Last updated 16 August 2016

Waivers, indemnity or exclusion clauses abound in contracts, but in most cases actually provide little if any real protection for the person relying on the clause at common law and are often seen by courts as being attempts to circumvent legal duties and responsibilities. In practice, courts tend to interpret such exclusion clauses strictly against the person relying on them.

Courts will, however, uphold indemnity or exclusion clauses when they are easily understood and not ambiguous in any way, well known by the people they may affect and cover the incident that causes the injury.

In addition sch 2 of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) contains the Australian Consumer Law (ACL) and deals with various aspects of consumer protection. If an exclusion clause is likely to mislead or deceive, then it would breach s 18 (and probably s 29) of the ACL. However, there is also protection available to recreational service providers under the ACL (i.e. providers of services which consist of participation in a sporting activity or similar leisure time pursuit that involves a significant degree of physical exertion or risk, although it probably does not extend to extreme adventure sports). Recreational service providers can limit their liability for death or personal injury caused by their failure to provide services with due care and skill under s 139A of the Competition and Consumer Act by the use of an exclusion clause, which would otherwise be void under s 64 of the ACL.

Notwithstanding the protection available under the ACL to recreational service providers, if a sporting organisation wishes to have an indemnity or exclusion clause for any reason, it should consult a lawyer to draft the clause.

Defences

Even if a breach of duty is proven and loss or damage occurs as a result, the defendant can still evade liability partially or fully, by successfully proving one of the defences to negligence. These defences are detailed in the Accidents and Injury chapter.