While organisers must take steps to mitigate the risks to those taking part in events, there is a balance to be struck, found a recent court case.
In recent years the “experience economy (opens a new window)” – valuing moments over physical goods and possessions – has grown steadily. Adrenaline-based, physical challenges are of growing popularity, with more amateurs getting involved for personal thrill, charity and corporate initiative. This coincides with high levels of litigation.
The risk mitigation material given to the claimant proved to be pivotal to the ruling.
Organisers of sports events are acutely aware of their responsibility to ensure that participants understand potential hazards, and to put in place safety measures and adequate warnings.
Their duty of care is a constant focus. But where does it end?
A recent court case judgement clarified this issue, and also the extent to which participants accept the risk of injury.
What happened
The case (Philip Clarke v John Kerwin) centred on a two-day motorcycle rally through a forest in Northumberland. The claimant was injured when he fell into a ditch while attempting to overtake another rider, at speed, on a bend in the course.
The claimant – who had, on registering for the event, been given a booklet about speed limits for the course and general warnings about the need to be on the lookout for hazards – alleged that the event organiser was in breach of the Management of Health and Safety at Work Regulations 1999 (opens a new window).
The claimant said the event organiser had failed to conduct a proper inspection or risk assessment of the course and that hazards were not adequately signed. The defendant argued that the claimant had voluntarily accepted the risks inherent in taking part in the event. The defendant added that the claimant had been driving too fast for the conditions and had lost control of his bike.
The claim was dismissed. The judge concluded that the claimant had lost control of his bike because he was attempting to overtake at excessive speed round a bend, and that he should have been aware of the risks if he had read the booklet given to him by the organisers. The risk mitigation material given to the claimant by the defendant proved to be pivotal to the ruling.
The judge found that while organisers must take steps to mitigate the risks to those taking part in events, there is a balance to be struck. Duty of care, the judge decided, must be reasonable and participants must also be aware of the risks they are accepting and take reasonable steps to ensure their own safety.
Recommendations
All relevant documentation should be retained in case a claim is pursued.
While event organisers will already be highly aware of the importance of risk management, it can be worth noting some of the following measures and considerations:
• Risk awareness and acknowledgement documents are crucial to verifying that participants have been clearly made aware of the risks and accepted them. In most instances, disclaimers and waivers should be avoided and will tend to fall foul of the Unfair Contract Terms Act 1977 (opens a new window) (eg, where attempting to remove liability for any bodily injuries).
• Written safety guidance and/or verbal briefings should be used to emphasise risks and precautions. Attendance of briefings should be mandatory and, where practicable, written confirmation should be obtained that the guidance has been fully understood. Content should be concise and pragmatic – if it is too onerous then it is unlikely to be remembered.
• Where significant incidents have occurred during a sporting event, all relevant documentation – photos, CCTV, social media and witness details – should be retained in case a claim is pursued. Normally, claims may arise up to three years after the date of incident (or three years after the claimant turns 18).
• Video footage or photographic evidence in support of risk assessments is likely to assist in evidencing the nature of the event, and showing that all reasonable steps were taken by organisers to reduce the risks to participants.
• There is normally extensive best-practice guidance (and legislation) available for different types of event. This may be provided by sports governing bodies, trade associations and enforcement authorities. These will be referenced during litigation, so organisers should naturally ensure they are familiar with these, and that they considered them as part of their risk assessment and event-organisation process.