Excluding Liability For Death And Injury: What Australian Businesses Can And Can’t Do

If you run a business in Australia, managing risk is part of everyday life. It’s common to ask whether you can “sign away” responsibility using a disclaimer or waiver - especially if you offer anything hands-on, physical or higher risk (think gyms, adventure sports, classes, events, or even equipment hire).

But there are hard legal limits around excluding liability for death or personal injury. Some exclusions are permitted in narrow circumstances; others will be void, or even unlawful. Understanding the difference is crucial so you can protect your business without crossing legal lines.

In this guide, we’ll explain when liability exclusions are allowed under Australian law, how to draft risk management clauses that stand up, and practical steps to reduce your risk beyond the contract.

Why Do Businesses Try To Exclude Liability?

Exclusion clauses aim to limit your legal responsibility if something goes wrong. They’re usually found in customer terms, booking forms, membership agreements, online checkouts and signage.

Typical goals include:

• Setting expectations about risks customers accept (e.g. participation involves physical exertion).
• Limiting the types of losses you’ll cover (for example, excluding indirect or consequential loss).
• Capping your overall exposure through a well-drafted Limitation of Liability clause.
• Recording that a participant understands and accepts specific risks - often via a signed Waiver.

These tools can be effective, but only within the boundaries of the law. The big question is how these boundaries apply to death and personal injury.

Can You Exclude Liability For Death Or Personal Injury In Australia?

Short answer: sometimes, but not always - and never for everything. Australian law sets out non‑negotiable protections for consumers, along with targeted carve‑outs for recreational services. Here’s how the key rules work.

Consumer Guarantees Under The ACL

The Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010 (Cth), gives consumers non‑excludable guarantees. For services, that includes a guarantee that services will be provided with due care and skill and be reasonably fit for purpose.

Section 64 of the ACL says you can’t contract out of these guarantees for consumers. Attempts to fully exclude liability for your failure to use due care and skill will generally be void. You can, however, use a carefully drafted Limitation of Liability clause to manage and cap certain risks in compliant ways.

Recreational Services Carve‑Out

There is a specific and important carve‑out for “recreational services”. Section 139A of the Competition and Consumer Act allows a supplier of recreational services to exclude liability for the consumer guarantees in relation to death or personal injury arising from the supply of those services - but only if the exclusion meets strict wording and form requirements, and subject to any state or territory laws.

Key points to remember:

• The term “recreational services” is defined and typically covers participation in a sport or a recreational activity, or similar leisure pursuits.
• Exclusions cannot cover reckless conduct. If your conduct shows a “conscious and unjustifiable disregard” of risk, you can’t contract out of it.
• States and territories have their own civil liability legislation that interacts with this carve‑out. The permitted wording and effect can differ across jurisdictions.

This is where precise drafting matters. If “recreational services” describes your offering, using a purpose‑built Waiver with the right statutory language is essential.

Negligence And Duty Of Care

Even with a waiver, you still owe participants a duty to take reasonable care. You generally cannot exclude liability for negligence that amounts to reckless conduct, and you must still follow safety standards and foreseeable risk controls.

In practice, that means safety systems, staff training, equipment maintenance and prompt incident response are just as important as your contract wording. A clause won’t rescue you from poor safety practices.

Work Health And Safety (WHS) Obligations

WHS duties are non‑delegable. You can’t shift them onto staff, contractors or customers through a contract or disclaimer. If you control a workplace or the way work is carried out, you must ensure, so far as is reasonably practicable, the health and safety of workers and others.

Unfair Contract Terms (UCT) Regime

The ACL’s Unfair Contract Terms regime applies to standard form consumer and small business contracts. Clauses that seek to broadly exclude or limit liability can be unfair if they cause a significant imbalance, are not reasonably necessary to protect your legitimate interests and would cause detriment if relied on.

Since late 2023, unfair terms are not only void - penalties can apply. If you use standard form contracts, it’s smart to get a UCT Review and Redraft to ensure your exclusions and caps are proportionate and enforceable.

Drafting Risk Management Clauses That Actually Work

Once you know the legal guardrails, you can draft terms that are more likely to hold up. Here are the core building blocks most businesses consider.

1) Clear Risk Warnings

Give participants clear, specific warnings about the nature of the activity and the inherent risks. Avoid vague, catch‑all statements. Good risk warnings support informed consent and reduce surprise, which helps your overall position.

2) Tailored Waivers (If You Provide Recreational Services)

If your services are recreational, a tailored waiver can exclude liability for death or injury to the extent permitted by section 139A and relevant state laws. The waiver should:

• Use the required statutory wording for your jurisdiction.
• Be prominent and easy to understand (plain English, large enough font, clear structure).
• Be accepted effectively (signed, initialled, or affirmed via clear clickwrap online).

Make sure your team consistently uses the waiver and keeps records. For a deeper dive, see Are Waivers Legally Binding In Australia?

3) Limitation Of Liability

A proportional and well‑drafted Limitation of Liability clause helps you cap exposure (for example, to the amount paid for the services), carve out categories of loss, and align your risk profile with your pricing. It must be consistent with the ACL, the recreational services carve‑out (if relevant) and the UCT regime.

