Consideration of wider implications  

When considering a claim in negligence and whether a person should have taken certain steps to avoid breaching their duty of care, the Compensation Act 2006 permits a Court to have regard to whether such steps might prevent a desirable activity from taking place or discourage people from taking part in that activity. The Social Action, Responsibility and Heroism Act 2015 permits a Court, when considering a claim of negligence or breach of statutory duty against a person, to have regard to whether that person was acting for the benefit of society, had demonstrated a predominantly responsible approach towards protecting the safety of others or was acting heroically by intervening in an emergency. The apparent intention behind these Acts is to encourage the Courts to consider the wider implications a finding of negligence may have. 

Disclaiming liability 

Custom and practice historically has been for organisers to include disclaimers of liability within notices or in their event paperwork. Disclaimers of liability are an attempt to excuse organisers from all or part of a liability that the law may otherwise place on them, such as the duty to take reasonable care in the organisation of an event. As far as disclaimers are concerned, successive pieces of legislation have eroded the ability to limit or disclaim liability, and in some circumstances, disclaimers can be unlawful. Our advice therefore is that you should avoid relying on disclaimers to keep you out of trouble. Disclaimers have never been a substitute for understanding potential legal liabilities, exercising reasonable care and having proper insurance arrangements in place. 

Managing risk 

The most effective means of avoiding liability is to ensure you meet your duty of care i.e. you have taken reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure those to whom you owe a duty of care. This does not mean that the probability of harm must be reduced to zero – the only sure way to eliminate all risks associated with an activity is to eliminate the activity. Instead, the activity should be organised so as to be as safe as necessary, rather than as safe as possible, with reasonable controls being implemented to reduce those risks that cannot reasonably be eliminated to a level that is justifiable and tolerable. 

Significant and unusual risks that have been identified through your Risk Assessments (see below) should be drawn to the attention of visitors and/or participants through the use of Risk Statements within your booking forms. These are a meaningful way of ensuring that your participants understand and acknowledge the inherent risks involved in the sport in an effort to narrow the scope of, and assist you to meet, your duty of care. 

At a practical level, the duty owed by an organiser to take reasonable care to ensure that an event is reasonably safely managed is likely to translate as a requirement to plan and deliver an event efficiently and with consideration for likely (i.e. reasonably foreseeable) eventualities and risks. 

The essential elements of managing risks are: 

• Identifythe hazards; 
• Consider who might be harmed, how they might be harmed and the severity of harm that may be

caused; 

• Evaluate the risks (in terms of both the probability of occurrence and the potential severity of harm)

arising from the hazards and decide if existing precautions are adequate or whether more should be 

done to reduce the risks to a tolerable level; 

• Record your findings; and
• Review the assessment from time to time and, if necessary, revise it.

Risk management and therefore risk assessment is likely to be a key ingredient in organisers being able to demonstrate that reasonable care has been taken. 

Risk assessment  

As a matter of good practice and to ensure that you have covered every aspect of the event, you should carry out a Risk Assessment. When doing so you need to take into account all of the activities that you wish to offer, both on and off the water, your facilities, such as toilets, changing rooms, showers etc. and any refreshments and entertainment you intend to provide should all be factored into the risk assessment. A template for a general Risk Assessment can be found at Appendix 3 in this pack (and can also be downloaded from www.rya.org.uk/go/ptboinfo). Use of standard forms as a starting point are helpful in enabling organisers to take a proportionate approach but they should not be treated as a one-size-fits all solution. 

You should take your time to work through every aspect of a Risk Assessment that takes into account your location, premises, personnel, participants and all activities and equipment on offer. It is important to recognise that Risk Assessment is a process rather than a document. The purpose of recording the process is so that the organiser can demonstrate that the process was undertaken and how its conclusions were reached. Risk Assessment is also an on-going process and needs to be more than simply a one-off paper exercise if it is to be helpful in demonstrating that reasonable care has been taken. 

