Recreational Service Providers in NSW Rely Upon Waivers at Their Own Risk

Published 31 Jan 2018

We have all had the experience of going to a children’s party, a gym or some form of recreational activity and being asked to sign a form waiving our rights (or those of our children) to claim compensation if we are injured in the course of the activity.

The waiver might appear, in plain words, to remove any chance of a claim arising from any injury howsoever caused. The waiver might be expressed as a Release, Assumption of Risk or even an Indemnity Agreement. The waiver may go to great lengths to exclude, modify or restrict claims for injury or death arising from an exhaustive list of potential accidents or mishaps.

In the face of such a waiver, it is understandable that most of us assume that any injury suffered will not be the responsibility of those providing the services. But do such waivers prevent a claim if an injury occurs.

The short answer is probably not.

What most people don’t realise, (including many providers of recreational services), is that any waiver has to be carefully drafted and limited in its scope in at least 2 fundamental ways. Where a waiver does not comply with the strict limits of the law, it is of no effect in preventing a claim for compensation.

Furthermore, a waiver will only form part of the conditions of engaging in a recreational activity where it is incorporated into the terms of the agreement you have with the provider. So for example, where you sign up and pay to attend a climbing adventure course over the internet, a sign you might see at the entry to the course the following day suggesting you participate at your own risk is unlikely to prevent any claim if you are injured while participating in the course.

This is a complex area of law, involving the interplay of the commonwealth Australia Consumer Law and state legislation. Ultimately, the providers of recreational services, sporting or leisure activities owe participants a duty to take reasonable care unless any valid waiver changes that position. The starting point for any injured person ought to be that they have a claim subject to receiving legal advice that a contractual restriction on that duty extinguishes their rights. Don’t merely assume that the waiver is effective and lose your valuable rights.

If you have been injured whilst engaging in a recreational activity and have not made a claim because you have assumed that you signed away your rights to do so, feel free to contact Gerard Malouf and Partners Compensation Lawyers for a no obligation discussion of your circumstances by calling 1800 004 878 or complete our email enquiry form on the website.