Merely having a waiver for your business is not enough. Here’s why!
April 19, 2023
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Waivers are vital for businesses seeking to reduce their risk of liability, particularly those providing high-risk related activities and services. However, merely having a waiver is not enough. It is also of importance to consider how the waiver is to be incorporated into your contractual arrangement with the participant.
What is a waiver?
A waiver is a legal instrument evidencing a persons act of intentionally relinquishing or abandoning a known right or claim. Waivers are commonly utilised by businesses to obtain agreement from a participant to ‘waive’ the participant’s right to make a claim against the business if they suffer any damage or injury arising from their participation in activities or services provided by the business. If properly drafted and accepted, a waiver will allow a business to potentially avoid liability if a participant suffers damage or injury in connection with the business’ activities.
Importance of implementation
The recent case of Marks v Skydive Holdings Pty Ltd
[2021] VSC 21 in the Victorian Supreme Court emphasises the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business. Businesses cannot merely rely on the existence of a waiver (even if signed by the participant) to automatically entitle it to protection from liability.
In this case, Ms Marks sued Skydive Holdings Pty Ltd (‘Skydive’) after sustaining serious injuries arising from a heavy landing. One of the issues considered by the Court in determining the cause of Ms Mark’s injuries (and whether Skydive had any liability), was whether the waiver signed by Ms Marks provided Skydive with a complete bar to any liability.
Prior to Ms Mark’s participating in the activity, Skydive provided Ms Marks with, and she signed, a waiver indemnifying Skydive from loss or damage suffered in connection with the skydiving activity. However, the Court held that the waiver could not be relied upon as a complete bar to any liability because it did not form part of the contractual arrangement entered into with Skydive at the time Ms Marks booked and paid for the activity.
The waiver was provided to Ms Marks at its place of business on the day of her skydive. It was not provided to Ms Mark’s at the time she booked and paid for the activity online, nor was it mentioned in the booking confirmation or the terms and conditions signed by Ms Marks.
Had the waiver been provided to Ms Marks during the course of the booking process, perhaps the outcome may have been different.
Jumping with caution
This case provides a timely reminder of the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business, particularly those providing high-risk related activities and services. Merely having a waiver for your business is not enough.
By Danielle Edwards (Associate)
If you would like further information in relation to how the above matters may affect your business or assistance with preparing and implementing a waiver and or terms and conditions for your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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