Waivers: not worth the paper they are printed on

Have you ever been mountain biking on a work away day? Taken a child to a trampoline park? Done a sky dive for charity?

If you’ve done any of these things you will in all likelihood have been handed a piece of paper filled with legal text and asked to sign it before starting – as you may be aware this is commonly called a ‘waiver’.

Before I go any further, let me make this clear: many activities, particularly of the sporting or adventure variety, involve a degree of risk. In fact, as many people know, it’s the risk that draws us to these activities in the first place. The Courts have long-recognised the “social value” of such activities which involve an inherent risk of injury or serious accidents happening.

But the number of clients I have spoken to over the years who have said ‘I didn’t think I could make a claim because I signed a waiver’ tells me this is a significant legal and consumer rights issue – because the reality is that waivers are one of the most misleading legal documents you will come across!

So how are waivers misleading?

It’s simple – waivers give members of the public the impression that no matter the circumstances, they agree to literally sign away any rights to compensation in the event they are injured, or even die.

But 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.

Now, many people might simply consider the definition of a waiver to work out where they stand. For example, the Collins English Dictionary defines a ‘waiver’ as:

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

What actually needs considered is Section 16 of The Unfair Contract Terms Act 1977 which in crystal clear terms 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?

It means that if you are hurt – even after signing a waiver – you still have a right to make a claim if negligence can be established.

Now, if there is no negligence then there can be no claim – but this is true of any personal injury action! This is why signing those pieces of A4 on a clipboard mean nothing.

Some argue waivers still serve a purpose, that they provide the public with important awareness of the risks they’re about to take part in. But there are many ways to inform people of risks without potentially misleading them in the process. Good practice could involve simple safety briefings, even if they are provided verbally or via posters or signs.

Even simply changing the name of these documents from ‘waiver’ to a “risk acknowledgement form” (as I have seen in some places) is arguably a more honest – and legal! – approach to take.

To make sure people are aware of their rights I think action should be taken at a legislative and regulatory level to ban the use of documents titled ‘waivers’ which explicitly or implicitly undermine the legal rights of victims of negligence.

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

So the next time you are presented with a clip board and asked to sign a document before you can participate in an activity, you can do so safe in the knowledge that if you are injured due to negligence then that piece of paper is utterly worthless.

You have not forfeited your legal rights. You are allowed to seek legal help. And waivers cannot prevent rightful compensation.

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Catriona Headley, Partner

Edinburgh Office