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One day an event organiser will find themselves explaining to a judge why they didn’t think it was a reasonable precaution to set mandatory rest periods.
Volenti defence – accepted the risks
I worded my sentence carefully:
- I didn't say it would be the rider making the claim:
* if he crashes into a car and dies I think the driver may have a claim, not just for the physical damage but the mental trauma.
* if he hits another rider or pedestrian they may see a better route to a claim from the organiser than the competitor
* of course the rider might be most at risk of serious life changing injury and so have the greatest incentive to claim - even if you were shown to be contributory negligent, the organiser's share might be millions!
- Volenti non fit injuria is difficult to establish:
* Need to show fully aware of the risk - ordinary people probably would expect its not possible to fall asleep riding and would be surprised you can get so tired you hallucinate (which have heard someone say who did Trans Iberia); so unless those organisers are explicitly highlighting the risk....
* Need to show they voluntarily consented. Would be some good legal debate on whether entering a competition where you have no ability to set / influence the rules is freely consenting.
* probably another interesting point about whether consent was ongoing and could be relied upon for someone experiencing exhaustion; once they've reached the point of no longer properly being able to control a bike or hallucinating - are they competent to decide if they need rest?
- I didn't say which country the judge would be in - there's probably similar concepts outside common law jurisdictions - but that's going to be jurisdiction specific. Even in the US which is closer to our legal system than many they have different rules about presumption of risk - and of course if you are going to get sued anywhere its quite likely there!
- just because you might have a defence doesn't mean you wont find yourself explaining to a judge; you might even be lucky and the judge agrees with you, it still doesn't mean you won't have had a lot of stress, hassle, cost etc.
Most events have liability waivers for all loss apart from anything arising from organiser negligence and the risks involved are described in general but not exhaustive, something about 'can be reasonably forseen'.
But you're right, a robust contract still doesn't mean you won't have the stress of defending it or mean you can get insurance cover in the first place. Big Q may be what organiser negligence could be, outside of the obvious like poor routing. I think that's why trackers and rider monitoring is more common now.
Where do you draw the line, though?
A core part of ultra cycling races is about preparation. A lot of the race happens before the race.
Should organisers have to warn and mitigate for every eventuality?
I saw one memorable interview with someone wolho had had to scratch from a race, and felt passionately that the organisers should have forewarned them about the possibility of Shermer's Neck, because they'd never heard of it before and had no idea what was happening to them. And well... I kinda feel that if they'd read any ultra cycling blog ever, they'd at least be a little bit aware of it.
Most events have liability waivers for all loss
Signing away rights is a tricky issue especially when it comes to a third party.
I think it would be particularly problematic given that one problem with sleep deprivation is decreased ability to make decisions.
Look at what has been happening around concussion in football and rugby where as the risks become increasingly apparent the rules are being changed to remove the choice from the player.
On a slight tangent, I read someone saying (might even have been Michael Broadwith) that the women’s LEJoG is harder than the men’s, as the men’s is effectively one night without sleep vs two.
You can’t sign a waiver that removes some one’s duty of care to prevent death and injury.
This was top on Google when I checked that I hadn’t invented that.
How that applies here is obviously a huge leap.
Signing away rights is a tricky issue especially when it comes to a third party.
The third party sues whoever was negligent.
An organiser sets a route. A rider rides it. My view (long time since I was a claims manager) is that the rider chooses how they appeoach the route and how they ride it, and is responsible if they crash into a third party, whether through tiredness or "red mist", same as it would on a time trial.
I did 3 days in the Lakes last summer with a group of mates doing a big loop, staying in hotels both nights. I don't seem to recall any one us labelling it bike packing.
You can’t sign a waiver that removes some one’s duty of care to prevent death and injury.
That's as I understood it, you can't ask someone to waiver Thier right to claim for organiser negligence and duty of care comes under (or is same as?) not being negligent. But oc ianal etc, I'm also going ot.