Excluding Liability for Death and Injury (2025 Updated)

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Many recreational service providers, including gyms and rock climbing centres, offer their customers opportunities to participate in activities that have the potential to cause injury or even death. As the industry has evolved into 2025, these businesses must not only focus on delivering engaging experiences but also ensure their legal protections and risk management strategies are up to date with the latest standards and regulations.

If you provide recreational services, you’ll need to ensure your terms and conditions adequately cover the risks associated with your activities. Not only does this protect your business, but it also clarifies your obligations to your customers. For guidance on drafting comprehensive agreements, check out our article on website terms and conditions.

Failing to update your legal documents increases the chance of facing costly litigation and significant financial liability. With new case law and legislative changes apparent in 2025, a carefully drafted exclusion clause has never been more important.

Well-drafted clauses in your business’ terms and conditions can exclude—or at least limit—your liability for death and injury in many circumstances. However, they must be constructed in accordance with both the Australian Consumer Law (ACL) and the prevailing Civil Liability Acts across the states and territories.

That said, incorporating an exclusion clause correctly remains challenging as laws continue to evolve. Ensure that your phrasing is precise, and be aware that even minor errors could compromise the protection intended. For insight into what makes a contract legally binding, our guide on contractual obligations is a great resource.

Before you add any exclusion clauses into your business’ terms and conditions, it’s important to understand what they are and how they can protect you. This foundational knowledge is essential for ensuring you’re not leaving your business exposed to unnecessary risks.

What Is An Exclusion Clause?

An exclusion clause is a contractual provision that can limit or fully exclude your liability if something goes wrong while a customer is using your service. In essence, it is designed to allocate risk between you and your clients.

These clauses often appear in standard customer contracts and are particularly common in the terms and conditions of recreational service providers. For further examples of how to structure these clauses, take a look at our detailed discussion on setting out good business terms and conditions.

However, incorporating an exclusion clause is not always straightforward. The complexity arises from the need to comply with the nuanced interplay of the ACL, negligence law, and the varying statutory defences contained within each state and territory’s Civil Liability Act.

In Australia, this complexity is further compounded by the interaction between the law of negligence, updated provisions under the ACL, and the individual Civil Liability Acts (CLAs) across jurisdictions. Recent interpretations in 2025 underscore the importance of precise drafting in order to secure the intended legal protections.

Negligence

Negligence continues to be one of the most challenging areas of law to navigate. As a recreational service provider, you owe a duty of care to your clients to ensure that your services meet a reasonable standard of care and skill.

If you draft your contracts correctly, you may be able to exclude liability for acts of negligence. However, if your actions also breach a consumer guarantee under the ACL, the exclusion may be rendered ineffective. For updated guidance on addressing these issues in 2025, see our article on compliance with consumer guarantees.

Generally speaking, if you can lawfully exclude the consumer guarantees under the ACL, you will also limit your liability for negligence. It is imperative, however, to obtain tailored legal advice to ensure your exclusions are enforceable and compliant with current law.

Australian Consumer Law

The ACL provides consumers with automatic rights through a set of ‘consumer guarantees’ that ensure services are delivered with due care and skill. In 2025, these guarantees have been further refined to enhance consumer protection without necessarily stripping providers of all liability.

Under the ACL, your business is responsible for ensuring that the recreational activities you offer are safe and performed with proper care. If an injury occurs due to negligence, the injured party may have grounds to sue if the consumer guarantees are not met.

While consumer guarantees are generally non-excludable, recreational service providers do have a limited ability to exclude their liability for injury or death, provided the exclusion is carefully worded. For an in‐depth look at this, our article on what regulations affect your corporation offers useful insights.

Bear in mind that you cannot exclude liability for recklessness or for ancillary services—such as paid locker facilities at a gym—that fall outside the core recreational activity.

The Civil Liability Act

Every State and Territory in Australia has its own Civil Liability Act (CLA), which outlines the framework for civil liability. Updated amendments in several jurisdictions for 2025 provide clearer guidelines for recreational service providers seeking to limit their liability.

These Acts may have a significant impact on your business operations. In some areas, you might be able to exclude liability by incorporating a well-drafted risk warning within your contracts. For an overview of how risk warnings work, our discussion on effective contract drafting can prove beneficial.

For example, under Western Australian legislation, a risk warning must be delivered in a manner reasonably likely to alert consumers to the inherent risks before they engage in the activity. Recent case law in 2025 highlights the need to carefully assess both the nature of the risk and the relevant statutory requirements before drafting such warnings.

Given the constantly evolving legal landscape, it is essential to review and update your contracts regularly. A periodic legal health check can help ensure your documents remain compliant with the latest standards and provide you with the necessary protections.

What To Take Away…

In summary, as a recreational service provider in 2025, it is essential to understand the intricate balance between protecting your business and upholding consumer rights. Exclusion clauses can help limit your liability for death and injury, but they must be meticulously drafted to comply with the ACL and the relevant Civil Liability Acts. If you need assistance reviewing or updating your legal documents, feel free to contact our team at team@sprintlaw.com.au for expert guidance.

Esha Kumar

Esha is a law graduate at Sprintlaw from the University of Sydney. She has gained experience in public relations, boutique law firms and different roles at Sprintlaw to channel her passion for helping businesses get their legals sorted.

Vladimir Kravchenko

Vladimir is the Legal Team Leader at Sprintlaw. He has experience advising SMEs and startups across a range of industries in commercial contracts and regulatory advice.