As noted on the home page, "Riding with Muggaccinos regularly, is predicated upon completing a Muggs' Liability Acknowledgement form."

Adjoining this file is access to "Liability Acknowledgement".  Approx 20 regular Muggaccinos' cyclists have signed the Liability Acknowledgement and returned it to Phil Johnston.  Only 2 returnees amended the form, and only by amending a clause or two.  Phil Johnston thanks those 20 or so for going to the trouble of expressing their view on the important issue of duty of care and liability.

Muggaccinos' ride organiser places himself in a vulnerable position by inviting members of the public to participate in a dangerous activity on a regular basis, where he sets out 100km approx. weekly routes on public roads, with big hills.  He might be litigated by a participant which is seriously injured on a ride, and considers that the ride organiser was negligent, and such alleged negligence had contributed to the participant's injuries.  

Hence, any additional executed LAs which express the participant's understanding of his, and the ride organiser's responsibility, will be willingly received.

A few months ago Bike North BUG amended the disclaimer in the fine print on its Ride "Log Sheet" -

• from 'inter alia' seeking ride participants to absolve liability from the ride organisers 

• to -

(i)     seeking participants to acknowledge that cycling may be a dangerous activity; and

(ii)    requiring ride participants to obey the road rules.

Below are both the "PREVIOUS " and "NEW" disclaimers.

·        PREVIOUS “LIABILITY DISCLAIMER”: I acknowledge that I join this ride as a volunteer in all respects and as such accept sole responsibility for any injury howsoever incurred and Bike North and the appointed ride contacts cannot be held liable in any respect of any injury or damage resulting from my participation in this ride activity.  Riders under 16 must be accompanied by a cycling adult carer.  An SAA approved helmet is legally required and to be worn correctly by all participants on all rides.  Essential equipment also includes a bicycle in good working order and a water bottle.  Money, tasty snacks, a tyre pump, a tube and/or repair kit and appropriate tools are recommended as well.

·        NEW “RISK WARNING”: As a participant in this recreational activity, you may be exposing yourself to a risk of harm. Bike North, the ride organisers and leaders wish to warn you of the risks and hazards that are an inherent part of cycling, and to take care to prevent putting yourself, your fellow participants and/ or others into danger.  By signing this form, you agree to ride in a safe and responsible manner and to obey all Australian Road Rules.

It is a personal view.  However, I (Phil Johnston) think that Bike North's new disclaimer is more useful, because I do not think that "stuff hidden in the fine print" would present tangible evidence (which would influence a judge or jury) if an injured participant was alleging that a ride organiser had been negligent, and such negligence had materially contributed to the participants injuries.  Hence, I consider that reminding that cycling may be dangerous and obeying the road rules is obligatory, to be more useful.

Notwithstanding, in the most litigious country on the globe, America, invariably cycle club liability disclaimers still seek ride participants to release the ride organiser from liability if a participant is injured, as well as releasing "their 4th uncle's cousin's twice removed next of kin".  Below is the liability disclaimer of the Arizona Bicycle Club ("ABC"), which is one of the larger cycle clubs in the USA:

Arizona Bicycle Club "Release and waiver":
I hereby waive and discharge all claims, actions and causes of actions by me, my heirs, executors and administrators against the Arizona Bicycle Club (“ABC”) and its officers, directors, chapters, sponsors and sponsoring municipalities, organization and any others connected with this or any ABC event, for any injury, harm or death, damages, loss or inconvenience sustained as a result of my participation in any ABC event, or any activities associated therewith. 

Awareness of dangers:
I am aware of the inherent risks in participating in a bicycling event, and I assume all responsibility for my own safety. 

Wear a helmet:
i understand that ABC requires bicycle helmets to be worn by all participants in all ABC events while operating bicycles and that there is no exception to this requirement. i agree to wear a bicycle helmet at all times during ABC bicycle events while i am riding a bicycle. 

Obey road rules:
I agree to obey all traffic laws at all times during any ABC event.

