25/05/2026
๐๐ก๐ ๐
๐๐ฅ๐ฅ ๐๐ฎ๐ญ ๐จ๐ ๐ ๐๐๐๐๐ซ๐ข ๐๐๐ก๐ข๐๐ฅ๐: ๐๐ก๐๐ง ๐๐ข๐ฌ๐๐ฅ๐๐ข๐ฆ๐๐ซ๐ฌ ๐
๐๐ข๐ฅ
"๐๐ฉ๐ฆ ๐ฃ๐ช๐จ ๐ฑ๐ณ๐ช๐ฏ๐ต ๐จ๐ช๐ท๐ฆ๐ต๐ฉ ๐ข๐ฏ๐ฅ ๐ต๐ฉ๐ฆ ๐ง๐ช๐ฏ๐ฆ ๐ฑ๐ณ๐ช๐ฏ๐ต ๐ต๐ข๐ฌ๐ฆ๐ต๐ฉ ๐ข๐ธ๐ข๐บ." (๐๐ฐ๐ฎ ๐๐ข๐ช๐ต๐ด)
You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.
๐ผ ๐๐๐ง๐ฉ๐๐๐๐ฎ ๐จ๐ช๐ง๐ฅ๐ง๐๐จ๐ ๐ฉ๐๐๐ฉ ๐๐ฃ๐๐๐ ๐๐ฃ ๐จ๐๐ง๐๐ค๐ช๐จ ๐๐ฃ๐๐ช๐ง๐ฎ
An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.
When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.
๐๐๐๐ฃ ๐๐ค๐๐จ ๐ ๐๐๐จ๐๐ก๐๐๐ข๐๐ง ๐๐๐ฉ๐ช๐๐ก๐ก๐ฎ ๐๐๐ฃ๐ ๐ฎ๐ค๐ช?
The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:
โข ๐ฃ๐ฒ๐ฟ๐๐ผ๐ป๐ฎ๐น ๐ฐ๐ผ๐ป๐๐ฒ๐ป๐. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
โข ๐๐ฑ๐ฒ๐พ๐๐ฎ๐๐ฒ ๐ป๐ผ๐๐ถ๐ฐ๐ฒ. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an โInsuranceโ heading does not meet that standard.
โข ๐ฆ๐ฝ๐ฒ๐ฐ๐ถ๐ณ๐ถ๐ฐ ๐ฎ๐ป๐ฑ ๐๐ป๐ฎ๐บ๐ฏ๐ถ๐ด๐๐ผ๐๐ ๐๐ผ๐ฟ๐ฑ๐ถ๐ป๐ด. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
โข ๐๐ผ๐ป๐๐๐บ๐ฒ๐ฟ ๐ฃ๐ฟ๐ผ๐๐ฒ๐ฐ๐๐ถ๐ผ๐ป ๐๐ฐ๐ ๐ฐ๐ผ๐บ๐ฝ๐น๐ถ๐ฎ๐ป๐ฐ๐ฒ. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer's attention in plain language and in a conspicuous manner before the activity commences.
๐๐ฌ๐ค ๐๐๐จ๐๐ก๐๐๐ข๐๐ง๐จ, ๐ฉ๐ฌ๐ค ๐๐๐๐ก๐ช๐ง๐๐จ
Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victimโs attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.
The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.
๐๐๐๐ฉ ๐ฉ๐๐๐จ ๐ข๐๐๐ฃ๐จ ๐๐ค๐ง ๐๐ช๐จ๐๐ฃ๐๐จ๐จ๐๐จ ๐๐ฃ๐ ๐๐ค๐ฃ๐จ๐ช๐ข๐๐ง๐จ
Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.
For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.
The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.
If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask us.
๐๐ณ๐ฐ๐ท๐ช๐ฅ๐ฆ๐ฅ ๐ฃ๐บ ๐๐๐ ๐๐ฏ๐ค. ๐๐ต๐ต๐ฐ๐ณ๐ฏ๐ฆ๐บ๐ด
ยฉ ๐๐ฐ๐ต๐๐ฆ๐ธ๐ด. ๐๐ญ๐ญ ๐๐ช๐จ๐ฉ๐ต๐ด ๐๐ฆ๐ด๐ฆ๐ณ๐ท๐ฆ๐ฅ.
๐๐ข๐ฌ๐๐ฅ๐๐ข๐ฆ๐๐ซ
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for professional, detailed and appropriate advice.
