The recent Titan submersible tragedy has brought into focus the use of disclaimers of liability for personal injury or death of participants in risky activities.
Most people will have signed a disclaimer of liability of some sort and perhaps without a great deal of thought. From the perspective of a company presenting a disclaimer to a customer for approval and signature, it is important that the customer does give some thought to the waiver of their liability so that the company can then rely upon it.
Contrary to common perception a signed disclaimer of liability is not a silver bullet to absolve a business of all liability to customers.
Disclaimers, like other terms in consumer contracts, are subject to strict statutory controls. Any attempt to exclude or limit liability for personal injury or death caused by negligence will be ineffective, and any other attempt to exclude or restrict liability will only be effective if it is “fair”. For this reason, disclaimers need to be carefully drafted to try to maximise their scope but without being so broad as to be unfair.
A company, therefore, needs to look carefully at the risks inherent in the activities that its customers are participating in. A well-drafted disclaimer should then be written in clear, understandable language, signalling the dangers involved to customers and highlighting the extent of their rights. It should also explain how the company is seeking to limit its liability against those rights so that the customer can make an informed decision, firstly as to whether to participate and secondly as to whether to give up those rights.
As well as obtaining an effective disclaimer, a business needs to carry appropriate insurance against personal injury, death, or damage to property. We recommend that a copy of any form of disclaimer that a business intends to use is provided to an insurance broker for approval and that, to the extent possible, any gaps in liability are covered or at least identified and acknowledged so the risk can be managed. A form of disclaimer should be reviewed regularly and updated where necessary to address any previously unforeseen risks.
To speak to a specialist regarding the drafting of a disclaimer of liability, or to settle a dispute over liability, please get in touch with our commercial law team at Farleys on 0845 287 0939 or contact us by email.