ian.p said:
could we at least know the source of the legal advice and the legal qualifications they hold?
First read the first page of
https://ukcaving.com/board/index.php?topic=22192.msg280847#msg280847 down to and including my post.
The following two parts were emails sent by me when I was BCA L&I Officer and which I understand were used by CCC Ltd.
Part 1 provides background:
As promised, health warning ? I am not legally qualified and therefore I recommend that if you are in doubt, you should consult with a solicitor.
Re whether BCA?s policy covers under 18s ? the answer is yes, see Q92 in
http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=legal_insurance:bca_insurance_faq_2016_v2.pdf .
I mentioned several acts in our chat. The first significant act is Section 2 of the Occupiers Liability Act of 1957 places a ?duty of common care? on the occupier for all visitors. That duty is to ?...take such care as ... is reasonable to see that the visitor will be reasonably safe...? Section 2 of the act does permit the occupier to ?...restrict, modify or exclude his duty ... by agreement...? Section 2 of the act also provides two significant defences in that ?...The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor...? and also ?...an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so....?, the so called ?specialist visitor? defence. But Section 2 of the 1957 act does require that the occupier ?...must be prepared for children to be less careful than adults...?.
There is also the civil law duty of care. This tort has two features of significance: that the harm arising was reasonably foreseeable and that the behaviour fell below the threshold of a "reasonable man?. There is another feature in that the claim should be fair, just and reasonable. Thus in a case where the harm befell a person because of a third person?s action or lack of action, the defendant could well be the third person rather than the person who gave permission. This duty of care may be countered by the common law principle with the latin tag ?volenti non fit injuria?, usually translated as ?an injured person willingly accepted the risks?.
The Tomlinson case, see
http://www.e-lawresources.co.uk/cases/Tomlinson-v-Congleton-Borough-Council.php reinforced the principle of ?willingly accepted the risks? and ?an injured person willingly accepted the risks?.
But there is an inbuilt assumption in both ?willingly accepted the risks? and ?an injured person willingly accepted the risks?, namely that the injured person was aware of those risks. It is understood that claims lawyers are exploiting those cases where risks which are not obvious or are peculiar / unique to the cave cannot have been willingly accepted since they were unknown.
Another relevant piece of legislation is Section 2 (1) of the Unfair Contract Terms Act 1977 which states ?A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence?. It is thought that this affects the extent to which the occupier may obtain an agreement to modify his duty under the Occupiers Liability Act.
Part 2 deals with a specific change in understanding and followed on from a comment I made at https://ukcaving.com/board/index.php?topic=22192.msg280847#msg280847:
My take is that if a parent signs a waiver on behalf of his child and an unfortunate event occurs then the Official Solicitor could intervene and say 'no this was too dangerous' and the waiver has no validity either because of Unfair Terms and / or the Human Rights Act. In that respect, given there are two ways of defeating the waiver, then there seems better odds of defeating the waiver than just the one way for adults. But the end result would be the same, so not worse.
More significantly in my opinion is the land owner in asking for a waiver means the caver is a visitor which increases the potential for liability though no doubt there will be arguments over whether the caver knew the risks better than the land owner and thus should be treated under Sec 2(3)(b) under the '57 Act. Whereas just having a simple notice for a trespasser means the land owner can use Sec 1(5) under the '84 Act.
It has brought home to me how a land owner intent on minimising liability would be better palming the whole lot off onto an ACB and contract the ACB to place notices on his behalf.
