What is a waiver?
A waiver is a legal document or clause in a legal document that seeks to limit the liability of an organisation in the event that a participant suffers a loss or injury. This limitation of liability can only be done within the framework of the relevant laws of the State or Territory, or they will be deemed void.
Waivers may have greater benefits in managing risk by highlighting the hazards inherent in the activity to the participant. Making the participant aware of these dangers may cause them to modify their behaviour and therefore make safer decisions. It also prevents any claims later on that the participant was not aware of the activity’s risks.
Additionally, by including a self-assessment in the risk acknowledgement declaration, it provides some protection for the organisation if there is a claim arising from the incompatibility of a horse and rider. It places some liability back on the participant who overrates his or her ability to the organisation or business.
Waivers and risk acknowledgement declarations are essential for organisations, businesses and individuals in the horse industry. Whether you are a large riding school, an event organiser, a private instructor, or a potential buyer riding a horse for sale – waivers and risk acknowledgements are very important to ensuring everyone is aware of the risks involved and where the liability falls should there be an accident.
When is a waiver not enough?
It is a common misconception that a waiver in a contract will protect an equine professional from any and all liability when someone is hurt (or dies) whilst engaged in an equine-related activity. While waivers should be used, it is not the case that they can protect you from all liability whatsoever, and the consequences of misunderstanding your legal obligations may have a severe impact on your business.
The law recognises that horses (or other defined equine) are big, unpredictable and easily startled (amongst other things) and cannot always be controlled by an equine professional. The law recognises those characteristics to be the inherent risks of equine activities and does not impose liability for personal injury on an equine professional for injuries caused by those inherent risks. That protection, however, does not prevent liability if the equine professional:
1. Provides faulty equipment or tack to a participant, when the equine professional knew or ought to have known the equipment was faulty;
2. Provides a horse to a participant, but failed to make reasonable and prudent efforts to assess that participants ability to safely engage in the activity;
3. Failed to fix a dangerous latent condition of the land or facility such as potholes, slippery footing or branches overhanging an arena or yard; or
4. A participant is intentionally or recklessly injured.
Equine Activity is broadly defined at law to include anything from participating in shows, fairs and competitions through to farrier work, and most activity in between.
What can you do protect yourself from liability?
Luckily there are a few steps that you can take to ensure your protection from liability if a person is unfortunate enough to be injured:
1. Display a warning sign – the Civil Law (Wrongs) Act 2002 (ACT) obliges an equine professional in the ACT to display a warning sign to the following effect.
Under the Civil Law (Wrongs) Act 2002, an equine professional is not liable for injury to, or the death of, a participant in an equine activity that results from an inherent risk of the activity. This is subject to limitations set out in the Act.
The warning notice must be in black letters with each letter at least 2cm high and displayed in a conspicuous place in proximity of the arena.
2. Get legal advice about appropriate wording to be included in your written contract, which will be provided to each participant prior to the provision of professional equine services; and
3. Make sure you have the right insurance. This insurance must cover more than the inherent risks of equine activities and should extend to circumstances in which the equine professional may have been negligence, or, for example, a horse bolts out onto a road and causes an accident.
We recommend that if you are providing professional equine services to people though teaching people to ride or by renting equipment or tack, you take care to ensure you are complying with your obligations at law and you have proper insurance in place to protect you where the law does not.
Chamberlains specialist equine law team can assist you with preparing the correct waiver’s and offer discounted packages on a range of other documents, including:
- Agistment agreements
- Training agreements
- Lesson agreements
- Syndication agreements
- Stud service agreements
- Ordinary business start-up package docs and advice
- Buy/sell agreements
- Agency/consignment agreements
- Lease agreements
- Advice on insurance policies, the relevant PI legislation and risk management
Click here to learn more about our equine legal services.