Merely having a waiver for your business is not enough. Here’s why!
January 5, 2026
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Waivers are vital for businesses seeking to reduce their risk of liability, particularly those providing high-risk related activities and services. However, merely having a waiver is not enough. It is also of importance to consider how the waiver is to be incorporated into your contractual arrangement with the participant.
What is a waiver?
A waiver is a legal instrument evidencing a persons act of intentionally relinquishing or abandoning a known right or claim. Waivers are commonly utilised by businesses to obtain agreement from a participant to ‘waive’ the participant’s right to make a claim against the business if they suffer any damage or injury arising from their participation in activities or services provided by the business. If properly drafted and accepted, a waiver will allow a business to potentially avoid liability if a participant suffers damage or injury in connection with the business’ activities.
Importance of implementation
The recent case of Marks v Skydive Holdings Pty Ltd
[2021] VSC 21 in the Victorian Supreme Court emphasises the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business. Businesses cannot merely rely on the existence of a waiver (even if signed by the participant) to automatically entitle it to protection from liability.
In this case, Ms Marks sued Skydive Holdings Pty Ltd (‘Skydive’) after sustaining serious injuries arising from a heavy landing. One of the issues considered by the Court in determining the cause of Ms Mark’s injuries (and whether Skydive had any liability), was whether the waiver signed by Ms Marks provided Skydive with a complete bar to any liability.
Prior to Ms Mark’s participating in the activity, Skydive provided Ms Marks with, and she signed, a waiver indemnifying Skydive from loss or damage suffered in connection with the skydiving activity. However, the Court held that the waiver could not be relied upon as a complete bar to any liability because it did not form part of the contractual arrangement entered into with Skydive at the time Ms Marks booked and paid for the activity.
The waiver was provided to Ms Marks at its place of business on the day of her skydive. It was not provided to Ms Mark’s at the time she booked and paid for the activity online, nor was it mentioned in the booking confirmation or the terms and conditions signed by Ms Marks.
Had the waiver been provided to Ms Marks during the course of the booking process, perhaps the outcome may have been different.
Jumping with caution
This case provides a timely reminder of the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business, particularly those providing high-risk related activities and services. Merely having a waiver for your business is not enough.
By Danielle Edwards (Associate)
If you would like further information in relation to how the above matters may affect your business or assistance with preparing and implementing a waiver and or terms and conditions for your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Bailiwick Legal Advises on Landmark Acquisition of Rawlinna Station by Consolidated Pastoral Company
Bailiwick Legal is proud to have acted for Consolidated Pastoral Company (CPC) in its successful acquisition of Rawlinna Station , Australia’s largest sheep station, located on the remote Nullarbor Plain in Western Australia. Spanning over 1 million hectares and running approximately 30,000 sheep , Rawlinna is an iconic pastoral asset with a rich legacy, having been held by the MacLachlan family’s Jumbuck Pastoral Company since its establishment in 1962. The sale marks the first change of ownership in over six decades and was finalised following formal approval from the Western Australian Government for the transfer of the pastoral leases. This transaction involved navigating: The transfer of three separate pastoral leases Coordination across multiple vendor entities Consideration of livestock and operating assets Fulfilment of regulatory and compliance requirements, including WA lease approval processes Bailiwick Legal is a boutique agricultural and regional law firm , proudly based in Perth and Bridgetown, Western Australia. Our role in this acquisition demonstrates that deep sector knowledge, local insight, and personalised legal support are crucial for agribusiness clients managing complex, high-value transactions. Our team, led by our regionally-based solicitor, Matilda Lloyd, provided end-to-end legal and strategic support, including: Due diligence on land tenure and operating assets Contract negotiation and preparation Advice on regulatory approvals and compliance Strategic coordination with CPC’s internal and external stakeholders to ensure a smooth and timely settlement We are honoured to have supported CPC in this milestone acquisition and look forward to watching Rawlinna’s next chapter unfolds. At Bailiwick Legal, we believe that regional expertise, deep industry knowledge, and relationship-based service remain essential to agribusiness success, no matter the scale. Congratulations to all parties involved, including the MacLachlan family, whose stewardship of Rawlinna leaves a lasting legacy in Australian agriculture. – The Bailiwick Legal Team Working alongside agribusinesses to grow, transition, and thrive . For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Matilda Lloyd (Associate) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Our June 2024 newsletter is now available. Have a read to find out what we have been up to in the first half of the year!
The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
