When taking part in certain recreational activities in Australia (such as Treetop, bungee jumping, etc.), you are sometimes required to sign a waiver. If you refuse to sign, you are not permitted to take part.
So, if I have signed a waiver, does that mean I cannot claim compensation if an accident occurs?
If compensation is possible, what evidence do I need to provide?
Today, let’s take a look at what you need to know about waivers.
Does signing a waiver mean no compensation?
The area of law that governs the signing of waivers is not straightforward. Beyond the waiver itself, there are many other factors to consider, such as state and federal consumer law.
While this is a complex area of law, you may still be able to bring a claim, so it is essential to seek legal advice before giving up your right to claim.
What is a waiver?
A waiver is typically signed before you take part in an adventure activity, enter an amusement park, or sign up to use a public gym or swimming pool.
Generally, these disclaimers state that you understand and accept the risks associated with the activity, and that if you are injured, you waive your right to sue.
Many people therefore understand this to mean that if you have signed a waiver, you have no legal recourse should you suffer a serious personal injury during the activity.
However, the actual situation is far more complex.
Signing a disclaimer may make the claim process more challenging, but it certainly does not mean you cannot pursue one.
Definition of a liability waiver
A liability waiver can be understood as a legal contract between the activity organiser and the participant.
By signing the contract, the participant acknowledges that they are aware of the inherent risks involved in taking part in the activity, and agrees that the service provider will not be held responsible for any injuries that occur during the activity.
When can I make a claim?
I signed a waiver, but I was injured. Can I still make a claim?
There is no straightforward “yes” or “no” answer to this question.
If you can prove that the activity provider breached their duty of care, you may be able to bring a claim. For example, where equipment was not properly maintained or staff were not properly trained.
The key is to demonstrate that the service provider who owed you a duty of care caused your injury through their negligence.
If your injury resulted from the normal risks associated with the activity, rather than from their negligence, then the prospects of a successful claim are much lower.
What can I claim?
This depends on your specific circumstances, but under public liability law, you may be able to claim compensation for the following:
- Past and future medical expenses
- Past and future loss of income
- Pain and suffering endured, and damages for loss of enjoyment of life
- Care and assistance provided to you by friends, family or other individuals
Are waivers legally binding in Australia?
A waiver is not necessarily enforceable, which means that even if you are injured, you may still have the right to claim compensation.
All contracts must be very clear and specific in their wording, so that both parties can understand what they are agreeing to.
In the context of waivers, this means that before the activity begins (especially a dangerous activity), the activity provider must make additional efforts to ensure that you understand the risks and information contained in the waiver.
If the contract uses ambiguous language and you are unsure what rights you are giving up, then the court may find that such a waiver is not legally binding.
I was injured after signing a waiver — what should I do?
If you continue to experience symptoms after being injured, and another person, business or organisation is responsible, you may be able to bring a public liability claim.
To help you s\ucceed with your claim, we recommend gathering evidence as soon as possible after the injury. This evidence may include:
- Taking photographs of the injured area
- Sharing with your lawyer any injury report you made, along with any responses from those responsible for your injury
- Recording any expenses or loss of wages caused by your injury
- Writing down what happened to you
- Recording the contact details of all witnesses
- Keeping any medical records relating to your injury, including appointment dates, medical certificates and x-rays
Finally
If you have signed a waiver but were injured during the activity, and you are unsure whether you should make a claim,
or if you strongly suspect that someone has breached their duty of care but need to discuss it with a professional,
then please get in touch with us.
NS Legal has experienced professionals who can advise you on whether to pursue a public liability claim and help you seek justice.
