Brisbane & Gold Coast No Win No Fee Personal Injury Lawyers explain liability waivers and when they apply. FREE legal advice 24 hours a day to all Qld.
Have you suffered an injury undertaking sporting, health & fitness or recreational activity? Or were you injured at a theme-park? Are you thinking you can’t bring a personal injury claim because you signed a waiver of liability? Well, read this post about liability waivers, as you probably do still have a personal injury claim to pursue.
No Win No Fee Personal Injury Lawyers can Advise whether a Liability Waiver is Valid
Many think they don’t have a personal injury claim because they’ve signed a Waiver of Liability before undertaking a certain activity. This is not always the case. A Waiver must be very clear and specific in its wording to exclude a person’s right to claim compensation for personal injury. The Waiver must also clearly form part of the contract for the services. There must also be some consideration for agreeing to waive your rights to pursue accident and injury compensation. (“Consideration” is value for agreeing to waive your rights to recover compensation for any injury sustained).
The Liability Waiver You Signed May Not be Valid Under Australian Consumer Law
Also, Waivers can be invalid under Australian Consumer Law (ACL). ACL is federal trade practices legislation, adopted by Queensland through amendments to the Queensland Fair Trading Act 1989 in 2010. ACL imposes mandatory guarantees on providers of products & services to consumers in Queensland and Australia, and those guarantees cannot be excluded by Waiver.
Under ACL, where a party provides goods and services to consumers in Queensland, express guarantees apply under that legislation that the goods supplied are fit for the purpose for which they are provided and services supplied are provided with due care & skill. Under ACL, these guarantees cannot be contracted out of in respect to claims for personal injury or death.
A Party Still Has a Duty of Care in Providing the Services Even With a Waiver
A Waiver will also provide no protection for a party where the injury has arisen out of their negligence in failing to use due care and skill in providing the services. Even with a Waiver, a party is still obligated to take reasonable steps to avoid risk of injury of which they are aware or ought to be aware.
We receive a lot of enquiries about injuries sustained at theme parks. Usually, when attending a theme park there is signage notifying of risk waiver at entrances and where tickets are purchased. Because of this, many believe they cannot claim for injuries sustained whilst visiting a theme park. But this is not the case. If the theme park has failed to use due care and skill to avoid risks of injury of which they are aware or ought to be aware, the Waiver can be found not to apply.
Personal Injury Sustained during Fitness Training or at Fitness Centres
We also often receive enquiries where injuries are sustained in the course of fitness training or attending Fitness Centres. The law in relation to Waivers as discussed above, also applies to fitness training and Fitness Centres.
In cases where a person suffers injury whilst attending at a Fitness Centre or with a personal trainer because they weren’t previously assessed as to their fitness for the exercise regime recommended or provided, then they may very well have a personal injury claim for the injury sustained and any resulting loss and damage.
In Queensland, under the Fair Trading Act Regulations , a Fitness Centre must provide clear warnings to clients before signing up with the Fitness Centre. The Fitness Centre must provide clear and readily visible signage warning customers that they must advise the Centre of any health concerns in writing before engaging their fitness services. The Fitness Centre must also include this warning in their customer agreement. Any failure in this regard, would negate any Waiver of a Fitness Centre, where a client suffers injury due to the lack of a fitness assessment, prior to engaging in the fitness services.
Personal Injury Claims Can be Voided Where Injury Arises Out of an Obvious Risk
In Queensland, the Civil Liability Act 2003 (CLA) limits claims for personal injury resulting from dangerous recreational activities carrying obvious risk. For this Defence to apply, the personal injury must arise from the materialisation of that obvious risk. This is a complex area of law that we will deal with our post entitled, “Personal Injury Claims & Dangerous Recreational Activities”.
Signed a Waiver? Contact No Win No Fee Personal Injury Lawyers- You May Still Have a Personal Injury Claim to Pursue
So, if you’ve signed a Waiver of Liability, don’t automatically think you don’t have a personal injury claim to pursue. It is more than likely that you do still have a claim, and one you should pursue.
No Win No Fee Personal Injury Lawyers specialise in accident & injury compensation claims. As experts in personal injury claims ,we can advise you whether you do have a right to claim. You can contact us by calling 1300 388 383, Chatting with us via our Livechat service on our website, or you can send us details of your case by submitting one of our FREE Instant Case Appraisal forms on our website.