I signed a safety waiver. Can I still claim compensation?
Published 26 Jun 2018
Signing a safety waiver is a common requirement if you want to take part in a commercial recreational activity that could cause injury or distress. Whether it's jet skiing, white-water rafting, trampolining or another action-packed pastime, you'll likely have to sign on the dotted line before you're allowed to take part.
But do safety waivers completely absolve businesses of liability? What happens if you are seriously hurt during an activity and you believe the organisation was negligent? To find answers, we have to examine the Civil Liability Act 2002 (NSW) and past cases.
Were you warned of the risks?
Public liability claims can often be boiled down to three key questions:
- Did the organisation or individual owe you a duty of care?
- Was this duty of care breached through negligence?
- Were your injuries a result of this negligence?
If the answer to all three questions is yes, your claim is likely to succeed. However, signing a waiver is designed to counteract the first question by removing a defendant's duty of care towards you.
Under Section 5M of the Act, defendants do not owe you a duty of care for recreational activities if you have been warned of the risks involved, either in writing or verbally. Therefore, the primary purpose of waivers is to show that you are aware of any hazards and are happy to proceed anyway.
Can I still make a claim?
Signing a waiver does make it more difficult to succeed with a public liability claim - but these types of risk warnings are not ironclad. For instance, waivers do not protect defendants if you can convince the court that the organisation contravened state or federal safety laws.
Furthermore, businesses can't rely on this defence if they forced you to take part or their risk warnings are contradictory. An example would be an instructor downplaying the dangers of an activity in order to encourage nervous participants to join in.
In 2015, a girl who was injured in a quad bike accident was awarded $136,000 after she fell from her vehicle while trying to keep up with her instructor.
The NSW Court of Appeal ruled the waiver she had signed should not exclude the defendant from liability because it contradicted the company's website, which described the quad bikes as "easy to use" and "surprisingly easy".
Have you been injured during a recreational activity?
Public liability claims for recreational activities can be complex, particularly when waivers are involved, which is why you need experienced no-win, no-fee lawyers on your side.
At Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers, we have decades of experience of settling many kinds of personal injury claim. Please contact us today to learn more.