The Effectiveness of Waivers in Schools
A parents ability to waive their children’s rights has not been extensively considered in Queensland. Queensland appears to be one of the only States where there has been a failure to legislate the authority for parents to waive their children’s rights in a liability waiver. For example, in New South Wales under s 5M (2)(b) of the Civil Liability Act 2002 (NSW):
(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if—
(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).
Section 5M(12) defines ‘incapable person’ to mean a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.
However, the effect of parental authority to waive children’s rights was mentioned in the Voluntary Assumption of Risk Bill, which failed its second reading on 28 November 2002 (this was mentioned in a Research Brief into the draft Civil Liability Bill 2002). The intention of the Bill was to enable individuals who were taking part in recreational activities to waive their right to sue organisers for injuries received during those activities, provided they have been properly warned of inherent risks. It would not remove the ability to make a claim against the organisation if the equipment was faulty or the service provider was negligent with respect to the participant’s health or safety. The Attorney-General, Rod Welford MP, articulated his apprehension towards the Voluntary Assumption of Risk Bill. Rod Welford stated that the Bill applied to a wide range of activities and would have a significant impact upon rights of children as it would allow parents to sign liability waivers on behalf of their children, effectively disallowing children to claim for injuries sustained through an organisations negligence.
The Civil Liability Act 2003 (Qld) has not explicitly legislated the ability for parents to waive children’s rights. Therefore, an assumption can be made, given the comments made by Rod Welford, that Queensland Courts will favour the rights of the child.
Age of Majority
The age of majority for children to have capacity to enter into contracts is the age of 18 (s 17 Law Reform Act 1995). Additionally, a person under the age of 18 cannot sue another person without a litigation guardian. The litigation guardian is usually the child’s parent in this instance (s 94 Uniform Civil Procedure Rules 1999 (Qld)). The definition of ‘person under a legal incapacity’ is contained in Schedule 5 to the Supreme Court of Queensland Act 1991 (Qld). According to that definition, a person is under a legal incapacity if they are under 18 or, more relevantly, they are a ‘person with impaired capacity.’ Unless the child was over the age of 18 they do not have the capacity to sue.
Contracts with children and others who lack capacity at law to contract are generally only binding if for the child’s benefit, and it is unlikely that a contractual term excluding liability for personal injury is for a child’s benefit, on its own or in the context of the overall agreement.
A liability waiver, signed by a child, would essentially form a contract. A contract with a Queensland minor participating in a dangerous recreational activity which contains a waiver may not be binding on the minor because it is not a contract for necessary goods or services and therefore is not for the benefit of the minor.
Where children are involved, a defendant service provider of recreational services in Queensland may seek a signed consent by a parent or guardian, but even that may well not be binding on the child as it may not carry with it any power to act on behalf of the minor. In the event a contract of service is not binding on the minor, the minor may still be able to sue for breach of that contract, but it may be unlikely that a court would allow a minor to avoid a waiver clause but continue to enforce the protection of the contract. Joachim Dietrich in his article “Duty of care under the ‘Civil Liability Acts’” points out that recreational service providers may well endeavour to require parents to sign an indemnity agreement in respect of minors taking part in recreational activities. Under such an indemnity agreement parents would indemnify the provider against damages or loss arising from a claim by the minor against the provider. He argues that it would be contrary to public policy to deprive minors of their legal rights by allowing parents to sign liability waivers on behalf of their children. Dietrich predicts that it would be unlikely the courts would enforce such an agreement.
Cases
Ohlstein BHT Ohlstein v E & T Llloyd t/as Otford Farm Trail Rieds [2006] NSWCA 226 at [170]. In this case the judge considered whether there was a contractual relationship between a 5 year old girl and the Horse Riding Company:
The existence of duty of care and the question whether there was a breach are to be decided according to considerations which affect the respondents, Tali Ohlstein and the relationship between them; that relationship was not contractual, and could not be having regard to the child’s age and understanding. The terms and the circumstances of the contractual relationship between the child’s mother and the respondents do not in my opinion have any significant bearing on either the existence or on the breach of the duty of care owed to Tali Ohlstein. The child’s mother was not in a position to alter, by contract or by any other arrangement, the considerations affecting whatever it was reasonable for the respondents to do with respect to risk of injury to Tali Ohlstein. Warnings given to Ms Duncan, by the display of signs at the respondents’ premises or in other ways, could not in principle have any impact on the duty of care owed to Tali Ohlstein; nor could knowledge of risks involved in the activity which was given to Ms Duncan in any other way, or should otherwise have been obvious to her. There is no reason in principle why what Mrs Duncan accepted in the exercise of her parental responsibility should alter what was required by the respondents’ duty of care to Tali Ohlstein; the respondents could not depute any part of their duty to Ms Duncan. The display of a sign disclaiming responsibility, upon which the respondents sought to rely in a Notice of Contention, can in a similar way have no effect on their duty of care to Tali Ohlstein, who cannot have had any understanding of the sign.
Gillick Competence
The Gillick competence principle may be worth mentioning in this instance, although it relates to medical authorisation., Australian case law in various other areas follows the Gillick competence principle that a child’s capacity to make a decision depends upon the child having ‘sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit’. ‘A child is, according to this principle, capable of giving informed consent when they achieve ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. Prior to an individual reaching the age of eighteen, she or he possesses legal capacity in a variety of different areas the capacity to commit (and to be liable to be punished for) crimes requiring criminal intent; within limits, the capacity to make a contract and to be guilty of a tort; subject to any necessary authorization (Browne 2018).
However, the principles of contract law will still come into play and in the event a minor did sign a waiver, it is unlikely it will be legally enforced, as it is not for their benefit.
Conclusion
As the law currently stands in Queensland, it is unlikely that a liability waiver, either signed by the child or the adult will be legally enforceable. It will not be legally enforceable against the minor, as a liability waiver does not benefit the child. As noted in the Research Brief into the draft Civil Liability Bill 2002, the discourse seems to suggest that Queensland is against parents signing waivers of liability on behalf of the children as this effectively deprives a child from claiming for injuries sustained through a provider’s negligence. In the event an adult signs a liability waiver on behalf of a child, it seems as if this will also be unenforceable as it would be contrary to public policy to deprive minors of their legal rights. However, this presumption is not clearly legislated and thus there is grey area in this part of the law. Due to recent and dated case law, the courts will most likely favor the rights of the child.
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You can find more information about children’s rights at the following websites:
Face the Facts: Children’s Rights – provides accurate and easy to understand information about children’s rights.
References
Ancliffe, Shiva, “The Separate Representation of Children: Part 1” (2002) Family Law Week.
Browne, Darryl, “Mental Capacity: The tests and assessment” (2018) 18 Australian Lawyers Alliance 12.
Civil Liability Act 2002 (NSW)
Civil Liability Act 2003 (Qld)
Civil Liability Bill 2002 (Qld)
CS v SBH & Ors [2019] EWHC 634
Dietrich, Joachim, “Duty of care under the ‘Civil Liability Acts’” (2005) 13(1) Torts Law Journal 17.
Healey, Deborah, “Warnings and Exclusions Post Personal Responsibility” (2006) 1 Australian and New Zealands Sports Journal 7.
Ipp, David Andrew, Cane, Peter, Sheldon, Don and Macintosh, Ian, “Review of the Law of Negligence Final Report” (2002) Law of Negligence Review.
Law Reform Act 1995 (Qld)
Ohlstein BHT Ohlstein v E & T Llloyd t/as Otford Farm Trail Rieds [2006] NSWCA 226
Supreme Court of Queensland Act 1991 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Voluntary Assumption of Risk Bill 2002 (Qld)