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Liability Waivers for Personal Injuries – are they worth the paper they are written on?
- Feb 1, 2023
- Latest Journal
Personal injury waivers are not uncommon, you might have signed one in the past before you took part in a physical activity such as white water rafting, quad biking, or even a trampoline session, but this does not mean that they have any legal value. If you provide activities for the public or even if you just have members of the public on your land, can a waiver serve a useful purpose
Can I contract out of my liability for a personal injury?
You cannot rely on a contract with someone in which they agree not to sue you if they are injured due to your negligence. The Unfair Contract Terms Act 1977 (the "1977 Act") renders such agreements invalid. In addition, a private agreement cannot circumvent the power of a regulator, such as the Health & Safety Executive, to investigate and take enforcement action against those who breach health and safety law.
Are waivers at all useful?
Although a participant or visitor cannot waive their right to a personal injury claim by signing a waiver, a document setting out the risks and asking for acknowledgement of those risks by the participant or visitor (usually by way of a signature and date), can support a successful defence if an injury does happen.
Although section 16(3) of the 1977 Act makes clear that the existence of such acknowledgement is not enough on its own to establish that a visitor knowingly and voluntarily accepted a risk, a well drafted and signed agreement will usually be helpful to a defence. Even more so where the document states the importance of following any rules, signage and/or directions and the potential consequences of not doing so.
In some circumstances, simply confirming that a visitor was (or ought to have been) aware of a hazard could therefore be enough to avoid liability if an accident occurs.
Are there reputational risks associated with the use of waivers?
In short, yes. The legal of effect of personal injury liability waivers are often misunderstood and arguably misrepresented in the media. This can have a detrimental impact on customer relations and the public image of an organisation or company.
For example, tabloid reporting of endurance events often reference participants being required to sign a "death waiver", reporting that this prohibits them from being compensated for injury or death. This is often coupled with an insinuation that the organisers or landowners have effectively shirked their responsibilities. As above, this is not the case.
It is perhaps the use of the word "waiver" which causes an issue..
For this reason, it may be sensible to avoid the word "waiver". As above, the term "waiver" is, in any event, not wholly accurate. Alternative names may be a "participation agreement" or "participant acknowledgement". Beyond the labelling of the document - there is good reason to carefully consider the substantive wording. There is a balance to be struck between protecting the interests of the occupier and preserving their reputation and relationships with those signing the documents and the public at large. For example, you may wish to include an outline of the measures taken to protect against hazards and to draw attention to particular hazards, asking individuals to be cautious in relation to those. It is important not to overstate the effect of the document to avoid the risk that it misleads the individual about their right to seek compensation if they are injured.
The best way to avoid personal injury claims – is to avoid injuries in the first place…
Ultimately, "waivers" or "participation agreements" can serve a purpose in defending claims but they are also, most importantly, useful in preventing injury in the first place, by providing people with information about risks and securing their agreement to comply with any rules or procedures.
Such documents though will never be enough by themselves to avoid accidents and are unlikely to offer a complete defence to any claim. And in many cases, asking someone to sign an agreement will not be practical. Occupiers and event organisers ought to be proactive in understanding the risks associated with their land and any events being held on it. Once understood, reasonable steps should be taken to manage those risks. In some instances, that may be no more than a clearly visible warning sign.
How else can you protect your business?
Occupiers should always ensure that they have adequate insurance in place to cover personal injury claims and it is important that the level and extent of coverage is properly explained and understood.
Finally, where occupiers are contracting with an organisation to provide services, another available layer of protection is a contractual indemnity. The indemnity would not prevent liability attaching, but it can provide a legal right to insist the indemnifier cover any financial costs incurred, including legal expenses and damages.
Authors
Kate Donachie
Managing Associate, Solicitor
Jennifer McKeown
Solicitor