Expect therefore to begin recording your Risk Assessment at the start of your planning for the Discover Sailing event and for it to evolve during the course of the weeks and days leading up to the event. Then, having written it down, make sure you follow it. 

 

You can find details on the RYA Guidance to Risk Assessments

Equality act 

The Act makes it unlawful for an organiser to treat disabled participants less favourably than other participants. The Act also requires an organiser to make “reasonable adjustments” to accommodate disabled participants, taking into account the circumstances specific to the event such as the nature of the venue, the nature of the organiser, the resources available to the organiser and the cost of any 35 adjustments. An organiser is, however, permitted to discriminate against a disabled participant to the extent that such discrimination is “a proportionate means of achieving a legitimate aim”. 

An organiser will therefore need to balance the desire of a disabled individual to participate in an event against the ability of the organiser to take reasonable steps to manage the safety of that individual and that of other participants.” Organisers should consider what activities they may be able to offer with a view to ensuring inclusion insofar as it is reasonably possible taking into account the safety of all concerned. It may well be that it is unsafe for the participant to take part in the activities on the day of the Discover Sailing but that a suitable alternative date is arranged when he/she is able to attend when the facilities are more able to accommodate the individual. 

An organiser can refuse to allow someone to participate provided such refusal is not based on a protected characteristic, e.g. you can refuse to accommodate someone that you believe is under the 

influence of drugs/alcohol. 

See the RYA webpages on Equality Inclusion and Diversity for more information. 

The following Accessibility Guidelines has been produced by RYA Sailability to help clubs and centres make their activities accessible to all. 

Advertising your event

To make the most of your Discover Sailing event people need to know about it, you will therefore wish to advertise it as widely as possible to ensure maximum exposure. There are plenty of ways you can do this, it’s easy and doesn’t have to cost a lot! Please see Part 3 of this guide “Promoting your event” It is not uncommon to see advertising for Discover Sailing events along the roadside or in other public places, however, organisers should be aware that there are regulations around advertising that must be complied with. 

The Town and Country Planning (Control of Advertisements) Regulations 2007 regulate the display of advertisements. Advertisements include: posters, notices, flag advertisements, captive balloon advertising, placards and boards and pole and canopy signs. There is Government Guidance on Outdoor Advertisements and Signs which explains the how the Regulations work. In order to help you understand whether you require the planning authority’s permission for your outdoor sign, the Guidance groups advertisements into three categories: 

• those which fall outside of a planning authority’s directcontrol; 
• those for which the rules provide “deemed consent”; and
• those for which a planning authority’s express consent is always required.

Regardless of where they fall within the above mentioned groups, all outdoor advertisements must comply with five “standard conditions”. They must: 

• be kept clean andtidy; 
• be kept in a safecondition; 
• have the permission of the owner of the site on which they aredisplayed; 
• not obscure or hinder the interpretation of, official road, rail,waterway or aircraft signs, or 

otherwise make hazardous the use of these types of transport; and 

• be removed carefully where so required by the planning authority.

The rules enable 14 classes of advertisement to be displayed by means of “deemed consent”, therefore not requiring the planning authority’s approval. The key classes of advertisements clubs need to be aware of are 3D and 7A but you should also be aware of 2B, 2C, 5, 6 and 15. The Highways Act 1980 makes it a criminal offence to attach a poster or other sign to a tree or structure on a highway without the consent of the highway authority where consent is required. We therefore recommend that you familiarise yourself with the rules before displaying advertisements for your Discover Sailing event. 

Welcoming participants on the day 

A registration desk dealing with the arrival of your participants is an important aspect of the event. It is here that your participants will first meet the ambassadors for your club/centre and get a feel for how welcoming it is. It is extremely important you ensure that participants are booked in. This will involve providing them with a booking form prior to or upon arrival at the venue. The booking form for an event or activity represents a contract between the organisers and the participants. In addition to collecting basic information on the participants which will be used by the organisers in running the event (e.g. name, , email, telephone number of participants and next of kin) the booking form should also set out the responsibilities of each party. 

