Avoiding exclusion of liability for personal injury
It is common for contracts for the provision of services to contain a clause purporting to exclude liability for personal injury. Anyone who has signed such a contract and who then suffers an injury caused by negligence may assume that they are unable to claim compensation. However, this is not correct as a recent case of mine illustrates.
PX, a man in his 40s, was a keen footballer who got together with his friends once a week of an evening after work to get some exercise by playing 5-aside football. For this purpose, they hired a school sports hall from a property management agency.
It was PX who arranged hire of the hall for the group of friends. When making the first booking he signed a document excluding the hirer from any liability for injuries sustained as a result of the use of the hall. Understandably, he thought this meant that the school or the hirer could not be held responsible for any football related injuries caused by his football enthusiastic friends to one another.
One evening PX himself was playing and during the game he ran along very close to the back wall of the hall. He was tackled by an opponent and briefly fell on to the wall but carried on running.
Within a few seconds PX realised that he had a very deep cut running along the length of his forearm with blood dripping down onto the floor. His friends rushed to his aid and soon realised that he had caught his arm on a nail sticking out of the wall. On further inspection by his friends (who took lots of video footage on their mobile phones), many similar nails were sticking out along the wall.
PX was ‘stretchered off the pitch’ by his friends and whisked to A&E. He required many stitches and now has a lengthy permanent scar along his forearm.
Shortly after PX came to me I sent a letter of claim to the agency which PX had had his dealings with. Their insurers carried out liability investigations only to return several months later with a denial of liability based on the form that PX had signed when he made the original booking. Amongst other clauses on the form was one stating that those leasing the premises accept liability for the maintenance and repairs of the premises.
I swiftly replied to the insurers that it was preposterous to imply that a group of men hiring a sports hall for a few hours once a week should be expected to carry out maintenance or repairs to the fabric of the premises (in this case the walls of the sports hall). I also pointed out to them that section 2 of the Unfair Contract Terms Act 1977 expressly states that it is forbidden to exclude liability for death and personal injury resulting from negligence. The insurers admitted liability very shortly after receiving this letter.
There are many situations in day to day life where organisations require people to sign ‘exclusion clauses’. The Unfair Contract Terms Act protects us from those unfair clauses when an injury occurs as a result of another party’s negligence.
As I explained to my client at the time, if he had been making a bungee jump and the rope was defective (or not tied at the top!), then liability for the injury he would have suffered as a result of someone else’s negligence could in no way be avoided by him signing any disclaimer to the effect that he was responsible for any injury he suffered as a result of undertaking that dangerous activity.
The off-side rule however remains a mystery to me.