Last updated 30 April 2026

Contracting out of responsibility

Waivers, indemnity or exclusion clauses abound in contracts, but in many cases they actually provide little if any real protection for the person relying on the clause at common law. In practice, courts may interpret any ambiguity in such exclusion clauses strictly, that is, against the person seeking to rely on the clause.

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, the sporting organisation should be protected 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, such as s 60 of the ACL, which provides that services will be provided with due care and skill. Normally these guarantees cannot be contracted out of with an exclusion clause.

However, this is not the case for providers of ‘recreational services’ (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).

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. Alameddine v Glenworth Valley Horse Riding illustrates the complexity of drafting such clauses. Although the defendant quad-bike tour company had an exclusion clause, the court interpreted it strictly. The clause sought to exclude liability for “any injury whatsoever”, whereas the Competition and Consumer Act only permits exclusions for death or personal injury. The court therefore read the exclusion clause as going beyond what was permitted by the Act and therefore void. It did not protect the company, even though the plaintiff had suffered physical injury.

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 the Civil Liability Act 2003 (Qld). In Queensland, a dangerous recreational activity is one which 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.

It should be noted that not every state or territory has a ‘dangerous recreational activity’ provision, and of those that do, they are not consistent, particularly in whether professional sport can be brought within the defence.