It is important that they are given ample time to read the form and to raise any questions they may have. They should sign the form which should be kept by the organisers as a record of their attendance and acknowledgment of the risks involved. If an organiser is holding a particular event/activity to which the contract of admission is gained at the point of entrance, it should state that it forms the contract between the parties and highlight the fact that admission is on the basis of the terms printed on the document. In addition, the organiser should have copies of the relevant terms prominently displayed at the point at which the parties are to form their contract as well has having copies available to hand out to participants.

We have produced a generic booking form for a Discover Sailing event which can be found at 

Appendix 1 (and can be downloaded from www.rya.org.uk/go/ptboinfo), which also includes a risk statement. 

Parents/guardians must sign on behalf of children (i.e. under 18s) in order to confirm their consent for their children to participate. 

Liability for an event not taking place or a participant being excluded from an event also needs to be addressed. Accordingly, it is also recommended that cancellation terms are included for all events. Example cancellation terms are also included in the model booking form in Appendix 2. Again, before using these terms organisers are recommended to consider whether the suggested clauses are rightfor the event. 

Other clauses that might be needed for event booking terms such as data protection consent notices 

and a medical fitness declaration can also be found in Appendix 2. 

Medical information 

Organisers will need to decide on a case by case basis, depending on the nature of the activity taking place, whether or not it is appropriate to collect personal medical information from those participating in the activity. The decision relates to need: Do the organisers need to gather medical information relating to the participants? What action might the organisers reasonably be expected to take on the strength of the information in their possession? If the information serves no purpose it should not be collected. 

If the organisers do not intend to pass any medical information gathered to those who might need to act on it then there would seem to be little merit in gathering the information in the first place. Moreover, if there is no mechanism for ensuring that any medical information gathered by the organisers is passed on to those who might need to act on it then this might of itself give rise to a degree of liability and the organisers might thus find themselves in a worse position than they would have been in had they not gathered the information at all. 

If those participating in the activity are children and their parents are not present throughout the activity, then the organisers may well find themselves acting in loco parentis for the children and it may limit their ability to discharge their duty in this regard if they have not sought relevant medical information from the participants’ parents. 

Fitness to participate 

The questions of whether or not to collect medical information from participants and, if gathered, what to do with it need to be distinguished from the matter of determining whether a participant is fit to participate in the activity. For example, a person may have no medical complaints but nevertheless be unfit to participate through having consumed alcohol or drugs. Equally, a person may suffer from a condition that might have an impact on their treatment in the event of an emergency but that does not prevent them from being fit to participate in the activity. 

Determining fitness to participate should generally be the responsibility of the participant or, in the case of those under 18, their parent or guardian. It is suggested that risk statements should include an acknowledgement to this effect. Accordingly, the medical information questions in the Model Booking Form in Appendix 2 have been written in such a way as to provide a facility for participants to disclose information if they believe that it may affect their ability to take part. 

That said, an organiser may need to ensure that it has sufficient information to enable it to determine whether (and if so how) it can accommodate any special requirements participants may have, in accordance with the Equality Act 2010. 

An organiser should be cautious of drawing conclusions regarding fitness to participate from any medical information provided, as incorrect assumptions may result in liability, but a participant who declares they are fit but lists a number of medical issues may alert the organiser to the need for further discussions with the participant regarding fitness to participate. 

Medical information and data protection 

Medical information, if collected, will be classed as “special category data” under data protection legislation and should be treated accordingly. This means that it is necessary to have both a “lawful basis” for collecting that information (in the same way a lawful basis is required for collecting any other data), and in addition it will be necessary to satisfy one of the specific conditions set out in data protection legislation. The relevant specific condition is likely to be explicit consent, and appropriate wording should be included on the form to provide explicit consent. 

Special category data should not be retained for longer than necessary, and appropriate steps must be taken to protect the information.

