"Common risk management tools (that seek to limit liability) are disclaimers, consents and warnings. In this article Ian Fullagar, Rigby Cooke Lawyers, examines these tools and how they can be most effective in protecting the party seeking to rely upon them."

Disclaimers, waivers, consents and liability release forms are common in all areas of life.  They arise predominantly in two areas of the law: tort and contract law.  Waivers and releases are based in contract law.  Where a contract is involved it is possible at common law to insert a clause to waive or exclude liability for negligence provided that:

1. The Clause is incorporated into or forms part of the contract; and
2. It is drafted in such a way that it clearly covers the situation faced by the party seeking to invoke it.

It is not possible to automatically exclude liability for the tort of negligence by use of a waiver, consent, disclaimer of liability or exclusion clause.  The common law imposes a general duty to take reasonable care.  This will depend upon the particular circumstances.  Such a particular circumstance is a disclaimer of liability.  This will be considered by a court when determining liability.  It may also be considered in determining whether a duty of care actually exists in those circumstances.

In any event, it must be stated that release forms do not amount to protection against legal action.  A release or waiver must be drawn to the attention of the persona signing the form - for instance, with bold lettering, rather than being set out in extra fine print on the reverse of the form.  They are unlikely to be effective where the person relying on the release has been found to be grossly negligent.  If that person makes any representation that it does not intend to rely on the release, it is likely that a court will then not allow it to rely on the form to absolve itself from liability.  However, in some circumstances they are effective, and so should be incorporated into standard documentation where there is such documentation.

• is in clear and unambiguous terms;
• enumerates risks; and
• distinguishes assumption of risks and the signed acknowledgment indicating the person recognised the risks,

Minors

It is noteworthy that 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 not effect in excluding liability.  Parental consent to the minor's participation in activities is recommended.  However, a wavier of liability signed by the parent on behalf of the minor may not have any effect in excluding liability.  This remains a difficult area for persons involved in children's activities.  However, it is recommended that the normal forms and parental consents are signed as they make parents and (possibly) children aware of the risks, and ensure that parents are aware their child is undertaking such a risk.

Warnings

Warnings are more directed at the tortious duty of care and usually arise in circumstances where a contract is not available or appropriate.  Warnings are highly appropriate for outdoor recreation activities.  A warning sign by an occupier which tells of the existence of the danger may satisfy the standard of care to go to the discharge of the duty, and thus limit or extinguish potential liability in tort.  Conversely the failure to erect such a sign may lead to a finding of negligence.

Warnings of Natural Area Dangerous Conditions

Warnings have an important role, and on occasion are essential, to remove or limit liability.  The essence of a good warning is communicating the warning to the individual, so that the person will be aware of, and knowledgeable about, the risk he or she is about to undertake and understand its meaning.  Warnings should be obvious and direct, specific to the risk, comprehensible and at the point of hazard.

                                                                    Continued.....