Page 32 - Misconduct a Reference for Race Officials

the organiser itself is an unincorporated association which is not a business.
In addition, the general law provides that disclaimers are usually interpreted by
the Courts against the interests of the party wishing to rely on them and they
cannot normally be enforced against minors (i.e. those under 18).

Summary
For the reasons outlined above, disclaimers have been ineffective for commercial
organisations and of doubtful effectiveness for clubs ever since the enactment of
the Unfair Contract Terms Act 1977. The effectiveness of disclaimers has been
reduced further by the Unfair Terms in Consumer Contracts Regulations 1999
and the Unfair Trading Regulations 2008. In any event, disclaimers have never
been a substitute for organisers understanding their potential legal liabilities,
exercising reasonable care and having proper insurance arrangements in place.

Previously, if an organiser was considered to be a “business” for the purposes of
the 1977 and 1999 Regulations then an unfair disclaimer was simply
unenforceable. However, while there is no direct judicial authority on the point,
the case of OFT v. Purely Creative Limited (2011) has suggested that there
may be circumstances in which the Courts might be inclined to view the use of an
unenforceable disclaimer as being not just unenforceable but also unlawful under
the 2008 Regulations.

Although the risk of a private members’ club infringing the 2008 Regulations is
slight, it nevertheless remains a possibility. As a consequence, organisers are
encouraged to move their emphasis away from the use of disclaimers towards
warning participants and asking them to acknowledge the risks associated with
taking part in the activity – i.e. by using “Risk Statements”.

Sample Risk Statements are set out in Appendices 2 and 3. The various clauses
set out in these Appendices are designed to cover a wide variety of different
events and organisers and race officials looking for a suitable form of wording for
their own purposes should be able to adapt the appropriate paragraphs to suit
their own particular circumstances.

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