbour in this context).

But this is also ruined by
3. Made in full knowledge of the nature and extent of the risk. - Easy to argue that any injured rider was not FULLY aware of the risks and consequences as in the disclaimer the organisers will not be able to idetify ALL the means and injuries that may occur should you fall/be knocked off. Far fetched example; Plaintifs Lawyer "Mr Claimant, when you signed the disclaimer did you realise that you were at risk if incuring deafness due to brain injury caused by a scull fracture, that may reasonably have been prevented by the wearing of a cycle helmet, due to a clown on a unicycle running over your head after you were knocked to the ground by a runaway ostrich?" This type of arguement could be applied to pretty much any specific eventuality.
Coach H. (Dont ask me for training advice - 'It's not about the bike')

Posts

  • bompingtonbompington Posts: 7,674
    Well done, now you've killed off this one too ;-)
  • Coach HCoach H Posts: 1,092
    bompington wrote:
    Well done, now you've killed off this one too ;-)

    Yeah, figured there was a risk of that! :lol::lol::lol:
    Coach H. (Dont ask me for training advice - 'It's not about the bike')
  • cjcpcjcp Posts: 13,345
    Disclaimer aside, isn't there always the issue of causation? Wouldn't it be necessary for the injury to have been caused by the organisers? The injury may have been caused by the rider's own riding, the actions of another rider or riders, other road users, the condition of the road*.

    There was a case on helmet-wearing about three or four years ago. A rider was hit by a car in a lane and suffered head injuries, and there was a question of contributory negligence on the rider's part for not wearing a helmet. I think the Judge said con neg couldn't be ruled out in the right circumstances, but, in this case, wearing a helmet would have made no difference, such was the force of the impact. Smith or something?

    *EDIT: re condition of the road, I can see some sort of argument that the organisers would have to check the route, but I don't know how that would fit in with the obligation on a council to ensure that the road is in a reasonable codition (Highways Act, I think).
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  • Whilst I wouldn't claim to be a tort lawyer (but I hang our *massively*), s 2(1) of UCTA prevents a party to a contract excluding liability for personal injury or death.

    But, as CJ says, if someone gets a head injury during a sportive, it's quite a leap to say that a specific act or omission by the organisers caused (in whole or in part) that injury. The irder would have to argue that he organisers had a duty of care to ensure that he wore a helmet, to prevent him riding if he did not do so, *and* that had he worn a helmet, it would have made a difference to his injury (cue: Prof WGWarburton of the rotational head injuries dept). If the rider chose not to wear a helmet, against the rules of the event, the greater part of the blame rests with the rider (IMO).

    All that said, PI law in tort often takes a route that results in the party that carries insurance being saddled with more fault than one might otherwise expect...
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  • rjsterryrjsterry Posts: 19,312
    All that said, PI law in tort often takes a route that results in the party that carries insurance being saddled with more fault than one might otherwise expect...

    *chuckle*
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  • Coach HCoach H Posts: 1,092
    All that said, PI law in tort often takes a route that results in the party that carries insurance being saddled with more fault than one might otherwise expect...

    Is it not more the case that its not the tort law that drives this, its the money? Why would insurers fight a claim that they would win at law when it would cost them less to settle without predudice? Damn lawyers and their fees! :wink:

    Thanks Greg and CP
    Coach H. (Dont ask me for training advice - 'It's not about the bike')
  • bigmatbigmat Posts: 5,111
    Similar thread over in "Amateur Race" - as Greg says, you can't exclude liability for death / personal injury in the UK. You can elsewhere though, so always worth checking the disclaimers you sign on holiday! For sportive organisers to be liable they would have to be negligent and that negligence would have to have caused the injury. So, you could argue at a push that it was negligent to allow somebody to ride without a helmet (but its not legally compulsory and most sportives are on open roads) AND you would need to show that the failure to compel the cyclist to wear a helmet caused his injuries (not such a big step in my opinion although many will disagree). You then have the issue of whether a cyclist who refuses to follow instructions to wear a helmet has contributed to his own injuries -almost certainly - and in any event there is a voluntary assumption of risk in choosing to participate in such an event (probably more applicable to racing to be fair).
  • bigmatbigmat Posts: 5,111
    Coach H wrote:
    All that said, PI law in tort often takes a route that results in the party that carries insurance being saddled with more fault than one might otherwise expect...

    Is it not more the case that its not the tort law that drives this, its the money? Why would insurers fight a claim that they would win at law when it would cost them less to settle without predudice? Damn lawyers and their fees! :wink:

    Thanks Greg and CP

    The Courts are horribly biased in favour of claimants against insurance companies. Blatantly so in my experience. Its the claimants' solicitors who have been taking the **** on fees over the past 10-15 years as well, which is why they are now getting stuffed with the latest round of reforms. :lol:
  • phy2sll2phy2sll2 Posts: 680
    bigmat wrote:
    The Courts are horribly biased in favour of claimants against insurance companies. Blatantly so in my experience. Its the claimants' solicitors who have been taking the **** on fees over the past 10-15 years as well, which is why they are now getting stuffed with the latest round of reforms. :lol:

    From what I've seen, it's like they don't even realise they're in trouble? There was a bit of protest from the claims farmers, but of course the ABI carries so much lobbying weight that it never got anywhere.

    Will be interesting to watch a whole industry shrivel like a slug covered in salt.
  • mrc1mrc1 Posts: 852
    cjcp wrote:
    There was a case on helmet-wearing about three or four years ago. A rider was hit by a car in a lane and suffered head injuries, and there was a question of contributory negligence on the rider's part for not wearing a helmet. I think the Judge said con neg couldn't be ruled out in the right circumstances, but, in this case, wearing a helmet would have made no difference, such was the force of the impact. Smith or something?

    This reads like most of my law finals :lol:
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  • SketchleySketchley Posts: 4,235
    I understand why, in the UK at least, you can't exclude liability for death / personal injury. However, in the case of a sportive organiser running an event would the same not be acheived by inserting a clause into the terms and condition, either tacitly accepted or signed y the rider, that says wearing a helmet is compulsory to take part in the event, and all riders accept that in not wearing a helmet whilst riding on the course they are withdrawing from the event and are no longer not participating in the event and are no longer covered by event insurance.

    In doing this any rider not wearnig a helmet just becomes the same as anyother cyclist not taking part in the event that happens to be on the road at the same time and the decision to not wear a helmet whilst doing so would not have anything to do with sportive organiser. Normal traffic law would apply. The organiser may have to take steps to ensure they do not tacity allow the rider to continue to participate once they have removed thier helmet, so may choose to stop recording and publishing timings for that rider, and to also refuse access to feeding stops, mechanical services etc, should they be seen without a helmet at a check point etc. Of course this would not stop the sportive organiser for benig liable for death / personal injury caused by thier neglegance, to other road users, but they could not be held liable if not wearing a helmet was contributory.
    --
    Chris

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