You signed a waiver. Can you still claim compensation for personal injury in Queensland?

What is a waiver?

A waiver is a document which says that if an accident happens, you can’t claim compensation.

For example, if you go skydiving or bungee jumping, the event organiser / supplier will definitely make you sign a waiver. But waivers are increasingly used in other situations, such as if you go to a theme park, snorkeling and so on.

A waiver can only be used to limit liability for personal injury (including psychological injury) or death in respect of recreational services. Basically, recreational services are a sporting activity or an activity that involves a significant degree of physical exertion or physical risk. Importantly such an activity must be undertaken for the purposes of recreation, enjoyment or leisure.

As you can imagine, whether an activity is considered to be a recreational service can be up for dispute. For example, would you consider that going to a theme park involves a significant degree of physical exertion or a significant degree of physical risk?

Why use a waiver?

In some cases, using a waiver makes perfect sense.

If you go skydiving, there are some inherent risks which can manifest even if the organiser takes every possible and reasonable precaution. For example, there can be a sudden change in turbulence that a parachutist instructor can’t do anything about. (This is what actually happened in the case of Marks v Skydive Holdings Pty Ltd. Turbulence led to hard landing, which resulted in the plaintiff’s spinal injuries).

It is not unreasonable for an event organiser to say that there are some risks they can’t protect you against, and that if those risks materialise and you get injured, they won’t be liable.

However, often waivers are much broader: they try to stop you from getting compensation even when the injury was due to the negligence of the event organiser/service provider.

To stay with the skydiving example, imagine the accident happens because of the defect in the parachuting equipment which could have easily been noticed but the instructor has negligently failed to inspect the equipment.

Why shouldn’t you get compensation in this situation?

We may be able to get you compensation despite a waiver – here is how

Over the years we have found that waivers are often ineffective and unenforceable. It is still possible to claim compensation for a Queensland personal injury even if there is a waiver.

For a start, event organisers often forget to make you read and sign the waiver before they provide their services. For example, you might buy a ticket online and after the purchase, the email confirmation contains the waiver. On the day of the event, you simply show your email confirmation and you participate in the activity. In this situation, the waiver is meaningless. You purchased your ticket before the waiver was given to you and they didn’t make you sign the waiver before allowing you to participate in the activity. This happens more often than you think.

Secondly, a waiver does not protect an event organiser from paying compensation for personal injury suffered by a person where it is caused by reckless conduct.

Reckless conduct takes place where the event organiser is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person and engages in the conduct despite the risk and without adequate justification. As you can imagine, whether an event organiser’s conduct was reckless will depend upon the facts of each individual case. However, this goes to show that a waiver is not a blanket defence for every personal injury claim.

Thirdly, (and this is probably the most frequent mistake we see) waivers are often worded in a way that seeks to protect the service provider from all liability, be it for personal injury or property damage. The problem is, for a waiver to be legal, it must have a limited scope. If it seeks to protect the service provider from liability for personal injury only, then it may be ok. But if it goes beyond that and protects against, say, theft or property damage, that’s too much and the effect is that the waiver is basically worthless.

The good news (if you are an injured person) that the people who write these waivers want so much protection for themselves that they often overshoot it and the end result is they get no protection at all and you can claim compensation.

Next steps

If you are concerned about a waiver in your situation, we can have a look at it and advise you whether you might have a valid claim. Call us on (07) 3063 2268 or email info@deneslawyers.com.au to book your FREE consultation with us.