What Is a Waiver? Legal Meaning, Uses & Business Applications

Author: Ian Aldridge, Progressive Legal

A waiver might seem like just another document, but for Australian businesses, it’s a critical legal tool—a safeguard against liability. Whether you run events, offer services, or manage a venue, a legal waiver helps protect your business when there’s any element of risk involved.

The key purpose of a waiver is to prevent a customer from claiming they weren’t informed of the risks when signing up. On this page, we’ll explain exactly what a waiver is, why it matters for businesses in Australia, and how you can get one tailored to your industry and needs.

What Does “Waiver” Mean in Law?

A waiver is a legally binding document that allows someone to voluntarily give up a specific right or claim. It’s a simple yet powerful legal tool often used to manage risk.

In Australian business, a waiver is commonly used to release a company from liability for risks tied to its products, services, or events. This is known as a liability waiver, a protective shield that helps prevent costly legal disputes.

Another use of a waiver is when someone chooses one legal right over another, effectively waiving the right they’re giving up. In some cases, waivers are also used to show that a legal right isn’t available in certain circumstances.

Put simply, a legal waiver helps ensure that if something goes wrong, your business isn’t held responsible, as long as it’s properly drafted and enforceable.

Why Are Legal Waivers Crucial for Australian Businesses?

A legal waiver isn’t just paperwork, it’s a strategic tool to manage risk, limit liability, and protect your business from costly legal claims. Here’s how:

1. Limit Legal Liability with a Waiver

A well-drafted liability waiver helps shield your business from lawsuits if a customer is injured or suffers a loss while using your products or services. When a customer signs a waiver, they acknowledge known risks and agree not to hold your business legally responsible.

2. Promote Risk Awareness and Transparency

A clear, enforceable waiver educates customers about potential risks before they engage with your service. This not only improves informed consent but also builds your reputation for transparency and professionalism.

3. Strengthen Legal Protection in Disputes

Should a legal issue arise, a signed business waiver can be used as evidence that the customer accepted the risk. This can significantly reduce your exposure to legal liability and support your defence.

4. Reduce Legal Costs and Insurance Premiums

Waivers reduce the likelihood of claims and lawsuits, which can help lower your legal expenses and even reduce insurance premiums, making them a cost-effective risk management strategy.

While waivers are powerful, they must be properly drafted and customised to your industry and legal obligations to be enforceable.

Get in touch with Progressive Legal’s experienced commercial team to ensure your waiver is valid, enforceable, and tailored to your needs as an Australian business owner.

What are some examples of when I’d need a waiver?

Generally, a waiver is used when certain risks are associated with a business’ goods or services and the business seeks to limit its liability.  

Waivers are commonly used when a business provides dangerous or risky activities, such as extreme sports or recreational activities to customers. These dangerous activities could leave the business exposed to liability if a consumer is injured and makes a claim against the business. Some common businesses where waivers are essential include:

Extreme sports and recreational activities

Businesses like skydiving, go-karting, bungee jumping, horse riding, and similar activities inherently involve significant risks.

Participants could suffer injuries from falls, collisions, or equipment failures. Waivers in these scenarios ensure that participants acknowledge these risks and agree not to hold the business responsible for any injuries sustained.

Medical and allied health practices

In the medical field, certain treatments or procedures may carry risks, despite the best efforts of professionals.

For example, elective surgeries, chiropractic adjustments, or experimental treatments might not guarantee outcomes and could result in complications. Waivers help inform patients of these risks and limit the practitioner’s liability if adverse effects occur.

Beauty and alternative therapy providers

Services like cosmetic procedures, tattooing, acupuncture, and massage therapy can also involve risks such as allergic reactions, infections, or unintended results.

Providers use waivers to ensure clients understand these risks before proceeding with treatments, thereby protecting the business from potential claims.

Adventure tourism

Businesses offering activities like white water rafting, helicopter flights, motorbike racing, scuba diving, or aerobatic flights cater to thrill-seekers but also face high liability risks.

