Injured at the gym or playing sport in Queensland: do waivers stop a claim?

A weights bench that gives way, a fall from a climbing wall, a collision on a futsal court, a wipeout on a surf lesson at Burleigh: injuries at the gym or playing sport are common, and so is the gym waiver signed at the front desk beforehand. The question that follows is usually whether that waiver means there is nothing more to discuss.

In Queensland the answer comes from two sets of rules that operate side by side. The Civil Liability Act 2003 (Qld) sets out how negligence claims work for obvious risks, inherent risks and dangerous recreational activities. The Australian Consumer Law requires services to be supplied with due care and skill and limits contracting out of that requirement, with a specific carve-out for recreational services. This article explains how those rules fit together and what a waiver can and cannot do.

The starting point: was reasonable care taken?

Where a gym, sports club or activity operator owes a duty of care, s 9 of the Civil Liability Act 2003 (Qld) sets out when that duty is breached. Under s 9(1), a person does not breach a duty to take precautions against a risk of harm unless the risk was foreseeable, it was not insignificant, and a reasonable person in that position would have taken the precautions. Under s 9(2), the court weighs the probability of harm, its likely seriousness, the burden of taking precautions and the social utility of the activity.

The waiver and the special recreational rules come in afterwards, as possible reasons why an operator that might otherwise be liable is not.

How the main rules compare

The table below summarises the provisions that most often decide these questions. Each turns on the facts of the particular injury.

Dangerous recreational activities and obvious risks

Section 18 defines a dangerous recreational activity as an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person. Under s 19(1), a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person who was harmed. Under s 19(2), that applies whether or not the injured person was aware of the risk.

Three features of this rule matter in practice.

• Not every sport or workout qualifies. The activity must involve a significant degree of risk of physical harm. Whether a particular gym session, social game or class meets that description is a question of fact about the activity as it was being done.
• Only obvious risks. Under s 13(1), an obvious risk is one that would have been obvious to a reasonable person in the injured person’s position. Under s 13(2) to (4), it includes risks that are patent or a matter of common knowledge, and a risk can be obvious even if it has a low probability or is not physically observable.
• Only the participant. Section 17(1) confines this division to harm resulting from a dangerous recreational activity engaged in by the plaintiff. A mere spectator who was not taking part is not engaged in the activity, so s 19 would not ordinarily reach their claim.

Broken equipment and poor maintenance

For gym injuries this is often the most important provision. Section 13(5) declares that a risk from a thing is not an obvious risk if the risk is created because of a failure to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. The Act’s own examples are a go-cart with a cracked frame that appears to be in good condition, and a bungee cord used past the manufacturer’s recommended replacement time.

In a gym, the ordinary risk of a heavy lift is one thing. A cable that frays because it was never replaced, or a bench with a failed weld that looked sound, is another. Where the risk comes from that kind of failure and the failure was not itself obvious, it is not an obvious risk, and s 19 does not protect against it.

Warnings, inherent risks and awareness

Under s 15(1), a person does not owe a duty to warn of an obvious risk. Under s 15(2), that changes if the injured person asked for advice or information about the risk, if a written law required a warning, or if the defendant is a professional (other than a doctor) and the risk is of death or personal injury from the provision of a professional service. Under s 15(3), those exceptions do not create a presumption that a warning was required.

Under s 16, there is no liability in negligence for the materialisation of an inherent risk, which s 16(2) defines as a risk that cannot be avoided by the exercise of reasonable care and skill. Section 16(3) keeps liability connected with a duty to warn.

What a waiver can and cannot do

A waiver is a term of a contract. Section 7(3) of the Civil Liability Act 2003 (Qld) provides that, apart from chapter 2 part 2 and chapter 3, the Act does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities, and does not limit the operation of that express provision. So the Civil Liability Act does not itself strike down a waiver. Whether a waiver covers a particular injury depends on whether it formed part of the contract and on what its words actually say.

The Australian Consumer Law adds a separate layer. It applies as a law of Queensland under s 16 of the Fair Trading Act 1989 (Qld), and as a law of the Commonwealth under the Competition and Consumer Act 2010 (Cth).

• Due care and skill. Under s 60 of the Australian Consumer Law, services supplied in trade or commerce to a consumer must be rendered with due care and skill. Section 267 gives the consumer a right of action where that requirement is not met.
• The general rule against contracting out. Under s 64(1), a contract term is void to the extent it purports to exclude, restrict or modify that requirement, or liability for failing to meet it.
• The recreational services carve-out. Section 139A of the Competition and Consumer Act 2010 (Cth) provides that a term of a contract for the supply of recreational services is not void under s 64 only because it excludes, restricts or modifies the due care and skill requirement. Under s 139A(2), recreational services are participation in a sporting activity or similar leisure time pursuit, or another activity involving a significant degree of physical exertion or physical risk undertaken for recreation, enjoyment or leisure.

Section 139A removes one statutory obstacle. It does not itself make a waiver effective, and the waiver must still be part of the contract and cover what happened. The carve-out also has two limits written into it. Under s 139A(3), it applies only if the exclusion is limited to liability for death, physical or mental injury, disease, or similar harm. Under s 139A(4), it does not apply where the exclusion would cover significant personal injury caused by the supplier’s reckless conduct. Section 139A(5) defines reckless conduct as conduct the supplier engages in despite being aware, or where it should reasonably have been aware, of a significant risk that the conduct could result in personal injury, and without adequate justification.

Section 139A sits in the Commonwealth Act itself, outside the Australian Consumer Law text. Under s 131(1), that Act applies the Australian Consumer Law as Commonwealth law to the conduct of corporations. Whether a particular waiver is governed by the Commonwealth version with its carve-out, by the Queensland version, or both, is a technical question that turns on who the supplier is.

Other points that commonly arise

• Contributory negligence. Under s 23, the injured person’s own care is judged by the standard of a reasonable person in their position, on what they knew or ought reasonably to have known. Under s 24, a court may reduce damages by 100% if it considers that just and equitable, which defeats the claim.
• People injured at work. Under s 5(1)(b), the Civil Liability Act 2003 (Qld) does not apply to an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), with limited exceptions, and under s 5(2) it does not matter whether compensation is actually claimed. A trainer or instructor injured at work may therefore be outside the rules in this article; the workers’ compensation scheme is not covered here.
• Time limits. Under s 9(3) of the Personal Injuries Proceedings Act 2002 (Qld), part 1 of a notice of claim is due by the earlier of 9 months after the incident (or the first appearance of symptoms if they were not immediately apparent) and 1 month after first instructing a law practice once the respondent is identified. Under s 9(5), a late notice must still be given, with a reasonable excuse for the delay. Separately, the general limitation period in s 11(1) of the Limitation of Actions Act 1974 (Qld) is 3 years from the date the cause of action arose; s 31(2) allows a court to extend it in limited circumstances where a material fact of a decisive character was not within the person’s means of knowledge.

Published 23 October 2026.

Where this leaves someone injured at the gym or playing sport

A waiver is rarely the whole answer. The questions are whether reasonable care was taken, whether the risk that materialised was an obvious risk of a dangerous recreational activity or something created by poor maintenance, whether the injured person was a participant, and what the waiver actually covers in light of the consumer law limits. More information is on our pages about public liability claims and injuries in public places, and the current text of the Civil Liability Act 2003 (Qld) on the Queensland legislation website.

Related reading

• Injured in a public place in Queensland: who owes a duty of care
• Personal injury law in Queensland: categories and time limits
• Slip and fall accidents: how liability is established
• How Fraser Lawyers helps with public liability claims
• Contact Fraser Lawyers

This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.

If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.