Waivers are vital for any business providing goods or services that carry an element of risk to consumers.
The ultimate goal is to stop a customer from saying that they weren’t aware of the risks when they signed up.
To optimise the success of a waiver in protecting your business from liability, it must be carefully drafted to disclose the specific risks to the participant.
This article will discuss the nature of waivers, when they are used and what they should include.
The following businesses commonly need waivers:
A waiver is the voluntary relinquishment or surrender of some known legal right, privilege or remedy. It’s a legal document releasing some requirement, such as waiving a right or a waiver of liability.
Another form of waiver is where a party elects in favour of one right over another, it may be said that the other right has been ‘waived’. The effect of this is that the right is permanently lost.
The term ‘waiver’ can also be used to describe situations in which a particular right is not available. In other words, instead of being lost, the right cannot be relied on in certain circumstances.
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.
This is why 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.
The waiver should be in writing and be incorporated into the contract with the customer. The waiver should include a risk warning that contains a comprehensive explanation of the risks associated with the activity provided by the business and that the customer agrees to assume such risks.
It should state clearly that the business is released of liability and include specific examples of what the business is not liable for. You may exclude liability for negligence if the waiver is drafted correctly. It should be noted that 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. This will be discussed further on in the article. Generally, if you are able to exclude the consumer guarantees under the ACL, you will also exclude your liability for negligence.
An indemnity could also be included in the waiver, which means that the customer is liable for any damage or loss suffered by the business resulting from their use of the business’ services.
In accordance with Agricultural and Rural Finance Pty Ltd v Gardiner  HCA 57, while it may be clear from the circumstances, the waiver should include an explanation of how the right or remedy has been ‘waived’.
The case of Alameddine v Glenworth Valley Horse Riding Pty Ltd  NSWCA 219, serves as a reminder that the existence of a risk warning in a waiver does not necessarily exclude liability of a business providing a dangerous or risky activity to customers and that it is vital that the waiver is provided at the time the contract for the risky product or services was created.
Australian Consumer Law
The Australian Consumer Law (ACL) implies certain warranties into contracts for the provision of services. Section 60 of the ACL implies a warranty that services will be rendered with due care and skill. Section 61 of the ACL implies a warranty that the service will be fit for the purpose intended.
These warranties cannot be excluded by a waiver except in the following circumstance. Under section 139A of the Consumer and Competition Act, 2010 (Cth), a supplier of recreational services is permitted to exclude a consumer guarantee in relation to its services provided that the exclusion:
1. is limited to liability for death or personal injury; and
2. does not apply to significant personal injury caused by the reckless conduct of the supplier.
The benefit of a waiver is that it requires customers to assume responsibility for the risks associated with a particular activity and limits a business’ legal exposure.
Most people understand that they need to sign these documents
There is no ‘one size fits all’ when it comes to waivers. It’s important that the waiver is well–drafted and is tailored to the business.
We can draft a waiver for a fixed fee $750 + GST, fully tailored for your business and by a qualified lawyer.
Contact us today if you require any assistance with filing your disclaimer and/or waivers.
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