Last updated 25 October 2021
Contracting out of responsibility
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 may interpret any ambiguity in such exclusion clauses ‘strictly’, that is, 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. Provided the clause fully explains the risks of harm that are possible in the sport and notice of the clause is provided prior to the contract being finalised, this should protect a sporting organisation should those risks materialise. However, an exclusion clause will not provide protection where the injury occurred outside of what the clause could have contemplated (e.g. that the sporting organisation had knowingly allowed competition to take place on an unsafe field or knowingly provided defective equipment).
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 might breach s 18 of the ACL. There are also important guarantees for consumers (e.g. s 60 of the ACL provides that services will be provided with due care and skill), which cannot be contracted out of.
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, or an activity that involves a significant degree of physical exertion or risk). Recreational service providers are permitted to 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. However, the exclusion clause will still not protect the provider if their conduct is deemed ‘reckless’ as opposed to merely ‘careless’ (s 139A(5) Competition and Consumer Act).
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 to negligence
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, and include two ‘general’ defences:
- voluntary assumption of risk (which incorporates the legislative notion of ‘obvious risks’)
- contributory negligence (where the injured person failed to take reasonable care of their own safety).
Consent, which may be expressed or implied, also operates as a defence to the tort of battery.
A specific defence that applies to sport is that of ‘dangerous recreational activity’ under s 19 of the Civil Liability Act 2003 (Qld). A dangerous recreational activity is one that is ‘… engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’. If someone is injured from an obvious risk (i.e. a risk that is obvious to a reasonable person in the same circumstances) of such an activity, there is no liability imposed, regardless of whether the injured person was in fact aware of the risk.
Some examples where a court has found an activity to be dangerous include horse racing, white water rafting, skiing and riding a BMX bike at a skate park. Riding a bicycle in a normal way and sports designed to minimise contact, such as Oztag, have been found not to be dangerous.