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Published: 01 April 2019
Author: Peter Claven
If you’ve ever participated in an activity that’s deemed to be even slightly risky (think car racing), training at a gym, or playing an organised game of footy – it’s more than likely you’ve signed a waiver that you agree not to pursue legal action against the provider if anything happens to go wrong.
Waivers can take many different formats. They can be lengthy documents filled with legal jargon, or a simple hand-written note on a scrap piece of paper. They can also just be signs. For example, we’ve probably all seen the signs that say something like ‘use this carpark at your own risk’ when using a car park.
Waivers are legal contracts between the organiser of an activity and the participant, or the provider of a service and the user. By signing or agreeing to the waiver, the participant/user acknowledges that they’re aware of the likely risks they will experience when taking part in the activity and they agree that they won’t hold the service provider responsible for any loss, damage or injury that might occur should something go wrong.
In short, just because you’ve signed a waiver or agreed to continue with a course of conduct (e.g.: park in a paid carpark), that doesn’t always mean that you don’t have any rights to pursue legal action. The law requires activity providers and those offering a service to take reasonable steps to reduce any foreseeable risks.
If someone was negligent, then they were negligent, and providers can’t simply hide behind the fact that you signed a piece of paper saying they won’t be held responsible. Their end of the bargain is to take reasonable steps to reduce any foreseeable risks – and if they haven’t done that, then you may well have a case.
There are myriad examples of where a waiver can be disputed as follows:
In all three of the above examples, the fact that you’d previously signed a waiver wouldn’t prevent you from pursuing legal action.
Yes, when you’re racing a car or training at the gym, these activities come with certain inherent risks, and one of those risks is the risk of injury. However, signing a waiver does not absolve the body responsible for maintaining their environment track to ensure duty of care to their patrons.
If you can prove that the activity or service providers duty of care was breached, then you may well be able to pursue legal action.
The important thing is that you’ll need to prove firstly that the provider who owed you a duty of care was negligent, and secondly, that your injury, loss or damage occurred as a consequence of that negligence.
Conversely, if your injury, loss or damage occurred as a consequence of the normal risks associated with the particular activity (e.g.: you’re running on racing a car around a track and fail to take a corner properly, causing you to drive off into the wall) and are not due to the provider’s negligence, then succeeding in a legal action would likely be very difficult.
If you'd like to make an enquiry about a legal matter, talk about a career at Stringer Clark, or perhaps have a suggestion on how we can improve our service or even our website, we'd like to hear from you.
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