If you are running a business that provides recreational activities to your customers, you may be wondering whether you should request your customers to sign a waiver form. Waiver forms are very common, and you have likely signed one on many occasions over time. This article will run through why waiver forms are used by recreational service providers.

What Exactly Is a Waiver Form?

A waiver form is a legal document that releases one party from having any legal responsibility over the other. Effectively, this means that the signing party would let go of their right to sue the other party if anything goes wrong.

When it comes to recreational activities, the party who signs the waiver form will usually be your customer participating in the activity. As the provider of recreational services, you will provide the waiver form.

Under Australian law, a recreational activity means a sport, pursuit or activity for enjoyment, relaxation or leisure. 

What Legal Responsibility Might I Have to My Customers?

To understand how a waiver works, it is crucial to know what legal responsibilities you might have to customers. Often, you will have a duty of care not to harm your customers. This legal obligation arises if it is quite probable that your customers could face harm while engaging in your activities.

If you have a duty of care and your customer experiences an injury as a result of your breach of that duty, they can sue you. Having a waiver form in place will not stop their ability to do this.

What Is the Point of a Waiver Form?

A waiver form limits the legal responsibility that you have to your customer as much as possible. Ideally, a waiver form would aim to limit your legal liability by:

  • informing your customer of the potential risks involved with taking part in the recreational activity; and 
  • requiring your customer to agree that you will not be legally responsible for the possible consequences of participating in the recreational activity.

However, you cannot use a waiver to exclude all your responsibilities to your customers. If you owe a duty of care to your customers and your customer experienced an injury due to you breaching that duty of care, they can make a claim against you in court. 

Here, the court will look at the whole of the factual circumstances. This means that the court will ultimately determine whether the waiver form means that you are not legal responsibility for the injuries, or if you must pay compensation for any injuries that your customers face.

What Are the Advantages of a Waiver Form?

Having a waiver form is, nevertheless, useful to protect your interests. This is because there will be certain times where you will not have a duty of care over your customers, and the form can exclude your legal responsibility.

For example, in New South Wales, if you warn your customers of the risks of taking part in your recreational activities, you will not have a duty of care to protect them from that risk. Further, you can use a waiver form to exclude your legal responsibility to provide recreational services with due care and skill.

However, in some cases, you may not be able to rely on the exclusion of your liability. This may be relevant if your customer:

  • experienced harm because you breached laws relating to practices and procedures which protect personal safety; and
  • suffered significant personal injury due to your reckless conduct of the recreational services.

Key Takeaways

If your business provides recreational services, a waiver form will be an essential document to limit your legal responsibilities. But, you must also comply with any laws regarding your duty of care to customers. You should also alert your customers of the risks associated with undertaking your recreational activities. It is also crucial that you put practices in place which aim to protect customer safety. If you have any questions about waiver forms, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page. 

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Kristine Biason

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