Merely having a waiver for your business is not enough. Here’s why!
October 29, 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.
For many growers, the biggest barrier to pursuing a claim is not the legal process itself. It is the relationship. In regional communities, suppliers, agronomists and growers often work together over many years, and many farmers are understandably reluctant to raise concerns if they believe it may damage a valued business relationship. Recent discussions regarding the performance of certain canola varieties have highlighted an important issue for farming businesses: protecting your legal rights does not necessarily mean taking an aggressive approach or ending a long-standing commercial relationship. Where concerns arise about the performance of a seed variety, chemical or other agricultural product, growers are often hesitant to make inquiries or seek compensation because the supplier may be a trusted local business or a person they have dealt with for decades. However, raising legitimate concerns and seeking advice should not be viewed as a personal attack. In many cases, suppliers will notify their insurer as soon as a significant claim is raised. From that point, discussions regarding liability and compensation are often managed by insurers, loss assessors and legal representatives. As a result, a grower may effectively be dealing with an insurance claim rather than a dispute directly with the supplier. That distinction is important. A claim can often be investigated and resolved without permanently damaging an otherwise productive business relationship. At the same time, growers should be aware that not every supplier is insured for every type of loss. Some businesses may not carry insurance that responds to large-scale agricultural claims, while others may not have sufficient coverage where multiple growers are affected. Early advice can therefore be critical in understanding both your legal position and the practical realities of recovery. If you are experiencing concerns regarding crop performance, keep detailed records, retain product packaging, batch information, invoices and correspondence, obtain independent agronomic advice, and seek legal advice before signing any settlement agreement, release or non-disclosure agreement (NDA). Protecting your rights does not have to mean burning bridges. Often, the best outcomes are achieved through early communication, careful investigation and practical resolution. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@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.
One of the most common concerns we hear from growers experiencing issues with agricultural products is: "I don't want to sue someone I've known for years." In regional communities, business relationships matter. Suppliers, agronomists and growers often work together over many seasons, and many farmers are understandably reluctant to take action if they believe doing so may damage those relationships. However, pursuing a claim does not necessarily mean attacking a long-standing business relationship. In many cases, the supplier will notify its insurer of the claim and the matter will be managed by the insurer and its representatives. Where insurance is available, discussions regarding compensation often proceed through the insurer's claims process rather than as a personal dispute between grower and supplier. For that reason, growers should not assume that raising legitimate concerns about product performance will automatically result in the loss of an important commercial relationship. That said, every situation is different. Some suppliers may not carry insurance for particular losses, and others may not have sufficient insurance coverage to respond to multiple large-scale claims. In those circumstances, early advice can be particularly important, both to preserve evidence and to understand the practical options available. If you believe a seed variety, chemical or other agricultural product has not performed as represented, keep detailed records, obtain independent agronomic advice and seek legal advice before signing any settlement agreement, release or non-disclosure agreement. The earlier advice is obtained, the more options are generally available. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@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.
Recent concerns regarding the performance of certain canola varieties have attracted significant attention across the Western Australian grain industry. The issue was recently discussed on the ABC WA Country Hour, where Philip Brunner, Director of Bailiwick Legal, commented on the legal issues that may arise when agricultural products fail to perform as expected. Farmers understand that crop performance can be affected by seasonal conditions, rainfall, frost, pests, disease and other factors beyond their control. However, different considerations may arise where a seed, chemical or agricultural product does not perform consistently with the representations made by the supplier at the time of sale. A well-publicised dispute involving John Snooke, a grower from Cunderdin, highlighted these issues when concerns were raised regarding the performance of a herbicide-tolerant canola variety. Following intervention by the WA Department of Consumer Protection, compensation was ultimately paid to affected growers. As input costs continue to increase, growers should be aware that legal protections may be available where a product: Does not match its description; Is not fit for its intended purpose; or Fails to perform in accordance with representations made by the supplier. If a crop is underperforming, growers should retain seed tags, invoices, marketing materials and paddock records, obtain independent agronomic advice and notify the supplier as soon as possible. Early evidence can be critical in assessing whether a legal claim may exist. Importantly, growers should not sign any settlement agreement, release or non-disclosure agreement (NDA) without first obtaining independent legal advice. These documents may limit future rights or prevent growers from discussing the issue with others who may be similarly affected. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@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.
