I am going to be doing one of those rally experience thingummys soon and in the information pack it says all participants will have to sign a waiver saying they will not hold the organisers responsible for any injury or death that occurs while they are participating. I know motorsport is dangerous and I accept that risk but I thought it was not possible to sign away your legal rights? Health and safety rules would still apply and people would still have the right to sue if injury resulted from negligence of the organisers rather than just a normal motorsport style accident eg if safety checks were not carried out on the vehicles and an item failed which could have reasonably been noticed on a safety check had it been carried out.
As it is motorsport does it actually absolve the organisers from *any* responsibility and the waiver is just confirming a particpants understanding of this or do some health and safety rules still apply and the waiver is trying to (legally or illegally) trying to get round them?
teabelly
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Under the Unfair Contract Terms Act 1977 (and I'm sure, many reguations since) it is impossible to exclude by terms of a contract any liability for death or personal injury. Any contract purporting to do this is automatically void.
There was a case from 1972 on somebody who was killed by the negligence of a motorsport event organiser (I forget the name) and at common law, the waiver - which I think in that case was just a notice - was held to be valid, but of course statute takes precedence over common law.
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I think it is designed to say that they are not responsible for any injury caused by your mistakes. Obviously anything caused by a failure of their equipment would still be their liability.
I've done a couple of these myself, but can't remember the wording, sorry.
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There is a legal principle called "volenti non fit injuria" which means that no one can enforce a right which he has voluntarily waived or abandoned.
However, case law has indicated that this maxim cannot be used as a complete defence to cases of negligence. Slipping into legalese:
This was effectively put by Lord Denning MR in White v Blackmore [1972] 2 QB 651 in the context of a claim by dependents of a spectator killed whilst watching a jalopy race when he stated:
?No doubt the visitor takes on himself the risks inherent in motor-racing, but he does not take on himself the risk of injury due to the defaults of the organisers.?
In your case, you are accepting that you run the risk of death or serious injury by participating in the event, and the organisers cannot be held liable for such an occurrence. However, if any injury was a result of their negligence, for example, through a failure to adhere to legal standards (such as the relevant health and safety legislation) you would be likely to succeed in a claim for damages made against them (although, as with any legal claim, that would be open to argument!!).
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Thank you for posting the case name, though I would say that the particular quote, IIRC, is slightly off the point as in that case, the notice was held effective to make the racing premises "reasonably safe" for a spectatorunder the Occupiers' Liability Act 1957, simply by pointing out the danger.
As an aside, do you think anyone would actually draft the waiver as widely as Teabelly's? Would actually phrasing it in that way actually make it less effective as it purports to exclude any liability, including that imposed by statute, rather than that which can validly be excluded (which arguably doesn't exist)?
To clarify my earlier post, it is possible to "exclude" liability for death or personal injury not cause by any breach of duty (negligence or statutory) of the contracting party - although it's hard to see how else any action could lie in the matter.
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>'As an aside, do you think anyone would actually draft the waiver as widely as Teabelly's? Would actually phrasing it in that way actually make it less effective as it purports to exclude any liability, including that imposed by statute, rather than that which can validly be excluded (which arguably doesn't exist)?'
I (sensibly!) don't propose even to open my mouth on this, in the presence of such august company, except to ask Teabelly please to post the exact disclaimer, so we can see how widely it is drafted. I sense that it may turn out to be drafted as David suggests.
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The exact wording of the disclaimer isn't in any of the bumf I have or does it appear anywhere obvious on the website so we'll have to wait until I have done it!
The bumf does advise having a light breakfast and avoiding a curry the night before....
teabelly
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The accompanying pack has mention of a default insurance scheme which does offer some cover for injury/death so perhaps the waiver is merely saying that the organisers aren't repsonible but the insurance company is?
I'll have to see what the actual full waiver says when I get there. The unfair contract terms is a good one to query them on.
teabelly
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Isn't volenti non fit injuria used to deny a claim resulting from something that the claimant has initiated or consented to? Thus the drunk pillion passenger of a motorbike driven by a drunk rider failed to get any damages off the rider('s insurance company) when he fell off. After all, he had been pointing out passers-by for the rider to aim at and had encouraged him to swerve from side to side.
