Does A Waiver Wave Away All Rights To Make A Claim?
We’re told to sign them every time we do any sort of organised activity that could be considered risky such as clubs or schools teaching surfing, horse riding, abseiling, bungee jumping, whitewater rafting, skiing, rock climbing or hang gliding. “Sign this waiver before we start,” they say – thrusting a paper with legalistic phrases in front of us. Try to say ‘hold on, I want to check this out,’ while kids are crying to get going and you’ll ruin the day. So we sign hoping nothing goes wrong.
But are we signing away all claims for restitution should the equipment break, the horse throw us off, or the canoe sink? Is the company running the show now exempt from responsibility? The answers could lie in Section 5N of the Civil Liabilities Act of 2002. It’s not riveting reading, but it’s worth knowing about it.
A central theme within the Act is for individuals to take greater responsibility for their own safety, and to limit the liability that can be imposed on defendants in claims for property damage, economic loss and personal injuries. If a person has been appropriately warned of the risk in an activity or that the risk is “obvious” and they then voluntarily and freely accepted that risk, it may be able to avoid liability for the person who provides the activity.
The Act was brought in after insurance costs soared for such recreational activities and events such as fairs, camps, trail rides and sport classes around the State were cancelled.
However, it is important to know that there are still legal provisions that protect a person who signed a waiver if someone in the organisation acted negligently or is guilty of misconduct. While waivers offer a large degree of protection to the organisation, each case has to be considered on its individual merits, especially the circumstances of the incident. It’s important for organisations to have adequate injury prevention strategies in place, and act on them.
For organisations who conduct risk recreational activities it would be prudent to obtain legal advice as to how Section 5N can help protect you and your business. Waivers do not get organisations out of having to ensure everything possible is done to ensure the safety of clients. It would be best to know your legal responsibilities.
Similarly, even if you have signed a waiver and are injured or suffer economic loss there are legal avenues you can pursue and it would be wise to consult a legal expert experienced in the field.