FEATURE ARTICLE -
Advocacy, Issue 99: March 2025
Disclaimers can be written or oral. They can be printed on documents or posted on signs (eg entry to a recreational park or car park). They can be found on products (eg bags of seed as in the Mallonland case[i]) or posted on walls.
At the outset it is to be noted that any discussion of disclaimers is subject to the restrictions on their use imposed by the Australian Consumer Law. Hence the writings below are relevant to situations not covered by Australian Consumer Law.
In a non-contractual situation what is the doctrinal basis for a claimant (plaintiff) being bound by a disclaimer of liability for negligence. Fleming in his seminal work on the Law of Torts refers to a party who proceeds in the knowledge, actual or deemed, of a disclaimer of negligence liability, as an express assumption of risk (volenti non fit injuria).[ii] This may be contrasted with an implied assumption of risk as in a passenger who willingly takes a risk with a driver that the passenger knows is intoxicated.
Volenti and Disclaimers
Volenti non fit injuria or voluntary assumption of risk provides a defendant with a complete defence to a negligence action unlike contributory negligence which is likely to reduce the damages only. Although, under Civil Liability legislation a finding of 100% contributory negligence is provided for.[iii]
Before a court can give effect to a disclaimer in a tortious situation it is necessary for the defendant to establish that a consensual arrangement existed between defendant and plaintiff whereby the plaintiff voluntarily, and with actual or deemed knowledge of the disclaimer (there being sufficient notice) proceeded on the activity thereby voluntarily assuming both the actual and legal risk of loss from negligence. In the absence of such a consensual arrangement a disclaimer can have no legal effect. Luntz and Hambly[iv] cite the absurd situation where a driver being sued in negligence, had displayed a sign on top of his car stating ‘No liability accepted for any collision- keep out of the way’. There is no consensual arrangement in this example and the disclaimer would have no effect for the reason ‘that anyone driving a car is ipso facto subjected to an inescapable duty of care towards the users of the highway which he necessarily assumes by driving’: Harris v Wyre Forest Council [1988] QB 835 (CA) 853 per Kerr LJ.[v]
Evidence may establish that the plaintiff was actually aware of the disclaimer before proceeding or that reasonable and sufficient notice of the disclaimer was given to the plaintiff before undertaking the activity (eg prominent printing of the disclaimer on bags of seed was held by the High Court of Australia to be sufficient notice in the Mallonland case[vi]). Applying the analogous requirement of sufficient notice of an exclusion clause in contract, a court may deem the plaintiff to be aware of the disclaimer and to have assumed the risk of negligence and its consequences.
Assumption of Responsibility and Disclaimers
Is it possible to give legal effect to a disclaimer of negligence in a non-contractual situation, by invoking the label of “assumption of responsibility”? Such an argument would be as follows: The defendant by a written disclaimer indicated that they would not be legally responsible for negligence (eg in supplying negligent advice or supplying a defective product) and consequently there was “no assumption of responsibility” and no duty of care arose.
“Assumption of responsibility” is a misleading label which had its genesis in the context of negligent misstatement (advice or information). It was a convenient label expressing a legal conclusion but not providing a principled basis for reaching that conclusion. As Lord Griffiths stated in the House of Lords decision in Smith v Bush[vii], the phrase assumption of responsibility ‘can only have any real meaning if it is understood as referring to circumstances in which the law will deem the maker of a statement to have assumed responsibility to the person who acts upon the advice’.[viii] Assumption of responsibility was a label attached to a finding, that in circumstances in which negligent advice was provided by a speaker to an intended or known user in a serious context (not some informal or social occasion) then reliance on the statement was reasonable and a duty of care was owed to the user.[ix]
A duty of care is imposed by the general law of tort on Atkinian principles. It is not open to an individual to determine whether in particular circumstances a duty will apply. If on Atkinian principles a duty clearly arises (eg putting a product on the market which is likely to cause damage if it is defective) then a defendant seeking to rely on a disclaimer is merely attempting to avoid legal liability for breaching the duty of care that clearly arose in the circumstances. A finding by a court of no assumption of responsibility based on a disclaimer cannot in vacuo, in the absence of a consensual arrangement avoid or negate a duty of care. The disclaimer can only have legal effect in protecting the defendant by the court finding a consensual arrangement actual or deemed through an application of volenti (voluntary assumption of risk). A simple scenario can be used for clarification. X consults Y, a solicitor seeking legal advice. The consultation is free with no obligation to further consult Y. Y gives to X at the consultation a document containing in bold type a disclaimer stating that Y ‘assumes no responsibility for the advice and will not be liable for negligence or any damage howsoever caused’. Advice given by Y in the circumstances of this scenario raises a clear duty of care.[x] The advice is given in a serious context to an intended recipient in circumstances where reliance is likely and is reasonable. Any argument that Y had not ‘assumed a responsibility’ and that this per se prevented any duty of care arising is fallacious. The disclaimer given to X can only operate to protect Y, in the case of negligent advice, through the defence of volenti.
Conclusion
There is now no doubt that disclaimers for negligence of which a plaintiff was given sufficient notice, in circumstances not caught by Australian Consumer Law, can provide a defence in negligence proceedings. This has been affirmed as recently as 2024 by the High Court of Australia[xi] in a claim for purely economic loss.
*Dr Norman Katter – LL.B, LL.M, PhD, Barrister-at-Law
[i] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25
[ii] J G Fleming The Law of Torts (Law Book Co, Sydney, 1965) pp 257,258
[iii] See for instance s 24 Civil Liability Act 2003 (Qld)
[iv] Luntz and Hambly, Torts Cases and Commentary (4th ed, Butterworths )
[v] Ibid paras [6.3.7], [6.3.8] p 383
[vi] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25
[vii] [1990] 1 AC 831
[viii] Ibid at 862
[ix] Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 465; Smith v Bush [1990] 1 AC 831
[x] Ibid
[xi] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25