4) Consequential Loss Exclusion

Many agreements exclude indirect and special losses. The meaning of “consequential loss” can be controversial, so lean on precise wording and consider the practical impact on your counterparties. If you rely on this tool, get across how Australian courts treat consequential loss.

5) Indemnities And Assumption Of Risk

Indemnities shift certain costs (like third‑party claims) to the indemnifying party, while assumption‑of‑risk language records what the participant accepts. Keep these reasonable and connected to the actual risks of your service to avoid unfairness issues.

6) Consistent Contract Suite

Your liability approach should be applied consistently across the places customers engage you - for example, your Service Agreement, in‑store or booking Terms of Trade and any online flows like Website Terms and Conditions. Inconsistencies can create confusion and weaken enforceability.

When Is A Waiver Effective - And When Is It Not?

Waivers are one of the most misunderstood legal documents. They can be powerful for the right business model when drafted and used properly, but they won’t cure every risk.

When A Waiver Helps

• You’re supplying recreational services and want to rely on the section 139A carve‑out for death or personal injury.
• Participants are given the waiver in a prominent, timely way (before the activity), in plain English, with a clear acceptance step.
• Your business also maintains robust safety systems - the waiver is one tool among several.

When A Waiver Won’t Save You

• Reckless conduct: If your conduct is reckless, an exclusion can’t protect you.
• WHS duties: You cannot contract out of safety obligations owed to workers and others at your workplace.
• Hidden or unclear terms: If the waiver is buried, unclear or presented at the last minute, it’s less likely to be enforceable.
• Unfair terms: Overly broad exclusions in a standard form contract may fall foul of the UCT regime (with penalties). A periodic UCT Review and Redraft helps keep you compliant.
• Minors: Contracts with minors have extra complexity. Acceptance by a parent/guardian should be clear and traceable, but even then, enforceability can be limited.

If a waiver is right for your business, invest in a document that uses the correct statutory language, aligns with your operations and is supported by staff training. A generic template often won’t cut it.

Practical Steps To Manage Risk Without Relying On Unenforceable Clauses

Contracts matter, but the best protection comes from a layered approach. Consider these practical steps to reduce the likelihood and severity of incidents.

Build A Safety‑First Culture

• Risk assessments: Identify inherent and residual risks in each activity or service. Update them regularly after incidents or near misses.
• Policies and training: Document procedures for supervision, equipment checks, incident response and first aid. Train staff and keep records.
• Maintenance and inspection: Keep logs for equipment inspections and repairs. Don’t use gear that’s out of spec.
• Capacity limits and suitability checks: For higher‑risk activities, consider pre‑screening, age limits, weight limits or skill prerequisites.

Strengthen Your Contracting Process

• Use a clear, consistent contracting flow - whether face‑to‑face, via tablet or online checkout - with obvious links to your Terms of Trade or Service Agreement.
• Implement clickwrap acceptance (a checkbox next to “I agree”) and timestamped records. Avoid browsewrap (passive acceptance) for anything material.
• Highlight key risk terms in plain English so customers aren’t surprised. Courts look favourably on transparency.

Use Insurance Strategically

Public liability and professional indemnity insurance can help transfer residual risks you can’t contract out of. Speak with a broker who understands your industry risks and claims trends.

Plan For Incidents

• Incident response plans: Define how staff respond, who is contacted and how to preserve evidence.
• Reporting and review: Record incidents and near misses, then adjust procedures and training based on what you learn.
• Customer communications: Prepare calm, factual messaging and a pathway for prompt resolution where appropriate.

Common Mistakes To Avoid

We often see the same pitfalls when businesses try to exclude liability for death or injury. Avoid these traps to give your terms the best chance of working as intended.

• Using generic boilerplate: A one‑size‑fits‑all disclaimer rarely aligns with the ACL, your state’s civil liability rules, and your actual operations.
• Burying key clauses: Important limitations should be prominent - not hidden in dense text or tiny font at the checkout.
• Over‑reaching: Clauses that attempt to exclude everything can backfire under the UCT regime. Proportional, specific drafting is more defensible.
• Inconsistent documents: If your waiver says one thing but your online terms say another, you introduce ambiguity.
• Ignoring staff process: Even great wording fails if your team doesn’t present and capture acceptance properly, every time.
• Relying on contracts alone: Safety systems, training and insurance are non‑negotiable complements to your legal terms.

Key Takeaways

• You cannot exclude all liability for death or personal injury in Australia - consumer guarantees and safety laws set real limits.
• A targeted carve‑out for recreational services may allow exclusions for death or injury if strict statutory wording and process requirements are met, and never for reckless conduct.
• Use balanced tools: clear risk warnings, a compliant waiver (where relevant), and a proportionate Limitation of Liability clause tailored to the ACL and UCT regime.
• Make your contracting process clear and consistent across your Service Agreement, Terms of Trade and online terms, with proper acceptance records.
• Back up your paperwork with strong safety systems, training, maintenance and thoughtful insurance cover - contracts are only one layer of protection.
• Periodic reviews (including a UCT Review and Redraft) reduce the risk of unfair or unenforceable terms and keep you aligned with legal updates.

If you’d like tailored advice or help drafting enforceable risk clauses, waivers or terms for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.