Claiming compensation for injury after signing a waiver
Whenever you do anything fun these days, you usually have to sign a waiver. This includes going to a theme park, public pool and kids playground. Also when you join a gym or enter a shopping centre – there are waivers everywhere.
A common question we’re asked at Main Lawyers is ‘If I sign a waiver, can I still claim for compensation if I get injured?’ The short answer is yes, you may still be able to claim compensation, depending on the situation.
There is a common misconception that, by agreeing to a waiver to do an activity or enter a commercial premises, you’ve signed away your legal options if you suffer a serious injury while you’re there. But that’s not necessarily true.
Below we’ll explain more about what a waiver actually is, as well as when you may have a claim and what you can claim for.
However, the laws around waivers are quite complex, so we also recommend getting help from an expert in personal injury law if you do get injured after signing a waiver. Every situation is different and this is only general advice.
What is a waiver?
Basically, a waiver is a legal contract between you and the person or organisation running an activity or business.
You may or may not actually sign a waiver. Sometimes you may sign a physical contract with a waiver, such as when you join a gym. Other times, the waiver is written on an event ticket or signage out the front of the premises, such as at a theme park.
It usually says that you enter and participate at your own risk, and that you understand those risks and won’t hold them responsible if you get injured. If the waiver is on signage or your ticket, you are assumed to have agreed to those conditions the moment you enter the premises or participate in the activity.
Is a waiver legally binding?
During the pandemic, doctors have seen many patients who’ve broken bones while working from home. This includes fractures in ankles, wrists, arms and feet. Occasionally, they have seen more serious cases, like head and facial fractures.
This type of injury could prevent you from earning a living, so it’s essential to minimise the risk of trips and falls to keep your home workplace safe.
As in your usual office, stair, rugs and electrical cords are a common risk for trips and falls. People also trip over boxes, folders and other items left in the way.
Your employer must work with you to assess and minimise any trip and fall risks in your home office setup to keep you safe while you move around during your work day.
When a business might be liable despite a waiver
Even after agreeing to waiver conditions, you might be able to able to claim compensation if the organisation breaches its duty of care. For example, if you get hurt because of something unreasonable that someone did or didn’t do, and it was obvious that the risk was there and you could get hurt.
Basically, a reasonable person would know that something was a risk and yet the organisation didn’t take steps to prevent it happening. For example, if untrained staff are running risky activities or unsafe equipment is being used, a waiver may not protect them.
If you’re injured due to the usual risks associated with an activity, rather than negligence, you may not have as much success with a claim. Additionally, anything you did that led to or exacerbated the injury could reduce your right to compensation.
However, you should never assume you can’t make a claim. Every situation is different and all the details of the accident need to be analysed. At Main Lawyers, we can look at your situation and tell you whether you have a case.
Not understanding a waiver
It’s also very important that you can understand the waiver you’re agreeing to. To be valid, a contract’s wording needs to be very clear and specific so everyone understands the agreement.
So an organisation that asks you to sign a waiver must make an effort to check that you know the risks before you sign.
If the wording is confusing, unclear, badly worded or has other problems – so you’re not really sure what you’re agreeing to – a court might decide that the waiver isn’t legally binding.
What can you claim for?
Businesses, like shopping centres, and activity organisers usually have public liability insurance, which covers them for financial losses if a member of the public claims compensation for an injury or property damage while on their premises or in their care.
Depending on the circumstances of your injury, you may be able to claim for:
- medical expenses, rehabilitation and treatment costs
- lost earnings, both past and future
- pain and suffering
- domestic help that you need to pay for while you recover.
Generally, you first need to prove that the business had a duty of care towards you. Then you need to prove that they failed in that duty of care – they didn’t ensure your health and safety. For example, they may left boxes or other obstacles on the floor in a doorway, which caused you to trip over.
You also need to prove you were injured or suffered a loss as a direct result of their failed duty of care.
As well as proving the business owner was at fault, you need to show that you couldn’t have reasonably prevented the incident yourself – and that you didn’t cause the incident through your own negligence.
The amount of compensation you could receive will depend on many factors, including:
- the wording of the waiver you agreed to
- whether they breached a duty of care or were negligent
- the extent of your injury
- the extent to which you were negligent (if at all)
- how your injury or loss has and will change your life.
What if they don’t have insurance
In Queensland, it’s not compulsory for businesses to have public liability insurance.
However, some industries do require it for licences and some commercial landlords require it before signing a lease. Also, event venues may require event organisers to have adequate public liability insurance to hold their event on the premises.
So the business or activity organiser responsible for your injury may or may not have insurance to cover them – or adequate cover.
If this occurs, you can still claim compensation under public liability law. But the business or organiser will need to pay costs out of their own pocket – such as profits or savings.
What to do if you’re injured
If you suffer an injury after signing a waiver, get medical attention immediately. Tell the doctor what occurred so they can make a record of it. Keep any medical records, x-rays and receipts for your treatment.
You should also:
- keep a copy of the waiver that you agreed to, as this will be essential in proving your case. If the waiver was on signage, get a photo of the sign
- make a written record of what occurred, including any response you received from the business
- get statements from witnesses and photos, particularly photos of the injury and the location where you were injured
- report the incident to the business where you were injured and keep all records of your communication with them.
Time frames for getting compensation
Every claim is different, but it can take months to get compensation in a personal injury case. The more complex the case or severe your injury or loss, the longer it could take. When we know more about your case, we can give you an estimated time frame.
You also need to make sure you meet the time frames for making a claim. In Queensland, you have three years from the date of the injury or loss to make a claim for public liability compensation. So it’s best to get in touch with a personal injury lawyer as soon as possible so you can get the advice you need.
Getting legal help
If you believe you have a case for compensation for injury or loss – even after signing a waiver – schedule a meeting with a personal injury lawyer as soon as possible. You can usually get an initial consultation for free, such as with Main Lawyers. We can even come to you in Brisbane, on the Gold Coast or in Northern NSW if you’re injured or unable to get to us.
We will listen to the details of what occurred, examine the available evidence and check out the business or organiser ourselves. Then we will have a good idea whether the waiver is legally binding or you can claim compensation.
We also have a ‘No Win, No Fee’ policy, so you don’t pay legal fees unless your case is successful and you receive compensation. We can discuss that with you at your first appointment.
Is it time to get legal help?
Never assume that you can’t claim for injury or loss just because you signed a waiver. An expert at Main Lawyers can tell you for sure.
Our personal injury lawyers offer a free, no-obligation discussion with you to hear all the details and tell you whether you have a case. Contact us to learn more.