Legal Ppinion Regarding Liability Waiver Writing Assignment (Essay Sample)

27 April 2016
Lawyers
Suite 10A, World Tower
42 George Street
Sydney NSW 2000
Tel: 9685 8908
Fax: 8979 0987
Mr. Jackson StonesDirector of Australian Adventure ClubSuite 2B, Castlereagh Centre
198 Castlereagh Street
Sydney NSW 2000
Re: Legal Opinion on Validity of waiver clause
Dear Mr. Stones,
I am writing in response to your earlier request for an opinion about the validity of the liability waiver which was drafted with respect to the upcoming Winter Mega Super Ultra Whatnot Event hosted by Australian Adventure club.
Having clearly examined the contents of the liability waiver presented to us, I am convinced that the main issue at hand is to evaluate whether the document gives the club full indemnity from liability that may accrue to any persons who will participate in the event.
The Civil Liability Act 2002 (NSW) is the legislation that governs the aspect of how damages might be recovered as a result of death or personal injury which is actuated by an act or omission of a person. In this statute, recreational activities are provided for in Division 5 of the Act and particularly section 5N of the Act provides a framework of waiver for recreational activities. In addition to this Act, there are other areas of law that ought to be invoked. There is the tort of Occupiers’ Liability and the general law of exemption clauses in a contract. Many cases have been decided in NSW court regarding matters of contractual waivers and I will endeavour to ascertain the position of this particular one.[Civil Liability Act 2002 (NSW).] [Ibid pt 1A div 5.]
In the ancient contract law case of Olley v Marlborough Court Ltd, the applicability of an exclusion clause was rejected because the terms were hanged on the walls in the guest rooms where clients could only reach after agreeing to the main contract at the reception. This position has been recently reiterated in Alameddine v Glenworth Valley Horse Riding Pty Ltd & Another, the Court asserted that a contract is made once the customer contacts the provider of recreation activities, and at this point is when they should be informed of the exclusion clause if the provision is to be construed to be part of the contract.[[1949] 1 KB 532.] [(2015) 324 ALR 355.]
Further to this, the case of Falvo v Australian Oztag Sports Association added more principles to the question of liability in recreational facilities. In this case, the Court was faced with determining if Oztag was a dangerous recreational activity and if it could be covered by the waiver of liability as contemplated by section 5G of the Civil Liability Act 2002 (NSW). It was held that the sport involved a significant risk of occasioning insignificant harm and therefore it could not be categorized among the obvious risks that a customer has to be aware of. The Court was also of the view that a recreational activity provider can be liable if the risk posed to the claimant is not a direct result of inherent recreational activity.6 In a bid to have an effective liability waiver, the recreational service provider must make clear illustrations of the clauses so as to leave no ambiguity to the person construing the waiver.[[2006] NSWCA 17.] [Ibid [23]]
Also, in the case of Stewart & Ors v Ackland the Supreme Court of the Australian Capital Territory asserted that a risk of catastrophic occurrences alone cannot lead to an interpretation that a recreational activity poses a danger to customers. It is thus prudent to assess the propensity of the injury or loss occurring from a lens of the state of affairs before the recreational activities took place. In this case, the respondent had twisted his neck while doing backflips within the appellants’ premises and the court had to determine whether the activity he engaged in was dangerous. It was also observed that recreational service providers ought to deliver a detailed risk warning detailing the dangers of each activity within the premises.[Ibid [27]]
The matter of liability has also been widely dealt with under Occupiers’ Liability law. Occupiers’ liability is not only a Common Law principle; it has also been codified in law by many States in Australia. This tort apportions liability to persons who own premises and leaseholders for injuries or accidents that may occur to visitors or trespassers. This principle was developed in Australian Safeway Stores Pty Limited v Zaluzna where the Judges pronounced that it does not matter whether the victim was a trespasser or a licensed entrant; what the courts should consider is whether it was objectively forseeable that the entrant would face certain dangers resulting from the conditions of the premises.[(1987) 162 CLR 479.] [Ibid [12].]
It is essential that first, before AAC considers putting down a liability waiver, they first thoroughly inspect their premises so as to ascertain what can be categorized as obvious dangers. If a claimant institutes proceedings against a recreational Service Provider under the auspices of an activity which is generally considered an obvious danger, t...