Further guidance on data protection information

Insurance 

Before organising the event, organisers should check that their existing insurance policy covers all the activities it has planned for the event as well as all boats/kit and other equipment that it intends to use (whether club-owned or privately owned). If there is any doubt, the insurance broker should be contacted for clarification. 

Where organisers use members boats they should be insured temporarily under the organisers policy. 

This may be on an ad-hoc basis (for a single week/weekend) or, if the organisers are planning to hold regular open days during the year, it is possible to negotiate a blanket coverage on borrowed boats to a combined total value . 

When using members boats, organisers should never assume that the boat owner’s insurance will provide cover for the event. 

Organisers should ensure that any third party engaged to provide goods or services in connection with the event also carry appropriate insurance.

Commercial vessel regulations 

The law surrounding the commercial use of boats for sport or pleasure is far from straightforward and was certainly not designed to accommodate the use of boats for activities such as Discover Sailing. 

In essence, it is almost impossible for most dinghies and small powerboats to comply with the commercial vessel regulations so a club or private owner must avoid the use of their boat for a Discover Sailing event being “commercial”. 

In very simplistic terms, if a boat is owned by or on behalf of a club then provided that the boat is used for the sport or pleasure of a club member (or a member of their family) – i.e. a club member (or their family member) is on board – then they can have a reasonable number of non-member crew on board without the boat’s use being regarded as “commercial”. 

This should cover most dinghy-based Discover Sailing events using club boats. Clubs should not allow participants to try club-owned boats on their own (i.e. without a club member with them) as this could well take them into the scope of “commercial” operation. 

For privately-owned boats used in a Discover Sailing event, provided that the boat is used for the sport or pleasure of the owner (or their friends or a member of their family) – i.e. the owner (or friend or family member) is on board – then they can have a reasonable number of non-member crew on board without the boat’s use being regarded as “commercial”. 

Privately-owned boats cannot be lent to participants in a Discover Sailing event to sail on their own. 

Regardless of whether the boat is club- or privately- owned, there are only very limited circumstances in which the owner (or, in fact, anyone else) may receive any sort of payment (whether or not from the crew) in relation to the use of the boat so it would be better for participants not to be asked for any money at all. 

For centres (regardless of whether they are clubs, local authority activity centres or commercial enterprises), the RYA has negotiated with the UK Maritime & Coastguard Agency a deemed equivalency to the relevant commercial vessel regulations for small boats operated by centres in accordance with the RYA’s Conditions of Recognition. This means that boats operated by centres in accordance with the RYA’s Conditions of Recognition (other than for Advanced Powerboating or the Cruising Schemes) are deemed certificated for commercial use, so the restrictions on who must be on board and payment applicable to club- and privately-owned boats do not apply. 

Cruising yachts operated by centres for Discover Sailing events will normally need to be individually certificated for commercial use. 

The law explained 

Duty of Care - The basic legal principles: 

There are a number of circumstances in which an organiser might owe a duty of care to participants and/or visitors and be held legally liable for an injury/property damage suffered by a participant/visitor in the event that that duty is breached. These include: 

• Occupiers Liability Act 1957 (if the organiser is the occupier of the premises where the event is taking place). 

• Negligence; this is a breach of a more general duty not to cause injury or loss carelessly.

Occupiers Liability Act: 

Under the Occupiers Liability Act 1957 the occupier of premises has a duty of care towards visitors using the premises for the purpose for which the visitor is invited or permitted to be there i.e. all lawful visitors. 

Thus organisers owe a duty to those visitors invited to the Discover Sailing event. 

The duty is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he/she is invited or permitted to be there, whether in the club house, boat park or at the water’s edge. 

Negligence: 

Where individuals participate in an organised activity, particularly where those participants are young, vulnerable and/or inexperienced, an organiser is likely to be under a duty to manage those activities reasonably safely. 

The basic principles of the law of negligence were encapsulated in the famous case of Donoghue v Stevenson (1932). In describing the general duty of care, Lord Atkin said: 

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” 

Negligence can be summarised as a duty not to inflict damage carelessly but it does not impose a general duty on everyone to act carefully towards everyone else. 

