Nine years ago, a Victorian court case significantly diminished the rights of injured people to argue that a bad waiver should be struck out. In the Bounce case, the court upheld one of these waivers for the first time.
This historic case has left its mark on the Victorian recreational services landscape. As a result of Rakich v Bounce, consumers can no longer be reasonably confident that they will be recompensed if injured. Schools can no longer adopt the presumption that a broadly worded waiver is unlikely to be valid.
Despite this, we still see documents from camp and excursion providers seek to include unacceptable waivers, often on the basis of “our insurer says we have to include this”.
Needless to say, schools should take pause before bundling waivers into the excursion documentation.
Heading outside the school gates
Snowboarding. Horse-riding. Rock climbing. Hiking.
Immersive experiences such as outdoor, wildlife and adventure excursions, help create rich educational experiences for students and are thought to deepen the benefits of in-class education.1 These activities are often classed as ‘high-risk recreational activities’ and are facilitated by third parties with specialist expertise, equipment and licenses. Arrangements with these providers will often involve a liability waiver, sometimes as a condition of student participation.
Knowing these cannot be signed by the school on behalf of students,2 schools will often pass these on for signature by a parent or carer.
However, while waivers have become a mundane part of the consumer experience, they are not toothless. Additionally, the education context brings further matters to consider – some of them quite complex.
Common ‘red flags’
While, the non-delegable duty of care prevents schools from ‘pointing the finger’ at a third party provider, even if that provider holds the expertise, a school should not be quick to accept a waiver of liability as it can affect the school’s commercial position.
Although a waiver of liability can appear to be a checkbox measure, there are common ‘red flags’ which indicate an inherent conflict with the function of a waiver and a school’s obligations and activities.
For instance, issues arise when a third party waiver:
- is not with the school (who is the party procuring the services)
- purports to remove rights from a student
- asks a parent/carer/guardian to guarantee or agree to something when they won’t be present to supervise
- seeks to exclude liability for negligence or for failure to exercise due care and skill
or even –
- has permissible liability exclusions which could result in an injured party pursuing a school for costs, instead of the provider.
This last ‘red flag’ has become more prominent in recent years. Historically, waivers have been difficult to enforce because they are frequently too broad and considered largely unenforceable due to public policy. However, in the November 2016 Bounce decision, the Supreme Court of Victoria reversed the historical position on appeal in favour of the provider, and not the injured person.
Rakich v Bounce
Clinton Sean Rakich3 was an adult who attended Bounce Inc, a trampoline centre, with friends at 9pm on a Thursday night. Part-way through the evening, he joined a game of ‘dodgeball’ on a framework of sixteen trampolines separated by padded steel framing. During this game, Mr Rakich landed awkwardly on a padded beam, resulting in a significant tibial injury to his right leg.
As well as claiming that Bounce had failed in its duty of care to provide adequate warning and safety information, Rakich argued that Bounce was wasn’t able to rely on their waiver.
Under the Australian Consumer Law (ACL), providers have to guarantee the use of due care and skill and fitness for a particular purpose. However, recreational service providers can be excluded from these guarantees if their terms meet very specific conditions.
Mr Rakich contended that Bounce could not access the exclusion because the terms did not meet the pre-conditions. Specifically, he argued that:
- If the exclusions were to be read as one whole, then they were broader than what was allowed and therefore all exclusions of liability had to be struck out.
- Alternatively, if the exclusions could be read as separate terms, then the specific conditions under the ACL had not been met.
Ultimately, the Court determined in favour of Bounce. It both read down the parts of the waiver that were too extensive to fit within the ACL’s parameters, as well as read the exclusion terms as a whole (recognising the presence of the specific conditions). Mr Rakich’s claim for damages was dismissed.
And whilst the Bounce case does not impact the non-delegable duty of care which schools owe to students, it means that even if a school does everything right by the children in its care, taking all reasonable steps to reduce the risk of reasonably foreseeable harm, it could still be left ‘holding the bag’ for loss and damages in the event of an incident.
For schools which are coordinating excursions involving high-risk activities across classes of diverse ages and abilities, even a brief waiver can now pose a substantial financial risk.
Dissolving the deadlock
We are increasingly seeing contention between third party providers who insist on their standard form waiver as a precondition to engagement, and schools who are unwilling to endorse the documents to parents/guardians.
But whether or not students are able to access enriching activities outside the classroom should not be at the mercy of the waiver.
How we can help
If you have a waiver with red flags on your desktop, the Education Team at Moores has successfully provided schools with pathways for managing the commercial risks and negotiating amendments with third parties. Subscribe to receive updates when we release our Excursion Risks Toolkit, and reach out for support putting proactive resources in place so that your school is on the front foot with a clear position and mechanisms for navigating provider expectations.
Contact us
To mitigate risks to your school whilst preserving and promoting rich educational experiences for students, contact Cecelia Irvine-So for further support and subscribe to receive updates directly in your inbox.