Disclaimers, waivers, consents and warnings

It is not possible to automatically exclude liability from the tort of negligence by use of a waiver, consent, disclaimer of liability or exclusion clause. Common Law imposes a general duty to take reasonable care. The extent of the duty will depend upon the particular circumstances, and a disclaimer of liability (and whether signed) is one relevant circumstance which would need to be considered by a Court when determining liability. It may also be considered when determining whether a duty of care actually exists in those circumstances.

Such clauses must be specifically drafted to suit the circumstances at hand. They should not be borrowed from another context, as this may mean they do not adequately cover the specific issues. An inappropriate clause may result in the possibility of liability being greater. Waivers and releases are based on contract law. They must be drawn to the attention of the person signing the form. They are unlikely to be effective where the person relying on the release has been found to be grossly negligent. In some circumstances however they have been held to be effective and so should be incorporated into standard documentation.

Minors

Contracts may not be enforceable against minors in many circumstances. Generally minors do not have capacity to enter into contracts and accordingly waiver forms signed by minors may have no effect in excluding liability. A waiver of liability signed by the parent on behalf of the minor may also not have any effect in excluding liability.

Warnings

Warnings are more directed at reducing or eliminating a person’s duty of care and usually arise in circumstances where a contract is not available. A warning sign by an occupier which tells of the existence of danger may satisfy the standard of care or go to the duty of the discharge, and thus limit or extinguish potential liability in tort. Conversely the failure to erect such a sign may lead to a finding of negligence. Australian cases relating to warning signs include: Harper vs Department of Conservation, Forests & Lands, Victorian County Court May 1998, unreported; Nagle vs Rottnest Island Authority 1993 (177CLR423); Romeo vs Conservation Commission of the Northern Territory 1998 CLR.