What is ‘Reasonable’? 

What constitutes “reasonable” will depend on context. In the case of a boating event the context is particularly significant. Recreational boating is by its very nature an unpredictable sport and therefore inherently involves elements of risk. This inherent risk in our sport influences what is considered to be “reasonable”. 

Factors that may be taken into account when determining “reasonableness” in relation to the context of a duty of care owned by an organiser may include: the size of the organiser, its location, how it is run and by whom (e.g. staff / volunteers), types of activities and, importantly, the age and experience of the participants. 

Organisers should be aware that a higher standard of care applies when dealing with children, young people, vulnerable adults and novices. Organisers will normally be expected to deliver a higher standard of care towards children than adults, the defences which can be raised in a legal claim will be harder to prove and any acceptance of risk form signed for on behalf of a child is unlikely to be effective in avoiding liability. 

In practical terms this means that the event should be carefully planned. Competent volunteers should be available and carefully briefed for each of their tasks. Premises, boats and all equipment should be well maintained and inspected for defects. Equipment deemed unsuitable for the event should be locked away in order to ensure it cannot be inadvertently used. 

Causation and no-fault accidents: 

The fact that a participant suffers an injury, accident or loss does not of itself mean that liability automatically falls on the organiser. It is not sufficient for a claimant merely to show that they have suffered damage in order to claim compensation. The questions that would need to be answered include: “Did the organiser fall short of what was reasonably expected of them?” and “Did this falling short cause the damage complained of?” 

There are still such things as accidents that are not caused by the failure of anyone else to take reasonable care. For example, if a visitor sustains an injury at your Discover Sailing event on the basis they simply lost their footing on an uneven surface as they were walking around the site, the organiser is unlikely to be found liable for any resulting injuries. The outcome is likely to be different if a visitor suffers an injury on a pontoon that the organiser knew was usually slippery but had taken no action to warn of the danger, close off access to it, or attempt to clean it. 

Acceptance of risk and warnings: 

Organisers are expected to take steps to minimise the risks associated with an event where reasonably practicable. This duty does not appear from case law to extend to alerting participants to risks which are plain and obvious. Visitors and participants are taken to have accepted such risks and do not need warning of them. The question will be whether or not a particular risk is one which, in the circumstances, they should be taken to have accepted. 

Because the participants at a Discover Sailing event are likely to be novices the organiser will undoubtedly have a greater responsibility to warn the participants of risks which might be plain and obvious to a seasoned sailor but would not be obvious to a novice. However, organisers are not expected to warn participants, even novices, of everyday (non-sailing specific) risks such as steps leading up to the clubhouse. 

The dangers of organising an event at a particular venue may be distinguished from the dangers of the sport itself. A participant at a PTBO event might reasonably assume that the organiser has ensured that the venue is reasonably safe even if he is taken to have accepted the inherent risks associated with the sport. 

Disclaimers - do they work? 

Disclaimers of liability are an attempt to excuse organisers from all or part of a liability that the law may otherwise place on them, such as a duty to take reasonable care in the organisation of an event. Historically organisers have included disclaimers of liability using notices or contractual clauses in their event paperwork. However, disclaimers can be challenged on various grounds. Some of the grounds for challenge will depend on whether the nature of the relationship between the organiser and the participants in an event is properly construed as a trader-consumer relationship or a consumer relationship. The law on trader-consumer contracts was consolidated by the Consumer Rights Act 2015. 

In both trader-consumer and consumer-consumer situations: 

• it may be possible to argue that a disclaimer has not been properly incorporated into a contract between the organiser and the participant or otherwise brought to the participant’s attention and is therefore, not effective. 

• a disclaimer will usually be interpreted by the Courts against the interests of the party wishing to relyon it and it cannot normally be enforced against a minor (i.e. a person under 18 years of age). 

