This article was originally written for a SupportAdventure newsletter (July 2021)
A common issue that has been raised during audits and by WorkSafe is how participants are made aware of the hazards and risks in the activity they have booked onto. The traditional terms we use for the sign-in sheet our participants use can be 'Waiver' or 'Liability Release' but with HSWA and ACC legislation, we can’t really waive risk at all: Lots of operators still consider a 'waiver' or 'liability release' to be the way to go, but Section 28 of the HSWA says this:
No contracting out
A term of any agreement or contract that purports to exclude, limit, or modify the operation of this Act, or any duty owed under this Act, or to transfer to another person any duty owed under this Act--
(a) has no effect to the extent that it does so; but
(b) is not an illegal contract under subpart 5 of Part 2 of the Contract and Commercial Law Act 2017.
The Safety Audit Standard for Adventure Activities (a document all commercial adventure activity providers should be conversant with and need to comply with) requires: “The operator must have procedures for risk disclosure between the operator and participant, and subsequent acknowledgement”.
In other words, you have to tell your clients what risks they can expect to encounter and have them acknowledge that risk. Using a clear, concise “Risk Disclosure Form” could be a better way to meet requirements.
This can be a two-way form as you can disclose the reasonably foreseeable risks in the activity and also use the form to identify risks presented by the participants, such as medical and physical conditions, etc. It’s important that the risk disclosure, required by the Standard, isn’t diluted or lost in a long wordy 'waiver' that section 28 of the HSWA says:
“has no effect to the extent that it does so”.
When you review your waiver/liability release/risk disclosure ask yourself: If a WorkSafe investigator asked your client “What were you given and asked to sign before the activity?” would they say that they were informed of the likely risks or would they say it was a generic form to “sign their life away”?
Integra/AdventureMark Blue Certification is JAS-ANZ accredited. AdventureMark Blue certification is approved by WorkSafe NZ under the WorkSafe NZ Adventure Activities Certification Scheme.
New Zealand Adventure Tourism Safety Certification
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