Motei & Associates

Menu Phone
Landmark Decision – Signing a waiver of liability is not actually a release from liability!

Motei & Associates were instructed to represent a 12-years old child (Claimant) against a car racing organizer (Defendant) in Dubai in relation to personal injuries caused by Defendant’s negligence.

Court’s rationale

The Company is responsible for its failure to maintain the safety measures for the equipment that caused the Claimant’s injuries during a ‘child’ car racing. The Court also revoked the waiver of liability signed by the child’s father.

Facts of the Case

While the child and his father were on a short visit to Dubai to participate in a race for those under 18, the child’s fingers were seriously injured during the use of the go-cart due to the lack of adequate security and safety measures taken by the defendant. The go-cart did not have a cover for the iron chain that connects the motor to the tyres. The father did not file a police report for the incident given that they were on a short visit to Dubai and he was busy with the medical treatment of his child. The father had signed a waiver of liability waiving defendant’s responsibility for any damage or accidents occurring during the race and waiving Claimant’s eligibility to raise a compensation claim.

Defendant’s arguments

  • The defendant strongly relied on the waiver of liability, stating that the child’s father had signed this wilfully with no undue influence or pressure, knowing the risks associated with the event.
  • The defendant was not at fault as it buys the go-carts with such specifications. It argued that the child’s speed and impulsiveness while using the go-cart is the main cause for the accident. They provided a witness statement from the child’s trainers indicating that the child was always speeding while racing and would not listen to the trainer’s advice and instructions.
  • The defendant questioned the child’s injuries and claimed that they are not serious injuries or permanent disabilities and the fact that just within three months of the accident the child was able to return to sports activities and received second place in one of the races in the United Kingdom, as supported by documents.

We argued

  • The defendant is at fault because it did not take the necessary security and safety measures regarding the go-cart used by the child as there was no cover for the iron chain that connects the motor of the car to the tyres, and this was the direct cause of the incident.
  • The defendant is at fault due the theory of ‘strict liability’ which makes the defendant legally responsible for the consequences resulting from the equipment and machinery under defendant’s direct control once the relation between the injury and the equipment is established.
  • The waiver of liability signed by the father is null and void based on the principal of ‘Public Order’ as it is not permissible to agree to a waiver of liability in advance and before the incident takes place as this is a clear breach of the provisions of the law.
  • Such waiver of liability (whether it is a clause in a contract or a separate document), which is commonly used by schools, sports clubs and activities organisers in the UAE, is invalid and void by law, as it would open doors to companies to harm people while limiting their right for compensation in cases of negligence which would indeed threaten public life and safety.

Court’s Decision

In reaching a final decision, the Dubai Court considered our arguments and decided that the defendant was at fault as a result of its negligence to maintain the go-cart, thus causing injury to the child and must be subject to compensation for the damages incurred. The Court found that the waiver of liability document is invalid, void, and would not be taken into consideration. The Court ordered the defendant to pay the father, in his capacity as the child’s guardian an amount of AED200,000/- as compensation for the injuries the child had suffered.

Author’s comments

The decision made by the Dubai Court’s in this case, reaffirms their ethical stance, and fundamental importance to protect the public. It is clear here that the Courts will hold companies liable for any damage and injury due to their own negligence, as well as strict liability for the products/services they make available for consumers. Finally, merely because the parties sign a waiver of liability document, that has become common usage for service providers and merchants, it does not mean that these companies will not be held liable for personal injuries due to their negligence. The law will uphold public order and people’s right to safety and security in their day to day lives.

For further info on the above case, please contact Ashraf El Motei at a.motei@motei.com

Ashraf heads the dispute resolution practice in Motei & Associates, a Dubai based law firm (www.motei.com). He specializes in civil and commercial litigation and has particular focus on international arbitration. His practice encompasses a broad spectrum of substantive areas with specific focus on all types of real estate disputes including sale and purchase disputes, distressed/ canceled developments, enforcement of judgments and security, employment, professional negligence and health care disputes.

Location Map

Location Map

Reach Us

For Initial Consultation Meeting,
Telephone: +971 4 435 5959
Fax: +971 4 435 5858
Skype: motei.office

Damac Executive Heights (TECOM)
Office No. 801, 8th Floor
P.O. Box: 112888
Dubai, UAE