In addition, in trader–consumer situations. 

• a disclaimer thatattempts to exclude or limit liability for death or personal injury caused by one party’s negligence will be unenforceable as a so called “blacklisted” term under the Consumer Rights Act 2015; 

• a disclaimer thatattempts to exclude or limit liability for other damage caused by one party’s negligence will be subject to a “fairness” test under the Consumer Rights Act 2015; 

• a disclaimer that fails the general fairness test and/or transparency test under the Consumer Rights Act 2015 will not be legally enforceable against the consumer; 

• a disclaimer whichattempts to exclude or limit the legal rights of the consumer for non-performance or inadequate performance of contractual obligations will fall within the so called “grey list” under the Consumer Rights Act 2015 (i.e. the illustrative list given in this Act of terms that are under suspicion of unfairness but not necessarily unfair). Such contractual obligations include a duty 

implied into trader-consumer contracts by the Consumer Rights Act 2015 to provide services with reasonable skill and care; 

• the Competition & Markets Authority (CMA) hasindicated in its Unfair Contract Terms Guidance (issued in July 2015) that a disclaimer which is written so broadly as to have the effect of excluding or limiting liability for death or personal injury caused by negligence in the course of a business, even if qualified by an expression such as “so far as the law permits”, is liable to be construed as misleading and may give rise to criminal prosecution as an unfair, misleading or aggressive commercial practice under the Consumer Protection from Unfair Trading Regulations 2008. A number of these issues are discussed below. 

Incorporation or notification of disclaimers: 

In order for a participant to be bound by a disclaimer included in event terms and conditions it must be incorporated into the agreement between the parties. If a participant signs a contract with the organiser or otherwise indicates acceptance of terms and conditions (such as via a website tick-box) the presumption is that the participant will be bound by the terms even if they have not read them. If the disclaimer is set out or referred to in a document which is simply handed to the participant or displayed at the point where they agree to take part in the activity then the organiser would have to show that the disclaimer was brought to the attention of the participant before or at the time they agreed to take part. If the disclaimer is not communicated to the participant until after they have agreed to take part then it will be of no effect irrespective of whether it stands or falls by reference to the other arguments that may be available to challenge the validity of a disclaimer. 

The relationship between the organiser and participants at an event 

From the legislation referred to above it is apparent that the question of whether an event organiser is acting for purposes related to a business or trade in relation to the participants in an event is very relevant to whether any disclaimers used will be enforceable or perhaps even criminal (see below). If an organiser is an unincorporated association, then in respect of any arrangements that include non-members, such as events open to non-members where an entry fee is charged, it is likely to be acting as a business. If so, the event terms and conditions may be subject to challenge under the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008 will be applicable. 

If an organiser is incorporated then, in respect of any contracts with third parties (e.g. events open to non-members), it is likely to be acting as a business so as to engage the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008. 

When considering the issue of whether or not it is acting as a business, an organiser will have to consider the particular activity and be aware that a one-off event involving third parties is likely to be a business transaction even if the organiser itself is an unincorporated association which is not a business. 

The fairness test 

The Consumer Rights Act 2015 introduced a test of fairness to contract terms used by traders in transactions with consumers. 

The CMA has given guidance on its approach to interpreting the elements that make up the fairness test and specifically addresses inherently risky activity. As a possible route to “fairness” the CMA advocates the use of prominent warnings against hazards, which provide information and make it clear that the consumer needs to take sensible precautions, but which do not have the effect of excluding or restricting liability. The CMA does not consider it fair to seek to deprive consumers of compensation in any circumstances in which they would normally be entitled to it by law and the CMA does not approve of the use of disclaimers. 

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 was reduced further by the Unfair Terms in Consumer Contracts Regulations 1999 (which have now been absorbed into the Consumer Rights Act 2015) and the Consumer Protection from 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 were considered to be a “business” then an unfair disclaimer was simply unenforceable. However, while there is currently 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. The CMA has endorsed this viewpoint in its Unfair Contract Terms Guidance issued in July 2015 and advocates the use of prominent warnings against hazards for inherently risky activities. 