Permit emergency medical treatment:
I also consent to and permit emergency medical treatment in the event of injury or illness. 

Do not require confidentiality:
I also give full permission for the use of my name and photograph in connection with an ABC event. "

Below are a few interesting e-mails on the subject.  I recommend that you commence reading from the bottom up.

-----Original Message-----

Hi Phil,

I’ve read the below two e-mails and the Liability Acknowledgment and it all makes eminent good sense, as far as I can see.

I do like the input of humour, as without it, it could scare people away from joining ‘Muggs’ -  too many r’s and r’s (rules & regulations).  As it is, there is a balance between covering all the main safety factors and rules, without it appearing to be Police run State!

The “Scary Fast” on the downhills bit I particularly relate to, as I can recall many a ‘Mugg’, with a seemingly strong death wish, whizzing past me, going hell for leather on a steep descent.  Papa Bear and the Smiling Assassin in particular being the main offenders in the old days.  Even yourself when there was ‘big bucks’ involved ($50, to be precise) - remember Mt Buffalo the Alpine Classic?

Perhaps a caution could be put in the ‘Ten Commandments’ or the Liability Acknowledgement - maybe both?  As I think there should be a caution, particularly to new riders in the group, to warn them of the dangers of getting caught-up in the moment of mass hysteria and general euphoria of the other (more skilled) cyclists when racing downhills or tackling tricky corners.

I recall one incident, about 18 months ago, when one young female rider hit the bitumen on her first outing with Muggs.  I recollect that it was quite a while before she ventured back to the group.  If this clause saves just one rider, then it will have been worth it - and I will have done something useful in this empty existence of mine!!

Also (now this may be getting really nifty picky) I would like to see more emphasis placed on cyclists’ consideration to motorists whilst riding on narrow, single-lane roads with double centre lines.  The less that drivers get pissed-off by us cyclists, the better for us in the long run.

Brenda

 -----Original Message-----

Below is my e-mail of 12 Nov to cyclists which, from time to time, ride with Muggaccinos.  

It –

(a)               cited 4 bad cycle accidents locally in the last 15 mths; and 

(b)               requested cyclists to –

   ¨             review the "Liability Acknowledgment" on Muggs’ website; and

   ¨             e-mail me if you have any discomfort about providing a signed hardcopy to me by end-November ‘02.

My below request invited Participants to amend any clause within the "Liability Acknowledgment" which they disagreed with. 

To date 5 crew have provided executed "Liability Acknowledgment", however, none have amended the text. 

The reason I transmitted the e-mail it is to stimulate discussion/action, so all regular Participants will -

(i)               have 3rd party insurance (available thru membership to BNSW, within their household policy which can generally be obtained for a higher premium [or a cycle racing club membership if it extends to all cycling, and not restricted to racing or training rides]) as each Participant is then better placed if there is an accident where a Participant’s negligence may have contributed; and 

(ii)             recognise an obligation on other Participants to take a few mins before Sunday to become familiar with the particular Ride Description.

Could you please –

(a)                review "Liability Acknowledgment" on Muggs’ website, and 

(b)               e-mail me if you have any discomfort about providing a signed hardcopy to me by end-December ‘02.

I re-iterate that my motive is to reduce the likelihood of an accident by seeking participants to be mindful that we all have a duty of care to each other.  And that extends to having 3rd party public liability cover, in case a cyclist’s negligence contributes to another cyclist being seriously injured.

Phil Johnston

 -----Original Message-----

Request for each Participant to sign a Liability Acknowledgment to better appreciate our Duty of Care

Background:

Since Sept 11, and the collapse of HIH, insurers are placing increased onus on the insured party to accept responsibility to mitigate risk.  One consequence is an insurer denying liability to an insured party if the insured party doesn't comply with all the terms/conditions of the insurance policy.

The more I talk to people about sporting accidents and the potential for high litigation, the more I hear about substantial claims.  The Ride Organiser is warranted by $20m professional indemnity insurance under the BNSW 3rd party group policy for those rides listed in Push On magazine.  I don't know if the Ride Organiser is covered for rides not listed in Push On.

