Can I Sue if I Signed? – Waivers, Personal Injury Claims and Extreme Sports.

Have you been known to engage in extreme sports or adventure activities? If so, you would be forgiven if you thought that signing a waiver or consent form before-hand discharges your host from responsibility for any injuries you sustain in the course of the activity. However, in the wake of two former trampoline park bosses being charged with health & safety offences it is important to understand that signing a waiver does not prevent a person from claiming compensation where the venue or event holders are found to have been negligent.

What is a waiver?

Many will be familiar with being asked to sign a waiver or consent form prior to being able to, for example, taking part in a sporting event or adventure activity, or having a day out at an adventure park. The purpose of this document is to make sure you understand and acknowledge that there are risks of injury associated with the activity, which you may not have already appreciated as an inherent risk of sports or physical activity. However, a waiver does not remove an individual or business’s duty of care to ensure that you are not unnecessarily exposed to risks that might harm you.

Why do they ask me to sign it then?

There is an inherent risk in any sporting or physical activity and not all times you suffer injury will it be someone else’s fault. By way of example, if you attend a trampoline or adventure park and exercise beyond your capability causing muscle strain, you likely have acknowledged the risk of this injury as part and parcel of the experience under the waiver and as such will probably not be able to claim against the park for this, provided the injury was not their fault. However, if the trampoline park is over-crowded and unsupervised, the equipment faulty, and staff have no health and safety training, and you sustain an injury because of any one of these things, the park may have breached its duty of care and could still be found negligent, regardless of whether a waiver has been signed or not.

One of the main reasons why you are often asked to sign a waiver prior to completing an activity is for confusion and prevention, as most people think that once they sign the waiver they cannot bring a claim. However, any terms within the waiver or contract attempting to exclude liability for personal injury or death resulting from negligence are in fact unenforceable. If you are in doubt about whether an individual or business is at fault, you should speak with a personal injury lawyer.

What is the law about waivers?

Under the Unfair Contract Terms Act 1977 (“UCTA”), you cannot by reference to any contract term or to a notice given, either generally or otherwise, exclude or restrict liability for death or personal injury resulting from negligence. It should be noted that an individual or business must have caused you injury as a result of their negligence in order to bring a successful claim, but this will come as a surprise to many. The Act applies to both individual persons and businesses and will, for the most part, render any such term void. Further, a person who has agreed to this exclusion cannot, by reason of their agreement alone, be said to have knowingly and voluntarily assumed risk.

What now?

Following an investigation of 270 incidents over a seven week period, the former bosses of Flip Out Chester have pleaded guilty to health and safety offences. This illustrates that, whilst places of high intensity activity are never going to be completely risk-free, this does not absolve venues of their duty to ensure risks are mitigated and their customers protected.

If you or a loved one have sustained an injury in circumstances like these, we understand what a difficult time this must be for you and how the prospect of claiming against large organisations can be intimidating. Should you wish to discuss an injury you think may have been sustained through negligence, please contact our experienced team for more information.

You can read more about the Flip Out cases here and here.

For more information about trampolining injuries, please see our previous blog: What Goes Up Must Come Down: The Reality of Trampolining Incidents.