I signed a disclaimer - Can I still claim injury compensation?

Woman signing a disclaimer form

When participating in activities such as sporting events and exercise classes, you may be asked to sign a disclaimer before taking part. If you were injured, having signed a disclaimer, can you still make a personal injury claim?

Exemption Clauses

'Disclaimers' or 'exemption clauses' are terms that seek to exclude or limit liability. Exemption clauses are common and take many different forms. If, however, the clause hinders the signee in seeking redress from an organisation that has failed in its duty of care, the clause may be considered unfair.

"Do so at your own risk"

The following is a typical example of an unfair exclusion and limitation clause

"You acknowledge that all exercise involves a risk of personal injury, including a small risk of serious injury or death, and agree to take responsibility for your health and well-being in relation to our classes."

"We will not be liable to you in respect of any personal injury (including without limitation serious injury or death) that you may suffer or sustain directly or indirectly as a result of attending our classes. Nor will we be liable to you in respect of any other losses arising as a result of any such personal injury."

Disclaimers like the above example are misleading as they imply that the organiser has no liability for personal injury or death should they occur.

What happens if an accident does occur?

Organisations have a legal duty of care to ensure the safety of those participating in activities, events, and classes or using equipment provided by the organisation. If you are injured as a result of the organisation's failure in their duty of care, they may be considered negligent and a compensation claim may be possible.

The Office of Fair Trading (OFT) states that: "Contract terms, including ‘at your own risk' disclaimers, cannot be used to exclude or restrict an organisation's liability for death or personal injury caused by its negligence."

This means liability cannot be waived, simply because they ask participants to sign a disclaimer stating they know there is a risk in taking part.

Read the small print

The following clause (or words to the same effect) should form part of any disclaimer:

"Nothing in this disclaimer shall: limit or exclude our liability for death or personal injury resulting from negligence; limit or exclude our liability for fraud or fraudulent misrepresentation; limit any of our liabilities in any way that is not permitted under applicable law; or exclude any of our liabilities that may not be excluded under applicable law."

Some disclaimers attempt to limit liability by including a maximum level of compensation payable. Such clauses will only stand up if they are deemed to be reasonable.

The key terms of the disclaimer should be brought to the participant's attention and not buried in the small print.

Have you suffered an injury after signing a disclaimer?

If you have sustained having signed a disclaimer, a claim may still be a possibility. Find out where you stand with a free initial consultation with a solicitor.

What happened?

The compensation claims process will depend on where and how your injury occurred. Click the icons below for more information:

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Gaynor Haliday, Legal researcher

Gaynor Haliday, Legal researcher