We’ve likely all undertaken a recreational activity where we’ve been asked to sign a waiver form beforehand as the operator seeks to limit liability for potential injuries or damages to participants.
Waivers or release forms are commonly used as a means for those who own or run the activity to limit their liability when individuals voluntarily participate in activities with inherent risks. By signing a waiver, participants acknowledge and accept the potential dangers involved, and absolve the organisation from responsibility for injuries or damages that may occur.
In New South Wales, the enforceability of such waivers is governed by the Civil Liability Act 2002 (the CLA). In his article, we’ll outline the provisions of the CLA in relation to waivers and look at the extent to which they can protect organisations from liability and the circumstances under which they may be challenged.
How waivers work with the CLA
The CLA deals with the enforceability of waivers through Section 5N. This section allows parties to contract out of the Act’s provisions, provided the waiver meets certain criteria.
For a waiver to be valid, it must be clear, unambiguous, and specifically reference the legislation it seeks to exclude or under which it seeks to limit liability. Additionally, the waiver must be signed voluntarily by the participant and with their full knowledge of its contents.
Despite the inclusion of Section 5N in the CLA, waivers are not enforceable in all circumstances. The Act does not permit waivers for claims arising from intentional acts, fraud, or reckless disregard for the safety of others. Moreover, waivers cannot absolve organisations from liability for any breaches of statutory obligations or for personal injury or death caused by their own negligence.
In Lormine v Xuereb  NSWCA 200, a woman suffered serious injuries on a whale-watching cruise. On arrival for the cruise, passengers were shown a form with printing at the top and blank spaces below which passengers were advised was for head count purposes. Part of the form, however, purported to waive the ship owners’ liability in respect of ‘Scuba diving and/or snorkelling activities as well as the use of any facilities and the use of the equipment’ of the dive centre.
At trial the defendants included among their defences that they had excluded liability on the basis of the waiver clause, but the trial judge accepted the woman’s evidence that she believed the form related only to passenger numbers. The defendant, the judge said, ‘did not discharge its obligation to do what was reasonably sufficient to give the plaintiff notice of the existence or content of the conditions’, and had not properly explained the form to the plaintiff, therefore the waiver did not release the defendants from liability.
Conflict with legislation such as the Australian Consumer Law
Suppliers of a recreational activity that requires participants to sign a waiver also need to be aware of the application of the Australian Consumer Law (‘ACL’), which stipulates that a supplier of services must ensure that the services are provided (i) with due care and skill; (ii) fit for the intended purpose; and (iii) delivered within a reasonable time. These consumer guarantees cannot, in general, be avoided by a supplier of services, although recreational service providers may waive their liability in respect of any injury or death that may occur during the recreational activity.
A service provider cannot, however, expand exclusions to include, for example, ‘any injury, loss, damage, death, economic loss whatsoever’. Such a broad phrase will likely render the waiver void.
Additionally, a supplier of a recreational activity may ask a participant to agree that the ACL’s guarantee that services are provided with due care and skill does not apply through specific wording and the agreement of the participant. Exclusion of consumer guarantees, however, will not negate the supplier or operator’s duty of care to the participant where they suffer a significant personal injury caused by the reckless conduct of the supplier.
How expert compensation lawyers can help
The enforceability of waivers under the NSW CLA provides those who operate recreational activities a means to manage potential liabilities associated with their activities and events, while imposing certain conditions to safeguard the rights of individuals. Cases over the enforceability of waivers can be complex, revolving around the clarity of the language used, how thoroughly the terms are explained to participants, whether the recreational activity carries inherent risk and how the exclusion of liability works with consumer guarantees.
Our award-winning personal injury lawyers at BPC Lawyers can provide clarity and practical advice on how to go about a claim if you are unsure about the enforceability of a waiver, so contact us today to discuss your case.