WA Witness shortage to Activity Waiver

Discussion in 'Australian Consumer Law Forum' started by Corigins, 10 August 2018.

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  1. Corigins

    Corigins Member

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    Hi
    About to operate an activity in my retail shop and while the risk is low to the participant, I still wanted to write in an activity waiver to cover myself anyway.

    However as is required, I think I'm going to be short a witness whenever I ask the participant to sign an agreement to the waiver including other conditions. The reason is I usually work alone and one or more participants may be in my shop to use the service, however I will be without a witness to cosign. I could have new participants in my shop up to 6 times a day (1 per hour) to acquire the service and I need a witness it appears every time?

    Am keen for some advice on the options please?
     
  2. Rob Legat - SBPL

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    A witness may be preferable, but it may not be necessary. There are only certain documents which must be witnessed by law. Other than that, a witness really fulfils a mechanism to support that the agreement was signed by the person who is purported to have signed it. At a guess, I would say the main reason why you would want a witness is so that you can 'prove' the participant was given sufficient notification of particular information or agreed to the terms of participation. There are other ways to achieve this. And, to be honest, having a witness might be the 'accepted' medium - but it isn't a guarantee of protection.

    Some of these suggested methods may not work for your circumstances, and I would suggest a combination of them should be implemented rather than any one by itself. Largely, it will be a case of something is better than nothing:

    1. Witness it yourself, but include a clause stating that you confirm you have provided the participant with a copy of the waiver to read and consider before signing;
    2. Have the participants witness each other's, making sure you obtain sufficient contact details to find them later;
    3. Send out a copy of the waiver beforehand by email stating that participation is subject to agreement to the terms of the waiver. As a bonus, get them to somehow confirm electronically (which could be as simple as emailing back;
    4. Incorporate their receipt for payment into the waiver document;
    5. Have a written policy stating the manner in which the participants are advised and communicate agreement to the waiver, stick to it, and document that you stick to it; and/or
    6. Have them sign the waiver, and then take a photo of them holding the signed waiver. A little invasive, but good luck to them trying to convince a court they didn't sign it.

    What I would strongly suggest as well is talking to your insurer and see what they will accept. It will likely be them you will have to convince at some early stage.

    Bear in mind that there are other concerns you must account for:

    - Where there are children involved (your duty of care goes up - and usually when working with kids you should/must have a second adult present at all times). The same when working with people who are physically or mentally challenged;
    - If you are legislated to operate in a particular manner;
    - If you are bound by/have agreed to a particular industry code of conduct. Failure to adhere to that can cause you all sorts of problems with courts and insurers; and
    - In general, consider whether you can provide a professional service and comply with your duty of care requirements.
     
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  3. Corigins

    Corigins Member

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    Thank you Rob, great advice and certainly unties some restrictions placed on me. Is it only legally binding if the waiver and signatures are on the same piece of paper? You see I have the waiver protected in laminate and another piece of paper with signatures which I can't help but think might be in error.
     
  4. Rob Legat - SBPL

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    In terms of being on the same piece of paper, while that is safest you don't need it to be done this way to still be safe - provided you do it the right way. Your biggest issues are then proving that they (a) considered the waiver before signing the other page and (b) that they considered the correct version of the waiver.

    You do this by:
    - Putting a version date and/or version number on the waiver;
    - Clearly stating on the signing page that they are agreeing to a specific version date and/or number of waiver, and having that match what is on the waiver exactly; and
    - Prominently and clearly stating before the signature (in such a way that they cannot reasonably miss it) that they must not sign the page unless and until they have considered that version of the waiver.

    Realise that nothing is foolproof. Although anecdotal, I have been involved in a case where despite the business physically handing the waiver to the consumer, the consumer agreeing in open court that this was done, and the consumer agreeing they understood they were supposed to read and agree to the waiver, the court found ignored the waiver because: they did not actually read it, and they didn't agree to it despite not actually telling the business they didn't agree to it and acting in a manner which could be considered to have agreed to it.
     
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  5. Corigins

    Corigins Member

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    Thank you, virtually describes what I have done to a T
    Have a great weekend!
     
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