When we go to a theme park or to undertake some “extreme” sport, we are often asked to sign a “waiver”. They usually say that whatever happens, we can’t sue the company that provides services to us. Does this really mean we lose all our rights?
This is the very issue which has recently been considered by the Supreme Court of Victoria. The plaintiff in that case went skydiving and suffered spinal injuries when she and her instructor crash landed.
What rights do we sign away?
When a company provides us services, be it a theme park, extreme sports or something similar, they owe a duty to take reasonable care to prevent injuries. In addition, the Australian Consumer Law includes a guaranty that services will be provided with due care and skill.
What is the purpose of a waiver?
The idea is that by signing a waiver, you agree to waive the rights which you otherwise would have to sue for damages. In addition, waivers often include an “indemnity” which generally states something to the effect that if you try to enforce your rights, then the company will defend itself and you must eventually pay the costs which they have incurred.
Waivers are rarely effective
The problem with waivers (for a defendant) is that often they cannot be enforced. There are a variety of reasons for this. Sometimes their wording is vague. Sometimes they are not shown to the customer at the time of purchase. And sometimes there is no evidence that the customer has ever accepted the terms of the waiver
What happened to the waiver in this Victorian case?
The plaintiff purchased her skydiving ticket on the skydiving company’s website. After she paid and her booking was confirmed, she was then directed to go on the website of the Australian Parachute Federation and complete a membership application there. That membership application was also done online and it contained a waiver. (Incidentally, the waiver was a very well drafted document). The argument was that by completing the membership application, the plaintiff accepted the waiver.
The court disagreed and held that there was a concluded agreement with the skydiving company before the plaintiff was presented with a waiver, and that there was in fact no evidence that the plaintiff ever saw the waiver, that it was drawn to her attention or that she accepted it.
The court concluded that the waiver was not effective and the plaintiff retained her rights to sue for personal injury.
Outcome and conclusions
The plaintiff eventually lost her case but not because of the waiver issue. Rather, the court found that the incident occurred due to a very unfortunate and unavoidable change in weather conditions and despite taking all care the company could not have done anything more to prevent it. But the case is a good illustration of the point that it remains very difficult to enforce waivers.
