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If your business provides recreational activities, such as skydiving or horse riding, indoor football or laser tag, your customers or participants should accept a waiver. Like any contract, a waiver needs to be properly accepted to be binding and to allow the parties to rely on it if a dispute arises. If a participant suffers serious injuries after participating in your recreational activities, and they had not properly accepted your waiver, you may not be able to rely on the waiver. This article will: 

  • outline the steps to ensure your waiver is binding;
  • examine an instance where a waiver was not properly entered into; and
  • run through the key parts of a waiver. 

What is the Effect of a Waiver?

When drafted well, a waiver clearly articulates the activity and all of the risks involved in participating in the activity. By accepting a waiver, your participant accepts the risks associated with participating in the activity. Additionally, they promise not to sue you if something goes wrong. In other words, your participant ‘waives’ their right to make a claim against you if they suffer any loss or damage as a result of participating. 

How Waivers Can Be Entered Into 

Common instances when businesses use waivers include when they: 

  • offer activities which have a high level of risk, such as extreme sports; or
  • want people to test their new product before it has been released to the market.

A waiver is only worth the paper it is written on if it is properly accepted. Historically, the parties entering into the contract have signed it with wet ink. More and more, however, contracts are being accepted digitally, for example, by ticking a box to indicate acceptance. 

Before engaging in a recreational activity, the participant should be given time to consider and understand the risks of the activity. Therefore, it is important that you allow a participant ample time to read through a waiver before accepting it. 

Therefore, if a participant was simply required to tick a box next to text such as ‘by participating in the activities you accept the waiver’ (with a hyperlink to the waiver), it may be difficult to demonstrate that the participant had actually read the waiver.  

Accepting on Behalf of a Participant

Sometimes, a parent or legal guardian will accept a waiver on behalf of:

  • their child; or
  • a person without the legal capacity to enter into a contract.

In this situation, there is a risk that the child, or person without legal capacity, could tick the box. Therefore, it will be difficult to demonstrate that the guardian had read or accepted the waiver. 

Suppose you do choose to use the tick-a-box method when participants enter your waiver. In that case, ensure that they have adequate time to read and consider the risks associated with participating in the recreational activities. 

Even if it is technically possible for a participant to check a box to indicate that they accept a waiver, for such an important document, it may not be a risk worth taking.

A Recent Case: Hayley Marks v Skydive Holdings

In early 2021, an interesting case (Hayley Marks v Skydive Holdings Pty Ltd (2021) VSC 21) examined whether a company offering recreational activities (in this instance, skydiving) could rely on their waiver of liability. When booking the skydive, the participant was prompted to complete membership forms online, which included a link to a waiver. The participant was involved in an accident during the skydive and brought a claim against the company. 

Ultimately, the skydiving company did not properly draw the participant’s attention to the waiver. This is because they did not require her to read and acknowledge the waiver before participating in the skydive. The waiver itself clearly set out the risks involved in skydiving. However, there was nothing to indicate that the participant had read and understood those risks. 

This case demonstrates that hiding a waiver amongst online terms and conditions, where a participant can too-easily click to accept the terms, may not adequately draw the participant’s attention to the waiver and allow them to read and understand the risks involved.

Key Parts of a Waiver

Waivers may be a standalone document. Alternatively, they may be part of broader terms and conditions, such as membership terms, as in the case outlined above. You should have a mechanism that prompts each participant (or their legal guardian) to read through and accept the waiver. Further, you should keep a copy of each accepted waiver. While a tick-to-accept box may be valid, consider whether your participant has been given an opportunity to read the waiver. 

Describe the Risks

Additionally, a waiver should describe the recreational activities and the risks. Rather than simply stating ‘there is a risk of injury or death’, you should describe in detail each of the risks that could arise from participation. The more clearly you articulate the risks, the more likely it is that the participant understands the risks. 

Indemnity

A waiver may also include an indemnity. This is where the participant agrees to compensate you for any loss or damage the participant, or you suffer as a result of their participation in the activities. 

Release

A waiver should contain a release where the participant agrees to release you (in other words, not hold you responsible) from any liability. This will apply, for instance, where the participant dies or suffers a personal injury. 

Rules

Waivers may also contain a list of rules which the participant must follow. For instance, you might require that participants:

  • follow all instructions you give them;
  • wear the appropriate attire and use any equipment as instructed by you; and
  • not be under the influence of drugs or alcohol when participating in the activities.  

Key Takeaways

Waivers are incredibly important legal documents to have in place with participants who are involved in your recreational activities. However, you must make sure that your participants have read and properly accepted your waiver. Participants can accept waivers with a check box but you must satisfy yourself that the participant has properly read the waiver. If you need assistance preparing a waiver or guidance on making sure it is legally binding and as protective as it should be, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

What is a waiver?

A waiver clearly outlines an activity and all of the risks involved in participating in the activity. When accepting a waiver, the participant accepts the risks associated with participating, including personal injury. They also promise not to sue your business if something goes wrong.

Is it important to give a participant time to read the waiver?

Yes, before engaging in a recreational activity, the participant must be given time to consider and understand the risks. Therefore, f you provide recreational services you should allow the participant time to read through a waiver before accepting it. 

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