Page 30 - Misconduct a Reference for Race Officials

The main provision of the Act may be summarised as follows:
 A business cannot, whether by a term in a contract or a public notice,
exclude or restrict its liability for death or personal injury caused by its
negligence;
 A business can only exclude or restrict its liability for any other damage
(i.e. property damage) caused by its negligence in so far as the exclusion
or restriction of liability is reasonable in all the circumstances;
 The Act contains no useful definition of the term ‘business’; ultimately
whether an organiser is conducting a business in any given circumstance
will be a question of fact. There is no single determining factor that can be
identified. Whether an organiser is or is not a business, or whether a
particular event is or is not a business activity will depend on the
circumstances of each case.

Unfair Terms in Consumer Contracts Regulations 1999
The 1999 Regulations apply to all contractual terms including exclusion clauses
which have not been individually negotiated (i.e. standard terms and conditions
such as a Notice of Race/membership application). They do not apply to non-
contractual notices. They are limited in their application to individuals as
consumers.

The Regulations apply to any type of term that could potentially be unfair
provided that the term is not individually negotiated and is contained in a
consumer contract. Unfair terms will be ineffective. A term will be unfair if,
contrary to the requirement of good faith, it causes a significant imbalance in the
parties’ rights and obligations arising under the contract.

The Office of Fair Trading (‘OFT’) has issued guidance on these Regulations and
has made it clear that, in the case of inherently risky activities, it favours the use
of warnings that have the effect of providing information about the inherent risks
without seeking to exclude or restrict liability for them.

Consumer Protection from Unfair Trading Regulations 2008
The Regulations impose a general prohibition on unfair, misleading and
aggressive commercial practices.

The Regulations prohibit practices which:

 are contrary to the requirements of professional diligence; and
 materially distort or are likely to materially distort the economic behaviour
of the average consumer.

28