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Tough Luck for Tough Mudders?

View profile for Robert Dempsey
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Recently, mud runs, such as the fashionable Tough Mudder event, are becoming increasingly popular around the UK with thousands of people signing up each year, meaning it’s even more imperative to ensure that both organisers and participants have adequate insurance cover in place.

 Anyone competing in an activity such as an obstacle course is usually asked to sign or read a document consenting to the risk of injury.

These “waivers” may even go so far as to say the organiser of the event will not accept responsibility for a participant’s death or personal injury even if this has been caused by its negligence.

Furthermore, the owners of the land where the event takes place can seek to avoid responsibility for injuries. Whilst the Occupiers’ Liability Act states the owner should do what is “reasonable” to make the property safe, they are able to restrict their obligation “by agreement”. This agreement could be included in the waiver.

If someone is injured during an obstacle course event, the organisers have a potential defence in arguing that participants consented to the risk of injury. The acceptance of risk will be limited to threats that naturally arise from that hazard. For example, participants may consent to the possibility of sustaining a few bumps and bruises, but may not consider anything more serious.

It is worth noting that these waivers are effectively part of a contract as the person is making a payment to use the organiser’s service. This means the organiser is required to “take reasonable care” in carrying out the contract.

If the premises used are part of a business relationship, contractual terms such as “we will not be responsible for death or personal injury” may be considered invalid and will not provide additional security to the organiser or the owner of the premises.

If the premises are not part of a business relationship, the organisers will still need to show they have done what is reasonable to ensure the safety of participants.

The definition of “reasonable” is where grey areas arise and why we see some cases going to court. Generally, "reasonable" would be seen as the organiser exercising a realistic or sensible level of care and skill to make the course safe.

Some of these "reasonable" measures include the completion of risk assessments which includes the regular testing of equipment and having health and safety measures on-site.

It is worth noting that we are also seeing the rise of insurance companies that will cover participants. These niche insurers will provide coverage regardless of fault.