On child-friendly activities, contractual releases, and choice of forum: part 1.

So one fine day, before Christmas, my family and I happened to be¹ at a shopping mall, which had set up a temporary indoor playground in an open space. We're talking bouncy castles, a ball pit, trampolines - you get the drift.

Before entering the play area, parents had to fill in an online waiver form.

So I dutifully loaded up the webpage, ignored the chunks of legalese and scrolled all the way to the bottom to fill in my children's details, then went on my merry way.

Hahahahaha nope.

I actually went to read the legalese.² And, well, some clauses caught my eye.

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First, there was a clause providing that the organiser and the mall will not be liable if you or your kid gets hurt at the playground.

Even if the injury was caused by the organiser or the mall's negligence.

"RELEASE OF LIABILITY: ...I agree on behalf of myself and my child/ward ... to hold [the organiser and mall] (collectively, the “Releasees”) harmless from any and all claims or causes of action arising out of my and/or my child/ward’s participation at [venue], including any such claims for negligence.

I expressly release, absolve and forever discharge Releasees from any and all liability, claims, demands or causes of action whatsoever arising out of any damage, loss, personal injury, or death to me or my child/ward, while participating in any of the activities offered at [venue]... This release is valid and effective whether the damage, loss, or death is a result of any act or omission on the part of any Releasees or from any other cause. This Waiver and Release of Liability includes, but is not limited to, death, injuries, or accidents, which may occur as a result of... (c) improper maintenance of the facility, grounds, or any equipment..."³

But this clause is unenforceable, because under the Unfair Contract Terms Act 1977,⁴ "a person cannot by reference to any contract term or to a notice given... exclude or restrict his liability for death or personal injury resulting from negligence."⁵

So for example, if my child gets hurt because the organiser negligently failed to maintain the ball pit, this clause is unlikely to restrict me from suing the organiser.

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Why, then, do organisations still get participants to sign off such unenforceable releases?

Perhaps they know that such clauses are unenforceable, but are banking on the average participant being unaware - so that if an accident does occur, the participant is sufficiently cowed by this clause, to the point where they don't take action or even obtain advice.

Or perhaps the release form is LLM-generated word salad, or just a low-effort copy-and-paste job from goodness knows where.

Either way, this is not an ideal state of affairs for participants.