Whether it's bungee jumping or paint balling, - any remotely ‘adventurous’ activity these days seems to come with a liability waiver.
For first timers, encountering such a document can be confronting - injury waivers? Death waivers? Really? On the other hand, those of us who are seasoned adventurers can become so used to signing waivers that we have ceased to even consider what we are agreeing to.
So what exactly are liability waivers? Do they exempt a recreational business completely from responsibility? And are we signing all our rights away every time we hop in a go-cart, pick up a paint gun or don some climbing ropes?
What Are Liability Waivers?
Liability waivers, disclaimers, exclusions and limitations all describe clauses that reduce the scope of a recreation provider’s liability, thereby limiting a participant’s rights to sue for damage they might suffer.
A waiver may refer to a specific area of liability such as, for example, loss or damage to clothing or personal items. In other cases it may require you to waive all rights to sue including where someone has suffered injury or death, regardless of fault or negligence on the provider’s part.
Waivers may also take the form of a risk warning which limits the activity provider’s liability for claims of negligence by warning of relevant risks. For example, you may be required to sign a statement that you acknowledge the activity you wish to participate in carries certain risks of injury. If you are then injured as a result of one of those risks, you can’t claim you didn’t know what you were getting yourself into.
Are Liability Waivers Enforceable?
This will depend on a number of factors.
Firstly, the waiver must form part of a binding contract between you and the activity provider. Any waiver clauses must be clearly incorporated into the contract, brought to your attention and agreed to by you before you commence the activity. Where an exclusion clause is particularly unusual, unreasonable or risky, extra measures must be taken to draw your attention to it.
Secondly, the waiver must use clear, unambiguous and specific wording to describe the liability that is being excluded. For example, if a provider wants to exclude their liability for negligence, they must specifically use the word ‘negligence’. If a waiver is too vague such that a participant is unsure about what rights they are relinquishing, a court will usually decide it is unenforceable.
What Liability Can Be Excluded or Limited?
In order to answer this question it’s important to understand what a recreational service provider can be held liable for in the first place.
Ordinarily, a business providing recreational activities will be liable for injuries or loss that you suffer because they have failed to exercise reasonable care. This might happen where equipment is not properly maintained, staff are not well trained or inadequate supervision is provided.
In this situation the provider of the recreational activity may be liable to you:
- in negligence for breaching their duty of care
- in contract for breaching an implied term to exercise due care and skill; and
- under statute for breaching consumer guarantees which require them to provide services with due care and skill and services that are fit for purpose.
When properly worded, waivers can validly exclude the first two sources of liability, (1) negligence and (2) contract. However Queensland law does not permit the exclusion of the third source of liability: (3) breach of statutory consumer guarantees. Australian Consumer Law requires that all service provides including providers of recreational services, must guarantee they will provide such services with due care and skill. This means that they must take care to avoid loss or damage and meet a certain level of professional skill and knowledge.
Waivers may also state that liability for obvious risks of injury or dangerous recreational activities is excluded, however this is simply re-stating what is already provided for by legislation.
Can I Still Sue if I Am Injured While Participating in a Recreational Activity?
Signing a liability waiver does not automatically cancel all your rights to bring a claim for personal injuries. Whether or not a disclaimer will be effective will depend on whether it contained proper and adequate risk warnings and whether the waiver was enforceable.
Even where a disclaimer or waiver is enforceable, if your injury results from the activity provider’s failure to exercise reasonable care such as by providing faulty equipment or not training their staff properly, you may have a right to sue for breach of consumer guarantees (which cannot be excluded) or under some other source of liability.
If you have signed a liability waiver and are injured, it’s best to speak with a lawyer about your options. They can look at the specific circumstances and the wavier you signed and tell you whether or not you still have rights.
So if You Can Still Sue Despite Signing a Waiver, Why Do Activity Providers and Venues Have Them?
One reason is that it may serve as a deterrent to potential claimants. Participants often assume that since they have signed a liability waiver they have no rights to sue in the event they are injured.
In addition, the legal remedy a claimant is entitled to may be different depending on whether they are sued for negligence or breach of statutory duties, and a waiver can enable a venue to narrow down its potential sources of liability. In some cases the Australian Consumer Law will not apply, meaning that a waiver may be able to exclude all sources of liability.
What Should I Look For When Signing a Waiver?
Its hard to be serious when you’re ready to have fun, but be sure to read any waiver before you sign it. If something is unclear or ambiguous, ask the service provider to clarify what it means.
If there is something that you are uncomfortable with, ask to negotiate the waiver. If this is not possible, you can go away and obtain legal advice. However don’t expect to be allowed to participate in the activity if you haven’t signed the waiver.
Make sure you’re confident putting your life in the hands of the business you are contracting with. Research their reputation online. Take a look at their equipment - does it look new and well maintained? Are their staff helpful, knowledgable and well trained?
Can Parents Sign Waivers on Behalf of Their Children?
Generally speaking contracts signed by children under 18 are not legally enforceable unless they are for the child’s necessities of life. Most waivers for recreational activities are unlikely to fall into this category and therefore cannot constitute legally enforceable contracts.
What’s more, the parent or guardian of a child can’t legally make a contract that the child couldn’t make themselves. As such, a waiver signed by a parent on behalf of their minor child will not be enforceable either, unless the waiver contains an indemnity whereby the parent signing agrees to indemnify the activity provider against any damage suffered by the child. In this case, the parent may be liable to pay the activity provider for the amount of any claim their child makes, obviating the benefit of making a claim.
The Take Home Point on Waivers
Whether or not you have signed a waiver, you may still have rights if you are injured while participating in a recreational activity. Always seek the opinion of a qualified lawyer to find out whether the wavier is enforceable and what rights you still have.
Signing a waiver could severely impact your future financial position if you do happen to suffer a serious injury. Before signing a waiver, always try to understand which of your rights are affected and do your research on recreational service providers to ensure they have a good safety record.
