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Do Liability Waivers Hold Up in Court?

Do Liability Waivers Hold Up in Court?

A liability waiver can protect companies from unforeseeable circumstances. Keep reading to find out if you can still be sued.

27th June 2019
Reading Time: 2 minutes

What is a liability waiver?

liability waiver is a document that contains clauses which reduce the scope of a service provider’s liability. They aim to limit the customer’s rights to sue for damages from harm that they may have experienced. Many individuals believe that signing a liability waiver restricts them from suing a company. This is false because when someone signs this form, they are acknowledging the possibility of harm occurring. They are not committing themselves to the negligence of the service provider if something does go wrong. Therefore, a liability waiver cannot protect you if you are negligent towards children, and grossly negligent towards adults.

When can I use a liability waiver?

Liability waivers can be used in any event that there may be a risk of harm to another person. You should use this document to avoid responsibility for injuries to the customer that occur from your service. Although it can protect your company in some ways, there are a few exceptions.

Negligence

The main exemption to a liability waiver is negligence. It occurs when someone fails to take reasonable care or steps to prevent loss or personal injury to another person. This is when a person has or hasn’t acted in a way that a reasonable person would under similar circumstances. A claim for negligence examines 4 major elements. These include the following:

1. Duty of care

The principle of a ‘duty of care’ is to avoid actions or omissions that cause injuries that are reasonably foreseeable. The court will first determine when a legal duty of care exists. 

2. Causation

This element refers to what actually caused the harm to the plaintiff. In most cases, it is difficult to determine whether the harm is actually as a result of the defendant’s actions.

3. Breach of duty

A breach of duty occurs when the service provider’s actions or omissions fall outside their duty of care.

4. Damages

The damages element examines the monetary loss suffered by the plaintiff. However, in personal injury cases, sometimes the physical injury suffered can be a lot greater than any monetary value.

Include this in your liability waiver

You must ensure that your waiver clearly outlines the scope of responsibility that you are excluding. This document may be in the form of a risk warning. Therefore, it is essential that your terms are straight-forward and unambiguous. They should clearly outline the risks that may arise from the service you are providing. Aside from the waiver itself, make sure that your staff will act professionally and that your equipment is well maintained. Your waiver can only protect you from unforeseeable events that did not result from your company’s acts or omissions.

Final Thoughts

Liability waivers allow you to protect your company from unforeseeable situations that may harm another person. However, you cannot use this document in cases where you or your staff have been negligent to your customers. The concept of negligence can be complicated and hard to prove. If you are worried that your waiver cannot protect you, contact a negligence lawyer for further assistance.

Don’t know where to start?
Contact a Lawpath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Author
Aditi Ramesh

Aditi currently works in the Content Team as a Legal Intern for Lawpath. She is in her third year of a Bachelor of Law and Bachelor of Commerce (Accounting) at Macquarie University. She is particularly interested in Property and Criminal Law.