Disclaimers – do they prevent the right to claim compensation?

 What is a disclaimer?

Disclaimers are used to provide a warning to people they are designed to make sure that people are made aware of foreseeable risks of injury, or where responsibility will rest if items are lost, broken or stolen. Often when we take part in a potentially dangerous activity, the organiser will ask the participants to sign a disclaimer to confirm that they are aware of the risks the activity presents.

 

Reduction of risk, not responsibility

Making sure that people appreciate certain dangers and that risks are understood is a good thing. We all want to reduce the risk of injury, damages, etc. and see less accidents happening. When people know what the risks are, they are minded to act safely and follow instructions carefully. Even with obvious risks, we benefit from being reminded.

Disclaimer should only be seen as a warning, rather than a prevention of any liability whatsoever and used to make sure that when the instructions in any disclaimer have been followed, the risk of injury, damages, etc. should be minimised.

 

Negligence and breach of contract override any disclaimer

The provision of a disclaimer sign or notice, or being required to sign a disclaimer before taking part in an activity, does not absolve the organisation in question from being liable should someone then go on to sustain an injury as a result of their negligence or as a result of a breach of their contractual obligations – this was confirmed by the First Hall of the Civil Court in a judgement given in 2019 in case number 663/2012GM.

When it comes to personal injury compensation, a disclaimer will be worthless if the people making it have failed to ensure that they have adequately prepared for the risk, or failed to provide the correct equipment, guidance, etc. needed to minimise the risk of injury.

The responsibilities to ensure that equipment is appropriate in the circumstances, correctly maintained, properly serviced, risks adequately assessed, safety equipment provided and that hazards are properly marked and removed where possible, remain regardless of whether or not a disclaimer is signed or displayed. In cases where someone is injured when a business or organisation has failed in any of these areas, liability is likely to attach to that organisation and a claimant will have a strong prospect of succeeding with a claim for personal injury compensation.

On the other hand, if someone has been made fully aware of the normally inherent risks of an activity and given very specific safety instructions to follow in a disclaimer, and they then chose to ignore that warning and suffer an injury, insofar as the provider who has given the disclaimer has acted with the required prudence and diligence, the injured person would generally not have viable grounds to pursue a claim for compensation as they have failed to heed the adequate warnings given to them.


A disclaimer is not an automatic absolution from responsibility 

It is important to note that giving a disclaimer does not absolve anybody from the responsibilities that they and any business faces with regards to health and safety. Simply displaying a warning sign doesn’t mean they don’t have to make sure their premises and the items which they sell are safe for use. A correctly worded disclaimer can however go a long way to minimising inherent risks.

 

N.B. The information provided herein does not constitute legal advice. For further information, please feel free to call +356 99491230 or send an email to avukatdemaria@gmail.com.

 

www.demaria-law.com

 

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