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”. 

A sample Risk Statement is set out in Appendix 2. Organisers looking for a suitable form of wording for their own purposes should adapt the appropriate paragraphs to suit their own particular circumstances, for example by making reference in the Risk Statement to any risks that are specific to the venue for the event or the event itself. 

The most effective means of avoiding liability therefore is to ensue you meet your duty of care i.e. you have taken reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure those who whom you owe a duty of care. This does not mean that the probability of harm must be reduced to zero – the only sure way to eliminate all risks associated with an activity is to eliminate the activity. Instead, the activity should be organised so as to be as safe as necessary, rather than as safe as possible, with reasonable controls being implemented to reduce the risk to a level that is justifiable and tolerable – in other words, the risk should be reduced to a level that is “as low as reasonably practicable”. 

Liability of organisers and of individuals 

The extent to which the organiser might be held liable for the negligent actions of the individuals delivering an activity on its behalf will depend to a certain extent on the legal nature of the organiser. 

Unincorporated Associations: 

Many organisers are unincorporated associations, which mean that they have no separate legal identity. 

They are, in effect, simply a name attributed to a particular group of individuals. An unincorporated association cannot sue, or be sued, in its own name. Claims against unincorporated associations are normally directed instead at named individuals, either in their personal capacity or as representatives for the members of the association. Committee members do not normally owe members of the association a duty of care purely by virtue of being committee members. However, committee members are not granted immunity from liability where a duty of care might otherwise arise (e.g. the person who maintains the patrol boats may be under a duty to ensure that the boats are reasonably safe to use). 

Individual members of an unincorporated association do not owe other members a duty of care simply by virtue of being fellow members of the association, although members are not granted immunity from liability to other members where a duty of care might otherwise arise (e.g. between competitors in a race). 

The members of an unincorporated association might, however, collectively owe a duty of care towards non-member visitors or guests, for example in connection with the physical condition of the association’s premises. 

In addition, although the members of an unincorporated club would not normally be held liable for the negligent actions of individual club members, the club members might collectively be held vicariously liable (i.e. without any personal fault on their part) for the negligent actions of individual members to whom they have delegated responsibility for managing the club’s activities, for example the committee. 

If the collective liability of the members exceeds the amount of the assets of the association, then individual members may each be personally liable for any legal liability for damages that the association may incur. It is therefore vital that an unincorporated association has appropriate insurance to cover its activities. 

Incorporated Associations: 

If the organiser is incorporated as a limited company, whether limited by shares or by guarantee, it has its own legal identity and can sue and be sued in its own name. In addition, one of the key features of incorporation is that the liability of the individual shareholders or members for the liabilities of the company is limited to the amount of their respective shareholding or guarantee. 

However, incorporation does not protect individuals from claims that they personally owed a duty of care and were in breach of that duty. 

In addition, the directors of a company are subject to statutory duties under the Companies Acts that do not apply to the committee members of an unincorporated association. Appropriate insurance is therefore, equally important for a company as it is for an unincorporated association. 

Prevention of a desirable activity 

There is some comfort for organisers. When considering a claim in negligence and whether a person should have taken certain steps to avoid breaching their duty of care, the Compensation Act 2006 permits a Court to have regard to whether such steps might prevent a desirable activity from taking place or discourage people from taking part in that activity. 

The Social Action, Responsibility and Heroism Act 2015 permits a Court, when considering a claim of negligence or breach of statutory duty against a person, to have regard to whether that person was acting for the benefit of society, had demonstrated a predominantly responsible approach towards protecting the safety of others or was acting heroically by intervening in an emergency. 

The apparent intention behind these Acts is to encourage the Courts to consider the wider implications a finding of negligence may have. However, case law suggests that these Acts have so far had little practical impact. 

