Contracting out of safety responsibilities
  • Riki Brown
    10
    Hi Folks
    In the adventure activity industry, many companies still use a 'waiver' - an agreement with activity participants that says (amongst other things) something along the lines of..

    "This adventure activity involves inherent risks....Company-ABC cannot guarantee your safety.....I hereby assume all risks and release all persons connected with Company-ABC from all liability of injury...I acknowledge that Company-ABC accepts no responsibility for the actions of their employees, contractors...."

    The HSWA makes it pretty clear in Part 28 that a PCBU cant 'contract out' of their responsibilities, although section (2) states it's not illegal to try.

    Is this kind of 'waiver' a hangover from the old-school days of adventure tourism that needs to be left behind as we move forward, or does it still have some legal utility?
    Riki Brown Options
  • KeithH
    173
    Hi Riki.
    In the adventure activity industry, many companies still use a 'waiver' - an agreement with activity participants that says (amongst other things) something along the lines of..

    "This adventure activity involves inherent risks....Company-ABC cannot guarantee your safety.....I hereby assume all risks and release all persons connected with Company-ABC from all liability of injury...I acknowledge that Company-ABC accepts no responsibility for the actions of their employees, contractors...."     — Riki Brown

    This is one for the lawyers. You may be correct in your conclusion or you may not be.
    An earlier discussion topic here - The Athenberry decision and "contracting out" - may be of assistance as this interpretation by WSP may also be.

    I for one, would be interested in the legal interpretation of what you ask.
    KeithH Options
  • Craig Marriott
    206
    They usually include something like 'to the extent allowable by law'.
    As far as I understand it, when it comes to meeting legal obligations, these waivers don't really have any meaning - law will always override contracts/agreements
    Craig Marriott Options
  • MattD2
    339
    A few years back Worksafe focused on trampoline parks after a number of serious injuries were occuring. At the bottom of page 2 on the bulletin they released is a note with their take on waivers - essentially not worth the paper they are written on.
    https://www.worksafe.govt.nz/assets/dmsassets/1/1673WKS-8-news-and-media-trampoline-parks.pdf
    MattD2 Options
  • Alex P
    16
    One of the adventure activity auditing bodies, in conjunction with a legal expert, recently provided some guidance on this. I'll see if I can find it and email it to you @Riki Brown

    The term 'waiver' was (and still is) commonly used by operators and implied that they could 'waive' their obligations/duties under the HSWA, which clients took at face value. This is obviously not the case, so there is a push by these audit bodies to use the term 'disclaimer'.

    Perhaps it is a small detail in the grand scheme of things, but terminology is key and operators should be getting it right and not provide detail that is misleading. My understanding is that any operator being audited and using the term waiver would then be issued a minor non-conformity.
    Alex P Options
  • Steve H
    308
    I would expect the various trials of parties charged following the White Island eruption to provide tangible guidance on the "legal standing" of "waiver" Vs "disclaimer", watch that space as and when they get to court.

    As will changes to the space these activities operate in, read my last post in this thread What Will White Island Mean For Your Business
    Steve H Options
  • SafetylawyerNZ
    86
    Steve H is right that the legal standing and effect of safety terms/waivers will be an issue considered by the Court in the WorkSafe v Whakaari Management Limited & Ors prosecution in 2023.

    For now, my take on the issue is:

    1. The Health and Safety at Work Act is clear that duty holders can't contract out of their health and safety duties.

    2. This doesn't mean that an acknowledgement form has no purpose. For example, a waiver can potentially protect an operator against civil claims (eg for damage to property or personal injury) Personal injury protection is not commonly needed in NZ because of our ACC system, but a waiver can still be useful for adventure activity operators because of the significant number of international visitors doing their activities (pre-COVID anyway).
    SafetylawyerNZ Options
  • Chrissy Hansen
    19
    Hi,
    Waivers and disclaimers are generally a statement of some of risks you may be exposed to and the company stating their non committal to any responsibility in an adverse event. Most of us know this will never stand up in a court of law. (Not worth the paper they are written on). Safety procedures must be in place as no one can contract out of their H&S responsibilities.
    Chrissy Hansen Options
  • Riki Brown
    10
    ↪Alex P
    I'd love to read that guidance if you find it!! Thank you
    Riki Brown Options
  • KeithH
    173
    @Riki Brown this link to Adventuremark may be what @Alex P is referring to.
    KeithH Options
  • Alex P
    16
    ↪Riki Brown
    , here is the link to the Risk Disclosure Template.
    Alex P Options
  • Chris Peace
    86
    Hi all
    Nobody else has mentioned section 28 of the Health and Safety at Work Act.
    Chris Peace Options
  • Mike Massaar
    85
    Obviously you can't contract out, but you can make "reasonable arrangements" with the agreement of the other party, or parties.
    Mike Massaar Options
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