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15/08/2018

Can an exemption clause or disclaimer protect you from a liability?

Disclaimers are everywhere – anytime someone is warning you of something or letting you know something for your own good, it’s a disclaimer.

Remember when one woman sued McDonald’s for spilling hot coffee on herself and won $2 million? After that the Company upped the disclaimer on their cup – this coffee is SUPER HOT – be careful.

The above example left me pondering – are my colleagues familiar with the law in relation to disclaimers and what have I done to make our clients and brokers aware of it? The outcome has been this short article.

As a starting point a clause that excludes the liability on the part of a person or company, whether it be a hospital, hotel, restaurant, shopping mall, a tourist attraction or even a petrol-service station can be incorporated into an agreement between two parties, either as an agreed term in a contract, or in a notice displayed on the premises. When it is contained in the written agreement, it is referred to as an exemption or exclusion clause, and when it is displayed, it is referred to as a disclaimer notice.

On either basis, the party inserting the clause or displaying the notice may avoid liability for his or her actions. Whether such a clause will be upheld will depend always on the circumstances of each particular case.

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