Most of us have been to a business where we have been required to sign a waiver against injury – usually for recreational activities such as horse riding, trampolining and so on.
Most people react by thinking "what the heck am I getting myself into", then sign the form against their better judgement and commence the activity.
We reassure ourselves with the thought at the back of our minds that "surely the venue still has to do what is reasonable to keep the activity safe".
There are certain guarantees which apply in consumer contracts, known as "consumer guarantees". They include the guarantee that the services (such as a recreational activity) will be reasonably fit for that purpose and that the services will be rendered with due care and skill. These guarantees are said to be inalienable or unable to be contracted out of.
However, Section 139A of the Competition and Consumer Act allows suppliers of recreational services to exclude, limit or modify the consumer guarantees. Section 139A provides that the exclusions will not be valid unless limited to excluding liability for injury or death only.
Many exclusion clauses or waivers will attempt to limit liability for death or injury AND property damage. Section 139A has the effect that waivers which are drawn too widely so that they encompass both property damage and injury or death will be legally ineffective and invalid.
This means that if a person is injured or killed after signing a waiver, they (or their family) can still bring a claim if the waiver attempts to avoid liability for injury or death and property damage.
Section 139A goes further by stating that if a provider of recreational services attempts to exclude or limit liability through the use of a waiver, that waiver will not be effective in situations where the provider has been reckless in regard to the personal safety of the consumer. Recklessness is defined as being aware of significant risk of injury or death and engaging in that conduct without sufficient justification.
If you have been injured in circumstances where you have signed a waiver it is vital that you seek legal advice immediately. Strict time limits apply to bringing claims against the insurers of recreational service providers.
Have you been injured or do you have a question about a waiver you signed? You can contact us. We'll be able to help you via a quick phone call, ask us a question via email or even chatting with you online.