If you’re into organised physical activities there’s a good chance you’ve probably been made to sign a waiver before taking part, writes Catriona Headley, Partner at Digby Brown.

Lots of activities, particularly of the sporting or adventure variety, involve a degree of risk. (For many the risk is what makes them want to take part in the first place!)

I feel like this is important to talk about because of the volume of people I’ve spoken to who assumed they’d forfeited their rights after signing that jargon-filled piece of A4.

So right now I’d like to offer some simple assurance and advice – these waivers are worthless.

Why are waivers worthless?

They lead too many people to believe they have signed away all and any rights if things go wrong. Customers, patrons, guests etc are too often left with the wrong belief that they have no right to compensation if they are hurt, or even die and this is not true!

For almost 50 years the law has been very clear that any agreement which attempts to exclude or restrict liability for breach of duty of care which leads to death or personal injury, shall be void.

We can even consider the definition of a waiver to work out where people might stand. For example, the Collins English Dictionary defines a ‘waiver’ as:

  • the voluntary relinquishment, expressly or by implication, of some claim or right
  • the act or an instance of relinquishing a claim or right
  • a formal statement in writing of such relinquishment

This is a useful litmus test but, arguably, what actually needs to be considered is Section 16 of The Unfair Contract Terms Act 1977. The exact wording of this rule states:

“Where a term of a contract or a provision of a notice given to persons generally or to particular persons, purports to exclude or restrict liability for breach of duty arising in the course of any business… shall be void in any case where such exclusion or restriction is in respect of death or personal injury.”

What does this mean for you?

The upshot of all this is it means if you are hurt during an activity that is overseen by another person or company then you do still have a right to claim compensation – even if you signed a waiver.

The only thing you need to worry about is being able to show that your accident and your injury was the result of someone else’s negligence – but this is true for any personal injury claim.

If you were injured because you crashed at a go-karting centre due to a fault with the go-kart then you might be eligible for an occupier’s liability claim.

If you were hurt during a rafting activity which was organised by your employer as part of a team building day, then the waiver is pointless and you could probably make a workplace accident claim.

The type of claim isn’t important. The important part is knowing one simple truth:

You are allowed to seek legal advice if you have been hurt because someone else was negligent.

This is why those A4 sheets mean nothing. Because businesses that host activities (even risky activities) still have a duty of care for people. They still have a duty to maintain their equipment. They still have a duty to conduct risk assessments and address gaps in safety.

Some argue waivers do have a purpose – that they inform people of risks. But it is possible to inform without also misleading. Safety briefings and signage for example…

I think action should be taken at a legislative and regulatory level to ban so-called ‘waivers’ which essentially undermine the rights of victims of negligence. Even simply changing the paper to a ‘risk acknowledgment form’ would be a start.

Waivers won’t protect negligent organisations and they shouldn’t be used by responsible ones.

So the next time you are asked to sign a waiver you can do so safe in the knowledge that if the owner/business does something wrong then you can still take action.

You have not forfeited any rights. You can seek legal help. And you can recover compensation.