Waivers are crucial here, as they make participants aware of the potential dangers and reduce the business’s liability in case of accidents.

Fitness and personal training

Gyms, personal trainers, and fitness instructors deal with clients engaging in physical activities that can lead to injuries like sprains, strains, or more severe issues.

By requiring clients to sign waivers, these businesses can protect themselves from lawsuits related to exercise-induced injuries, emphasising that clients are aware of and accept the inherent risks of physical exercise.

Event planning and entertainment services

For events such as concerts, festivals, or amusement park attractions, the risk of accidents or injuries among large crowds is significant.

Waivers help manage these risks by making attendees acknowledge the potential for accidents and agree not to hold the event organizers liable for injuries or damages that may occur.

Childcare and educational programs

Organisations providing daycare, after-school programs, or educational trips are responsible for the safety of children in their care. Given the unpredictability of children’s behaviour and the various activities involved, waivers are essential to address the risks and ensure parents or guardians understand and accept these risks, reducing the organisation’s liability.

It’s crucial to use a waiver to alert the consumer or customer to the nature of the activity, it’s risks and for the individual to waive their right to take legal action against the business.

Essentially, the customer agrees to take responsibility for the risks associated with the activity offered by the business and agrees not to sue the business if they incur injury or harm.  

A waiver could also be used if photos or videos are taken of customers for promotional and marketing purposes to release the business of liability.

What Should a Legal Waiver Include?

To ensure your waiver is legally valid and protects your Australian business, it must include these key elements:

Written Waiver Agreement

Your waiver must be in writing and incorporated into any contract or agreement with the customer. Verbal waivers are not legally reliable.

Clear Risk Warning

Your waiver should explain the potential risks associated with the activity or service your business provides. It should be easy for the customer to understand what they’re getting into.

Release of Liability

State unequivocally that by signing the waiver, the customer releases your business from any liability related to those risks.

Examples of Non-liability

Specify what your business is not liable for, such as negligence, unforeseen events or loss of personal items and provide specific examples where applicable.

If a business’ negligence also means a breach of a consumer guarantee under the Australian Consumer Law (ACL), then there are very specific provisions on how that may be done.

We’ll discuss this next but generally, if you are able to exclude the consumer guarantees under the ACL, you will also exclude your liability for negligence.

Indemnity Clause in a Waiver

Consider including an indemnity clause, which makes the customer responsible for any damage or loss incurred as a result of using your services.

Explanation of Waiver

Explain how the right or remedy has been ‘waived’ to make it crystal clear. This is in accordance with Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57.

Timing Matters

As per Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219, make sure to provide the waiver at the time of the contract for the risky product or service.

How does a waiver interact with the Australian Consumer Law?

It’s important to note that Australian Consumer Law implies certain warranties into contracts for service providers. While waivers can be powerful, they cannot exclude certain guarantees under the ACL. These guarantees include:

Warranty of Due Care and Skill

Section 60 of the ACL implies that services will be rendered with due care and skill.

Warranty of Fitness for Purpose

Section 61 of the ACL implies that the service will be fit for the intended purpose.

However, there is an exception for suppliers of recreational services under section 139A of the Consumer and Competition Act, 2010 (Cth). You can exclude consumer guarantees for death or personal injury as long as it doesn’t involve reckless conduct.

Key takeaways

If your business in Australia involves risk-based services, events, or physical activities, a professionally drafted legal waiver is essential.

It helps:

• Make customers aware of potential risks
• Limit your legal liability
• Strengthen your legal defence in the event of a claim

There’s no such thing as a one-size-fits-all waiver, and using a generic template could leave your business exposed. A legally sound, tailored waiver is your best protection.

At Progressive Legal, we specialise in drafting custom waivers for your business. Our experienced commercial lawyers specialise in drafting custom liability waivers for Australian businesses. We’ll help you get it right from the start, with expert advice and fixed pricing from just $850 + GST.

Protect your business today – contact us for a tailored waiver that safeguards your interests and protects your business against risks.

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