Many of us have had the experience of signing a waiver before taking part in an adventure or recreational activity. These waivers can be complicated and daunting, and too often people sign the forms without properly understanding their rights.
The law around waivers is complex, but it’s important to know that if you’re injured, it may still be possible to bring a legal claim – even if you have signed a waiver.
A waiver is an agreement between the provider of an activity, and the participants.
By signing a waiver, you acknowledge and accept the risks associated with the activity, and waive the right to bring a legal claim if you are injured.
A waiver is not always a form that needs to be signed. For example, a sign at the front of a theme park ride that says you “enter at your own risk” is a type of waiver.
If you’re taking part in an activity that might involve a waiver, make sure you ask to see any waiver, and allow yourself plenty of time to read it.
If you don’t understand any part of the waiver, don’t be afraid to ask for clarification.
You can amend or cross out parts of a waiver before you sign it, even adding a further line such as “except where injury, damage or loss has occurred due to negligence”. But it’s then up to the provider whether they’ll accept this version and let you participate.
Be cautious of waivers that have broad exclusions of your legal rights, or that specify you are not covered even in the event of negligence.
Another red flag is a waiver that puts a financial cap on liability, for example, it says the provider will cover injury claims of up to $1000.
If you are injured, the costs of medical bills and time off work can add up very quickly.
A waiver needs to be clear in its meaning and understood by the person who is agreeing to the terms. If you’re asked to read and sign a lengthy, complicated waiver 10 minutes before the start of an activity, then it may not hold up in court.
If it should be apparent to the operator that you didn’t understand the waiver or haven’t been able to read it, then again the waiver may not stand.
For instance, if you’ve told the operator you forgot your glasses and can’t read the waiver document, and they tell you to sign it anyway, the waiver agreement may not be valid.
Whether a waiver is enforceable can also depend on the age of the person in the activity. For example, waivers are not generally upheld for children under the age of 18, even if they have signed it.
While waivers do extinguish some rights, it doesn’t take away the legal obligations for providers to operate safely.
If you can prove the provider breached their duty of care or the accident occurred because of their negligence, then you may still have rights to legal action.
But if you were injured as a result of the usual risks associated with the activity, you’re unlikely to be able to bring a claim.
For example, if you were on a mountain biking tour and you came off a bike while riding down a steep path, your injuries could be seen as part of the normal risks of the activity.
However, if you came off the bicycle due to a dodgy wheel caused by poor maintenance of the bike, then it’s more likely your injuries were caused by negligence.
The key thing to remember is that if you’ve signed a waiver, you may still be able to make a claim for compensation.
If you’ve been injured and want to find out what your legal rights are after signing a waiver, contact us today.