Excluding liability for COVID-19, waivers and exclusions

As businesses begin to reopen, discussion is emerging about customers being required to sign waivers covering the contraction of COVID-19.

Although the intention is quite understandable, this short article concludes that such waivers are likely to be unenforceable albeit that successful claims are likely to be rare in any event. 

Waivers

A waiver (as commonly understood) operates as a simple contract – in return for being permitted to access the relevant services, the customer agrees to not bring claims should they suffer loss because of the acts of the provider.

The ability of businesses to exclude such liability is severely curtailed by s.2 Unfair Contract Terms Act 1977, which provides that no person may exclude or restrict their own liability for death and / or personal injury caused by negligence. 

“Negligence” includes not only the tort of negligence itself, but also claims under the contractual duty to take reasonable care and skill and under the Occupiers’ Liability Act 1957.

Similarly, it is established that individuals generally cannot “consent” (in law) to injury where this is caused by negligence.

Waivers are extremely useful for businesses where the nature of the services provided inherently involves a degree of danger, and there exists the possibility of injury even where all reasonable care is taken. Examples would include activities such as go karting, indoor climbing, ice skating and the like. In such circumstances, a properly drafted waiver would ensure claims could only be made where a degree of fault is found. 

For the vast majority of businesses however, the risk of infection with COVID-19 is unlikely to be an inherent danger of the services offered. Instead, any claim would be brought on the basis that insufficient care was taken to prevent infection while other services were undertaken – a claim of negligence against which a waiver will not assist. 

The defence in such cases would simply be that there was no negligence. It follows that, if the nature of a service means that it cannot be provided with appropriate precautions, the  Court may find the only non-negligent approach to be not providing that service at all. 

Causation

This is not to say however that claims for COVID-19 will necessarily succeed – far from it. Causation must be established and – even if the Court were to adopt the approach from McGhee / Fairchild that only a “material contribution” to the risk of damage is required – it would seemingly still have to be shown that exposure to coronavirus in fact occurred during the currency of the services provided.

Given the prevalence of coronavirus in the population, it seems unlikely the Court could conclude it more likely than not that transfer took place at any particular point in time, regardless of any further exposure elsewhere. Unless there is a particularly obvious point of transmission, establishing causation seems likely to be difficult. 

The above is a general commentary on the law and likely issues arising, is offered without warranty and is not to be taken as legal advice on any specific set of circumstances.

Mike Blitz practises in chambers’ specialist commercial team and is happy to assist with any queries arising from this article.