The equality act 2010 

The Equality Act 2010 applies to all organisations that provide a service to the public or a section of the public and to anyone that sells goods or provides facilities (‘Service Providers’). Therefore clubs that provide RYA training or other services to members of the public may be considered to be Service Providers, as will most commercial RTCs. 

The Act also applies to private members’ clubs insofar as they fall within the definition of an Association. 

Associations are bodies: 

• with 25 or more members; and
• that have rules regulating who can become members (though not necessarily formal or written); and
• that have a process ofselection to become a member. 

An Association / Service Provider is prohibited from discriminating, harassing or victimising a member, an associate member, prospective member or guest, and a recipient of the service due to a protected characteristic. 

The characteristics that are protected by the Act are: 

• Age;
• Disability;
• Genderreassignment; 
• Marriage and civilpartnership; 
• Pregnancy andmaternity; 
• Race (including ethnic origin, national origin, colour, nationality);
• Religion orbelief; 
• Sex;
• Sexual orientation.

To come within the scope of the Act and be actionable discrimination must be on the basis of one of the protected characteristics. 

Disability and the Duty to make Reasonable Adjustments: 

You may well have any number of disabled people attending your PTBO event and it is therefore worthwhile considering disability discrimination and your duty to make reasonable adjustments. 

Organisers are under a duty to make reasonable adjustments in order to ensure their services are available to disabled persons. They have a duty to make ‘reasonable’ adjustments to the physical features of premises in order to ensure that there are no physical barriers to their services. 

The duty to make reasonable adjustments comprises three requirements: 

1. Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter (i.e. access to benefit, facility or service) in comparison with persons who are not disabled an organiser is required to take such steps as is reasonable to avoid the disadvantage. 

1. Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter (i.e. access to a benefit, facility or service) in comparison with persons who are not disabled, an organiser is required to take such steps as is reasonable to avoid the disadvantage or adopt a reasonable alternative method of affording access to the benefit, facility or service. 

1. Where a disabled person would, but for the provision of an auxiliary aid, be at asubstantial disadvantage in relation to a relevant matter (i.e. access to benefit, facility or service) in comparison with persons who are not disabled an organiser is required to take such steps as is reasonable to have to take to provide the auxiliary aid. 

What is ‘Reasonable’? 

The obligation to do what is termed ‘reasonable’ is the real crux for organisers. You will need to plan ahead for disabled users, consider the likelihood of persons with disabilities wanting to take part in your event. What is ‘reasonable’ will depend on a number of issues including the size of the organisation, its financial resources, the cost of the adjustment and the particular circumstances of the case. Generally speaking, depending upon size and financial resources, organisers will not be expected to make adjustments that are disproportionately expensive. Organisers are not required to take steps which would fundamentally alter the nature of the benefit, facility or service concerned, or the nature of the organisation. 

There are justifications for not making reasonable adjustments, namely: 

• Less favourable treatment of a disabled person is necessary to avoid endangering the health or safety of the disabled person or any other person 

• The disabled person is incapable of entering into an enforceable agreement or giving informed consent. 

• The treatment of the disabled person is necessary to be able to afford members, associates, guests or the disabled person access to a benefit, facility or service. 

• The association would otherwise be unable to afford members, associates or guests access to a benefit, facility or service. 

• Cost to the organiser of affording a disabled person access is disproportionate to the cost of affording such a benefit to a non-disabled person. 

The third and fourth of the above justifications will allow an organiser NOT to make reasonable adjustments where to do so would jeopardise the organiser’s ability to provide its services to its other participants or to the disabled person themselves. 

The organiser may be able to charge the disabled person more for the services it provides where the cost of affording the disabled person access to a benefit, facility or service is greater than it is for nondisabled people, so long as the services provided were ‘bespoke’ to the disabled person. However, it is not possible for an organiser to charge a disabled person more where the service in question is provided to all participants, in such circumstances, the cost must be shared across all the participants. 

Further guidance on the Equality Act. 

For more information on Equality, Diversity and Inclusion.