What is a waiver?
A waiver is a legally binding contract, in which the participant in an activity agrees not to hold the organization responsible or “liable” for any injuries that the participant might receive as a result of participating in the organization’s programs.
A waiver is a very onerous contract because by signing it, the participant agrees not only to expose him or herself to the physical risks of the activity, but also to the legal risks.
Guidelines to Follow When Drafting a Waiver
- Before you forge ahead with a waiver of liability, consider whether an alternative written agreement is more suitable. Alternative agreements are those that ask participants to consent to the physical risks of the sport activity, but not the legal risk of your negligence. These agreements are called Informed Consent.
- Waivers should be use for events such as field trips or social outings where high risk activities are involved such as travel or rough terrain, alcohol or physical contact. A waiver should not be used when academic assessment is a requirement. In these situations an informed consent agreement should be used. (see below)
- Your waiver must specifically state the obvious and foreseeable risks, dangers and hazards that you are asking the participant to accept
- Be sure to include within the waiver all the parties you want to have covered, as well as all activities
- Develop procedures and guidelines that will help ensure consistent administration of waivers within your department.
- Attitude is important. A waiver is a very serious contract and should be treated in a serious manner. If your program officials, staff or volunteers treat waivers casually, then participants will also.
- Have the Director, Risk and Insurance Services review what you have prepared. USE THE TEMPLATE PROVIDED IN THE RISK MANAGEMENT MANUAL (see link below)
- KEEP IN MIND THAT A WAIVER IS SPECIFIC TO YOUR UNIQUE CIRCUMSTANCES. IN OTHER WORDS, DON’T JUST COPY SOMEONE ELSE’S WAIVER FORM AND CALL IT YOUR OWN.
Informed Consent, Assumption of Risk Agreements
Alternatives to waivers include informed consent, and assumption of risk agreements agreements. These alternative forms differ from waivers in that parties signing them are only consenting to the known and foreseeable physical risks inherent in the activity and not to the legal risk of negligence.
These alternative agreements can serve as strong educational tools and may be a deterrent to legal action. Like waivers, they must be written and executed with care. To establish voluntary assumption of risk these agreements must satisfy three important criteria:
- negligence is never one of these inherent risks;
- the participant must have a knowledge, understanding, and appreciation of the risks; and
- the participant must voluntarily consent to be exposed to the risks.
Informed Consent: An informed consent form should be used for all field trips or other activity where participation is compulsory or where there is a requirement for academic assessment and/or for participants who are under the age of eighteen years (18). Where risks inherent in the activity are extremely high (High Risk Activity), organizers should consider alternative activities, or make the activity voluntary. In the case of a high-risk event where no alternative is available a waiver should be implemented, and an alternative method of assessment should be provided to those who do not want to participate.
A waiver must be specific to your facility, equipment, program, personnel and participants. A good waiver clearly identifies what the risks are, and these will vary depending on the activity, type of program, the location or site, age and skill of participants, and your organization’s staffing and volunteer situation.
For more information, please refer to the Risk Management Manual.