Why a liability waiver is a must have for your tourism business

One of the top areas we are asked about by businesses operating in tourism is limitation of liability and waivers. Do I need a waiver? What should be included? Can I use my friend / competitor’s waiver?

Tourism businesses, specifically those offering tours and activities, appreciate that there are a number of, often uncontrollable, variables which impact upon their offering: the ability, age and health of participants, the conduct and actions of other participants and third parties, weather conditions, water conditions, equipment failures and the like.

Your clients may suffer loss and injury, whether or not there is any fault on behalf of your business.

Showing people a good time can be risky, so it is important to have an appropriately drafted waiver in place to reduce your risk and assist to protect your business.

Who is responsible for loss and damage?

There are a number of factors involved in the relationship between a client and the tourism provider. There will be:

all of which place obligations and responsibilities on tourism service providers in their relationship with a client.

These responsibilities are in place to protect clients, however they can also place significant risk on the business.

There are a number of strategies available to limit this type of risk, one of which is a waiver and release of liability.

What does a waiver do?

The waiver (and release) is an agreement which releases the party who is providing the service from liability claims raised by the client.

Liability waivers seek to shift the liability from your business to your client.

It is important to note here that:

A waiver is an essential document for tourism operators providing activities and or tours to the public, to protect their business by minimising liability in the event of an accident, injury or damage.

Things to consider

There are a number of things to consider when preparing or reviewing your liability waiver:

  1. Each activity or tour involves different risks and liabilities. Has your waiver been prepared with this in mind? It is usually advisable to list the most common risks in the waiver itself so that the client is fully informed;
  2. Who is covered by your waiver? The actions and conduct of your employees and third party providers (where engaged), should be addressed in your waiver;
  3. It is important to ensure clients assume both the risk and provide a release of your business from liability. There are specific rules that relate to assumption of risk and your waiver may be used as evidence that the client has assumed specified risks;
  4. How does your waiver deal with minors? If clients are under the age of 18 you should ensure that a parent or legal guardian agrees to your waiver and releases your business from liability for and on behalf of the minor;
  5. Is your waiver clear? Take care to ensure your waiver can be easily understood and is clear as to what rights clients are foregoing if they agree to your terms. If your waiver is unclear or ambiguous, a court may question whether your waiver has the effect that you claim.

Having an appropriately drafted waiver not only reduces your risk of liability, but also ensures that the client is fully aware of the risk of participating. It may even reduce your insurance premiums.

However, a waiver is not a get out of jail free card, and it is still important that you ensure that all appropriate and reasonable steps are taken to prevent any loss or injury being incurred by a client.

By Kimberly Jones (Solicitor)

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at kim@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.

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