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Recreation providers and waivers – what should be in them?

The Australian Consumer Law requires you to ensure your recreation services:

• Are provided with due care and skill; and
• Fit for the intended purpose; and
• Might reasonably be expected to achieve any result made known to the consumer.

However, you are able to limit your liability to adult consumers through the use of a waiver if certain requirements are met. The waiver must form part of your contract for the provision of the recreational activity.

So what must be included in my waiver?

• Broadly we suggest the following headings as part of your waiver (this is to be included within your terms and conditions):
• Definitions – you may like to define certain recreational activities, what a “Claim” is, and what “Personal Injury” means;
• Risk warning and waiver explaining the inherent dangers present in the recreational activity, accidents, and that the consumer is voluntarily assuming those risks;
• Waiver clarifying that the consumer is agreeing that their rights to sue you as the recreational service provider are excluded, restricted or modified;
• A section outlining what outcomes the consumer cannot claim against you for (such as death, physical or mental injury, the contraction of a disease, the aggravation of any physical condition);
• A statement of the Australian Consumer Law guarantees and that you are asking the consumer that they do not apply to you, however the change in the consumer rights following the waiver does not include situations of gross negligence;
• Release and indemnity – that the consumer will not make a claim against you; and
• Disclosure of medical conditions – require that the consumer is physically fit and they disclose any relevant medical or physical conditions to you before participating in the recreational activity provided.

Your waiver must be effectively worded, and limit liability for personal injury only:

• Your waiver should educate your client that there are risks of personal injury if they choose to take part in the recreation activities your business provides.
• Make it perfectly clear what consumer rights you are asking your client to exclude, modify or restrict, and that by signing the form compensation may not be payable to them by you if they suffer personal injury.

Under the Australian Consumer Law only consumers who are 18 years of age or older are able to sign recreational services’ waivers:

Make sure that your terms and conditions make no attempt to exclude the consumer guarantees when it comes to minors:

• You are not allowed to ask a minor to sign a waiver that excludes or modifies their consumer rights;
• You are not allowed to ask a parent or guardian to sign a waiver on their behalf; and
• It is an offence to attempt to exclude consumer guarantees for minors, (and heavy financial penalties apply for attempting to do so).

If you would like Sinclair + May to check over your current waiver, or create one for you, give us a call as we would love to assist you.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Oct 8, 2018