I have seen a fair few of these forms, many of which are ripped off US based providers and have a purported ‘disclaimer’ which uses very US-style language which talks about how ‘holding indemnified and non liable the provider’. It makes lawyers on our sceptred Isle cringe.
There is no escape
No provider of services can escape liability for harm caused by their negligence based on a contract. Therefore an American imported phrase is of zero assistance to the provider.
Were I running track days, a wheelie school or any other modestly risky activity I would lose these US Imported phrases as a tough judge can rule the whole contract invalid for unlawfulness.
In the event of an ‘off’ on a trackday you as the injured motorcyclist have to do rather more than show vou were hurt. Most providers of training for hazardous activities, be it rock climbing or tearing around a race track, will have a ‘volenti’ clause built into the paperwork you sign.
In short, it will say: ‘you accept the inherent risks of [activity x] and understand things can and do go wrong which are beyond the control of the organiser and you accept the risks’. And if that risk comes to pass a Judge is not going to be very impressed by a claim such as: ‘yes, I knew what I was doing could go wrong, and if it did go wrong I might get hurt and I ballsed up my third corner and finished up in the kitty litter so can I have some money please.’ Travel this path and expect the door to catch your backside on the way out, with aside order of judicial flea in your ear.
The Courts have become a lot firmer in the time I have been in practice with people who have largely hurt themselves, it is self evident that a trackday has inherent risks. The fact you are wearing a CRASH helmet is a big clue that a crash was in your contemplation. Likewise a spinal protector and an abrasion resistant armoured leather suit are all pretty good indicators you knew there were risks.
Trackday providers, facing even a hopeless claim, get their insurance loaded so they are careful. Many will video the participants at the pre ride briefing where they will give you the safety information that you may, ahem, forget in the red mist of a race track opening out in front of you.
In order to run a claim against a trackday provider you will have to show negligence ie falling below the standards of the reasonably prudent provider – the Courts will take a lot of evidence into account as to what is reasonable.
To use an off-road example; if you were to put a complete novice onto a fire breathing two-stroke 500CC full-on crosser, that would be negligent.
Building a novice up with a docile 125 would not be negligent, even if that novice had a moment of panic and rode into a ditch. If your track bike, supplied by the school, seized up or its brakes failed you’d have a case but if you crash your bike, on your own, under your own steam, the usual answer from the law is, ‘suck it up, buttercup’. But, maybe, more delicately put.
Bike Magazine October 2021