It’s a fact of modern life that many of the activities we undertake are covered by contracts and other types of agreements setting out the legal rights and responsibilities of each party. Some of these contracts will include waivers, indemnity or exclusion clauses, most commonly where the document covers an individual’s participation in sports, tourism and leisure pursuits. A waiver or similar clause seeks to protect a venue or operator from liability for any harm caused to those who undertake the activity it offers.

The key question is whether these waivers and exclusion clauses are always enforceable, legally speaking, when a person suffers the misfortune of being injured during the activity. Courts have sometimes viewed waivers as little more than an attempt to avoid legal duties and responsibilities by those conducting an activity where a participant suffers harm.

The answer depends on a number of factors which we’ll outline in this article. In short, the waiver needs to be clearly worded, easy to understand, explain the risks of harm, address the circumstances that may cause injury, and be drawn to the attention of the participant before they sign the waiver.

How do waiver forms work?

Most people will know the experience of being asked to sign a waiver form. Whether it’s skydiving, horse-riding, going on a boat to see whales off the Queensland coast, or engaging in many other activities where some risk is present, the operator of the activity will usually present participants with a form that lists some legal-looking terminology and a place for the person to sign.

Waiver forms can differ greatly in the liability they seek to limit or exclude. Some may be quite specific in what they exclude liability for, such as damage to the participant’s personal possessions. Others are much more extensive, asking participants to waive all rights to seek compensation in the event of injury or death, regardless of fault or negligence on the part of the operator.

Most waiver forms will also include a risk warning which asks the participant to acknowledge (by signing) that the activity they are about to undertake carries risk of injury. By doing so, the operator seeks to exclude liability for negligence should a participant be injured undertaking the activity, arguing they were made aware of the risks beforehand.

When are waivers not enforceable then?

Waivers will generally not be enforceable by an operator or owner to exclude liability in a compensation claim by an injured participant unless they are assessed by the court as meeting certain criteria.

Firstly, the waiver must be part of what the court recognises as a binding contract between the participant and the activity provider, meaning the specific waiver clauses must be clearly part of the contract. Additionally, the clauses excluding liability must be brought to the attention of the participant and agreed to by them before they undertake the activity. Extra effort to draw a participant’s attention to the terms of the waiver should be made by the operator where the clauses are unusual or risky. Courts will also consider the nature of the activity when assessing the enforceability of waivers. High-risk activities may require more comprehensive waivers to be enforceable.

A further assessment is undertaken as to whether the waiver used clear, unambiguous and specific wording to describe the liability it seeks to exclude. An operator who wishes to exclude any liability for negligence should use the word ‘negligence’ within the waiver terms, for example. Courts will likely not enforce a waiver if its terms are vague or open to wide interpretation such that a participant is not clear about what they are agreeing to.

Finally, waivers should not be unconscionable or unfairly disadvantage one party. Courts will assess the bargaining power of the parties involved, and waivers deemed oppressive may be set aside.

Role of relevant legislation

Both the Civil Liability Act 2003 (Qld) (‘CLA’) and Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) play a role in personal injury claims arising from injuries sustained by participants in an activity where they may have signed a waiver form.

The CLA provides the legal framework for determining negligence in compensation claims. In the context of waiver forms, its main relevance is as a defence for operators through the concepts of ‘voluntary assumption of risk’ (including obvious risk) and ‘contributory negligence’. Voluntary assumption of risk first defines obvious risk to a person as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person (risks that are patent or a matter of common knowledge). Section 15 of the CLA states that a defendant does not owe a duty to a plaintiff to warn of an obvious risk to the plaintiff, unless the plaintiff has requested advice or information about the risk or the defendant is required by a written law to warn the plaintiff of the risk.

Operators may also rely on the CLA’s provisions about dangerous recreational activity, defined as activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person. Section 19 of the Act operates as a defence for an operator by stating that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm. The section applies whether or not the person suffering harm was aware of the risk.

Contributory negligence applies where an injured person failed to take reasonable care of their own safety when undertaking the activity and under section 24 of the CLA, can wholly defeat a claim for damages if proven.

PIPA sets out the procedures for personal injury claims in Queensland. Section 11 of this Act requires the plaintiff to give notice to the potential defendant before commencing legal proceedings.

In addition, a person injured undertaking an activity because the operator failed to exercise reasonable care - using faulty equipment or failing to properly train staff, for example – may be in breach of consumer guarantees under the federal Australian Consumer Law (‘ACL’), providing another legal option for injured participants.

Discuss your case with our professional team

Whether a waiver is worth the paper it’s written on is a sometimes complex legal question, depending on how the form is written, how it was communicated to the participant, and the nature of the activity. The advice of experienced compensation lawyers is crucial to understanding whether the waiver prevents a personal injury claim by an injured person or is unenforceable by the activity provider. Contact our expert team at Lifestyle Injury Lawyers for further information.