Not my field, though.
Most of the waivers that I have been asked to sign disclaim liability from things that I may do and acknowldge that what I am doing may be dangerous; hence they establish my volens to the act.
I wouldn't sign one that disclaimed the organiser's negligence, as it would make me worry about them. I'd probably make a surreptitious adjustment to the form.
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I'm not sure you could unilaterally adjust the form without telling them - terms of contracts tend to have to be signed by both parties. Not my field but I don't think the organisers can legally disclaim their own liability, so I doubt it would make any difference.
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If I amend the waiver and they allow me to take part after having had the opportunity to inspect the amendment, then by their conduct I deem them to have accepted the change.
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So in what sense would it be 'surreptitious'? = clandestine/covert.
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As mentioned im pretty sure it waives your right to sue if you injure yourself, of your own accord; rather than if they are to blame.
For example if you messed up a corner at speed and broke yourself(or worse) then its your fault and you have no grounds to sue.
Whereas... if you crashed because a wheel fell off the car or similar, then they are to blame and you can claim.
hope that makes some sence!!
I stand to be corrected though...
Dave.
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I have to say I am a little suprised by this. Motor sport is dangerous and you could get killed. You know it but just to make the point they are telling you and saying "if you get crippled for life dont blame us." You have two choices, sign the waiver and have a good time, or dont sign it and dont go.
You can query your rights under any legislation you like, if you dont sign the waiver they wont let you do it. Its very simple.
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The trouble is (and I've had to sign waivers like this for various team building exercises) is that they attempt to absolve the organisers of any responsibility for death/injury however the death / injury is caused .
I have no problem accepting that if I do something stupid then I've no redress; but I don't see why I can't seek damages due to negligence by the organisers if they are to blame.
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If you had already bought a motorsport experience like this, but were unhappy with the imposed exclusion clauses, do you think this would be just grounds to say to them something like
"I don't accept your exclusion clauses, and, as such, I refuse to sign the disclaimer attached to them. Please give me a full refund!"
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Re "I don't accept your exclusion clauses, and, as such, I refuse to sign the disclaimer attached to them. Please give me a full refund!"
Yes you can.
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Lord Denning ! Been a long while since I've heard his name mentioned. One of my Law Lecturers was madly in love with him - apparantly they had meant once.
Anyway, as NCP managed to prove time and time again, disclaimers however written, phrased, signed or agreed to, do not permit you to avoid liability for your own negligence.
Such a disclaimer would enable them to avoid a claim resulting from purely participation in the sport but would be irrelevant if the loss was caused by their negligence.
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I may have overlooked a point already made, but no-one has yet pointed out that contract law cannot exclude criminal liability. Therefore, if said organiser is investigated by HSE (if necessary with the police), then potential breach of HSWA '74 would be examined. Proceedings might follow: but that is not in itself much direct use to your estate, as HSE is not required to take up matters of cib=vil liability. However, if the proceedings or the investigation material shows that the organiser has failed to take, (boring but important bit follows): "so far as is reasonably practicable", the necessary steps to safeguard persons outside his employment (competitors, spectators) to whom a duty is owed under S3, that info might allow a shot at establishing a failure to take common law duty of care. With the unfair contract terms material already referred to there might be enough to establish a liability. A roundabout route but therefore not impossible despite the wooden lie!
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I think the organisers have to have public liability insurance, but this will not cover you, if driving, coming a cropper. Neither will it cover another 'guest' driver damaging you.
The more you worry about it, the greater chance of it happening!.
I suspect if you won't sign the waiver, they won't let you take part.
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Been there and done it and I can't for the life of me remember the exact wording of the waiver but it was pretty much exactly what the letter said, ie all of one sentence!
The people running it seemed sensible and they said they had not had any injuries in all the time they had been doing it (over a decade). The stage was on an airfield and you could see all the cars on it at the same time. They made sure there was plenty of time between cars going onto the stage so you didn't have to worry about others catching you up.
teabelly
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