Waivers: should your club use them?

Are they legal? Are they useful? Should you use them?

Entering Canyon Creek. Photo/Tony Mitton, FMC Individual Supporter

 

First published in the March 2021 issue of FMC’s Backcountry Magazine. Thanks to David Barnes and Dan Clearwater for writing and adapting this resource. If you have any feedback or additional wisdom to offer, please contact us.

FMC has had some queries from member clubs, asking “should we use a waiver?” Our initial response is “what exactly do you mean by waiver, and what do you want it to achieve?” The answer is usually some variation on a document that trip participants sign with the aim to absolve the club and/or trip leaders from responsibility or legal liability if something should go wrong. The second, often implied, aim is to communicate the expectations and responsibilities for the people involved in the activity.

As we shall explain, the absolving of legal liability is actually unachievable. However, clarifying expectations is a valid and important aim, which could be done more effectively using different methods. 

Legal liabilities

Attempting to use a waiver to absolve legal liabilities is actually unachievable, and here is why;  

Many of the perceived liabilities don’t exist. Clubs don’t come under the watchful eye of Worksafe. (It’s a widespread myth that their tentacles reach into every aspect of society, but they’re called Worksafe for a reason. And ACC legislation prevents anyone being sued for personal injury.)

Some liabilities can’t be avoided by signing a piece of paper. It’s theoretically possible for someone who was very negligent to be prosecuted for manslaughter or criminal nuisance for causing an accident in the hills, although we’re not aware of it happening. But a waiver would not get anyone off that hook. Fatalities on club trips will always come under the scrutiny of a Coroner. A Coroner can’t impose penalties, but they can – and have, on occasions – pass damning comments and make recommendations for future actions. A waiver won’t restrict the Coroner’s ability to do those things.

Clarity of expectations

It is important that people going on trips know what to expect, what’s expected of them, and where responsibilities lie. And that is the second aim of a waiver which is worth pursuing using more suitable methods than a document which has no legal standing.   

Many clubs have this information on websites, on trip programs or on trip sign-up sheets. If you have a form for joining the club, or a new members’ pack, those could also be good places to disseminate the information. But don’t forget to also get the information to any non-members who are on your trips too. Make sure this information is available, accessible and up to date. If the ground rules change, make sure everyone knows. Just remember that getting people to sign on the dotted line won’t actually alter anything regarding the applicable laws. 

A healthy club culture

We think that the worrying creep of the health and safety boogey-man in wider society poses long-term risks to healthy club culture. The misconception that a waiver provides protection could insidiously diminish a leader’s or club’s efforts to run trips as effectively as they can. 

If the club gets something wrong, we’d like to think that its officers had the integrity and honesty to front up. We don’t think our clubs have, or need, a culture of attempting to hide behind legalistic paperwork. 

Prevention is better than cure. Accidents will happen. Having procedures that reduce the risk of accidents and/or the harm that they can cause is both the best way of minimising harm and the best way of demonstrating that you’re trying to run a safe and responsible organisation.

The bottom line 

We think there are better ways to achieve the perceived aims of waivers.

However, if a club chose to use a waiver, it should do so with extreme caution, acknowledging the lack of legal standing and being aware of the misconceptions it could create. 

Whatever a club chooses to do, clear communication of expectations and responsibilities are essential: to not only strengthen club culture, but provide the best platform for safe and enjoyable trips. 

First published in the March 2021 issue of FMC’s Backcountry Magazine. Thanks to David Barnes and Dan Clearwater for writing and adapting this resource. If you have any feedback or additional wisdom to offer, please contact us.

Last updated: 16 January 2021

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