Recent accidents:

The following nearby accidents in the last year is testimony that road cycling is relatively dangerous:

(a)          Graham Jones, member of BiciSport Cycle Racing Club, killed after being hit by an STA bus on Orchard Rd, Roseville at 7.15am last Sunday 10 Nov.

(b)          Serious accident opposite "Pie in the Sky" on 20 Oct between a motorbike & cyclist.

(c)          Male cyclist in 40s killed by a truck descending Wakehurst Parkway on a Sunday in mid-2001.

(d)          Female cyclist, Alison Keen, physiotherapist, who’d completed a few Foster IronMan tris, seriously injured on Warringah Rd around last March.

3rd party insurance cover / be familiar with pending Sunday ride:

I write the following to stimulate discussion/action, whereby 'inter alia' all regular Participants -

(i)           must have 3rd party insurance (available thru membership to BNSW or a cycle racing club) as each Participant is then better placed in there is an accident where a Participant’s negligence may have contributed; and 

(ii)          recognise an obligation on other Participants to take a few mins before Sunday to become familiar with the particular Ride Description.

I broach the following to mitigate risk, rather than possibly stew over a witch-hunt if an accident did occur which could have been avoided.  I have taken more risks on a bike than most over the years.  However, I have to be careful, as if a Participant follows me on say a short-cut on a Muggs' ride and seriously ‘comes a cropper’, that Participant might allege my negligence influenced their accident.

Duty of care:

I consider that a Ride Organiser has a duty of care to -

(i)        ride Participants to plan safe rides; and

(ii)       inform Participants of any apparent dangerous road sections.

Participants have a duty of care to the Ride Organiser, and to other Participants, to be familiar with the Ride Description and to not knowingly lead other Participants on alternate road section(s) which might, in the event of an accident, be deemed by an insurer, to have been unnecessarily dangerous.

Ride Descriptions:

These are generally published to Muggs’ website at least a month in advance.  I welcome anyone making suggestions, up to a week prior to the ride, on ways to improve a Ride Description.  But once I transmit a weekly e-mail asking Participants to hardcopy that Ride Description, the pending ride is locked in, except for unforeseen circumstances on the Sunday.

Each Sunday, Participants on Muggaccinos' rides sign a Bike North ‘Log Sheet’ which contains the standard liability disclaimer of similar text appearing in the entry form of community sporting events - triathlons, foot races, cycle rides, horse riding etc.

Liability Acknowledgment:

Listed on Muggaccinos' website is a document "Liability Acknowledgment" which I seek Participants to sign and return to me, as the Ride Organiser, by end-November.

If you disagree with any of the clauses therein, I'd welcome your verbally or reply e-mail.  Over the next few weeks I'll amend the text if convinced.  If, after broaching your concerns, you choose to delete or amend any of the clauses when signing it, I will respect that choice.

It is arguable whether such liability disclaimers/acknowledgments are of value should an injured 3rd party (incl Participant cyclist) litigate a cyclist for negligence as a result of a cycle accident.  However, enhanced familiarity of duty of care is beneficial.

I seek Participants to provide an executed "Liability Acknowledgment" to mitigate the risk of a cycle accident, as I don't think the small print in a Log Sheet, or for that matter in most sporting event entry forms, is apparent to Participants.

3 Previous accidents:

Finally, Muggaccinos' rides are on safer roads than most group rides, and our Participants are safety conscious.  However, there have been three accidents on earlier Muggaccinos' rides, two of which have involved substantial litigation, but not against the Ride Organiser.  As listed above, there have been 4 bad local cycle accidents in the last year.  Hence, being aware of our duty of care to each other, and particularly to all new comers on Muggs' rides which may not be as familiar with more dangerous route sections that regular Participants may take for granted.

Summary:

Could you please review "Liability Acknowledgment" on Muggs’ website, and e-mail me if you have any discomfort about providing a signed hardcopy to me by end-Nov ‘02.

Phil Johnston - 9498.3684 hm