Running scared from disclaimers

I’m a keen runner and often enter various length races from 5k to half marathons. I am frequently surprised by the disclaimers.

I’m sure that you all remember the basic rules under the Unfair Contract Terms Act 1977 (UCTA) which aims to reduce unfair terms in contracts.  Section 2 states that you can’t limit or exclude liability for death or personal injury caused by your negligence.  Hence why you often see contract terms along the lines of  'nothing in these terms excludes any liability that cannot be excluded by law' (etc). 

It is also unlawful to mislead consumers about their legal rights under the Consumer Protection from Unfair Trading Regulations 2008, which repealed the earlier the Consumer Transactions (Restrictions on Statements) Order 1976. This statutory instrument made it an offence to use certain kinds of unfair contract term or notice.

In addition, contracts with consumers are governed by the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). Schedule 2 to the UTCCR states that the following would be unfair:

excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier

Is there an exemption for sports events?  I didn’t think so. 

Assuming the organiser is considered to be a trader, UCTA and the UTCCR will apply.  Many races are organised by commercial entities, others by not-for-profit clubs, but they may still be considered to be a trader under the legislation.

I’ll give you a flavour of the sorts of disclaimers that I have come across when entering races:

I accept the organisers will not be liable for any loss or damage, action, claim, cost or expenses, which may arise as a consequence of my participation in this event. I declare that I will not compete in this race unless I am in good health on the day of the race and that, in any event, I will only compete at my own risk. I hereby acknowledge that qualified first aid cover will be provided.

or

I understand that I enter this race at my own risk and that no person(s) or organisation(s) will be held responsible for any accident, injury or loss to me prior to, during or after the event.”

Have I missed something?

It’s reasonable enough to expect people to only take part if they’re fit and have respected the challenge and done some training, and organisers go to great lengths to ensure peoples’ safety with signs, marshals, first aid points etc.

However, if they are negligent, and someone hurts themselves as a result, they can’t waive liability. Most events are run under the rules of British Athletics or the Association of Running Clubs.  You would have thought that they would require race organisers to comply with the law. 

When I was researching this blog post, I noticed a similar post by a law firm relating to equestrian events.  Arguably falling off a horse is likely to have a lot more serious implications than falling over when running, although if you are run over because a marshal sent you into the path of a car, you might well be very badly injured.  But interestingly, equestrian events seem to use the same kind of disclaimers.

The Office of Fair Trading is quite clear on this point in its guidance on unfair terms, saying:

Disclaimers of this kind, like other exemption clauses, may be acceptable if they are qualified so that liability for loss or harm is not excluded or restricted where the supplier is at fault, or is disclaimed only where someone else – or a factor outside anyone's control – is to blame. Another possible route to fairness where a contract involves an inherently risky activity, is that of using warnings against hazards which provide information, and make clear the consumer needs to take sensible precautions, but do not have the effect of excluding or restricting liability

So what is the solution?

I was involved in organising a series of cross-country events last year and the organisers used this disclaimer:

I declare that I/my child/children am/is/are medically fit to take part in this event and understand that I/they enter at my/their own risk although the organisers have taken reasonable steps to promote the safety of participants…I will comply with all instructions given by the race organisers/marshals

Arguably telling people they do something at their own risk is a limitation of liability as well, and the OFT makes this point in its guidance on unfair terms. But I think this version is a stage better than the usual attempts.  An even better option might be:

By entering this event, I agree that I will only take part on the day if I am in good health and will undertake adequate training for the distance I am running.  I understand that the organisers will take reasonable steps to promote my safety and that I must comply with all instructions given by the race organisers and marshals

What do you think?