As a professional working on the legal side of sport and recreation, I am often asked questions along the lines of the following: “When I register my child in a program, we are asked to sign a waiver form. Do these have any legal validity?” What follows is my answer to a not-so-simple question.
Any adult who is physically active, or who is a parent with children involved in sports, has signed waivers at one time or another. This question about their validity arises all the time – I could be doing a workshop on employment contracts, and invariably a participant asks this question at some point!
The answer is – both yes and no. Waivers are hopelessly misunderstood and are often improperly used. Most people who sign them think they are meaningless (and if they thought otherwise, they wouldn’t sign them!). Most organizers who use waivers don’t really think …the person who signs a waiver agrees to forfeit their legal right to pursue a legal remedy, should they come to harm as a result of their participation and should this harm be caused by the organizer’s negligence (as opposed to being caused by other factors).about them at all, but just consider them to be part of the necessary registration paperwork. To answer the above question, some legal background is needed.
The term ‘waiver’ is short form for ‘waiver of liability for negligence’. A waiver is a contract by which the person signing it agrees to give up something. They are ‘waiving’ a right or entitlement that they otherwise would have. In the sporting context, the person signing it is usually a participant in a sport program or activity who agrees, by signing this contract, that they will give up their right to sue the organizer of the program or activity for negligence. In other words, the person who signs a waiver agrees to forfeit their legal right to pursue a legal remedy, should they come to harm as a result of their participation and should this harm be caused by the organizer’s negligence (as opposed to being caused by other factors).
It should also be noted that ‘negligence’ is a precise legal concept. Being negligent means that a person who had a duty of care towards another did not fulfill the reasonable standard of care that such duty imposed. Put another way, negligence may result when an organizer fails to behave as a reasonably prudent person would behave. To be negligent is to have failed, legally, in fulfilling your ordinary and reasonable responsibilities. Our legal system provides that someone seriously harmed by such a failing has a legal remedy.
A waiver is thus a method a sport organization uses to transfer risk, in this case from the organization back to the participant. That is essentially what any contract does, and a waiver is simply a very specific form of contract. A waiver is also said to be a very onerous contract, because by signing a waiver, a person is relinquishing a very closely held and important right – the right to seek compensation or legal damages in the event that person is harmed by another person’s negligence. Put another way – when I sign a waiver …waivers have no legal effect if used for children. Remember that they are an onerous legal contract and minors cannot sign contracts, and likewise, parents or guardians cannot sign contracts on behalf of a child that are not in the best interests of the child. I am essentially agreeing that if the organizer of the program I am enrolling in is negligent, I will accept the result of that and not pursue any legal action.
In my opinion, waivers are perfectly acceptable from a legal and contract point of view. Transferring risk is a good risk management practice for any sport organization. In certain circumstances waivers are a good idea – where the activity is inherently risky, the environment in which the activity occurs cannot readily be controlled or managed, and the participants are skilled adults. Back-country skiing, deep sea diving or bungee-jumping might be examples of situations that call for adult participants to sign a waiver.
Waivers can and do hold up legally, when they are properly written and executed and when they are used in appropriate high-risk situations with adult participants.However, the use of waivers also raises many ethical and moral issues. The organization that uses them is attempting to contract out of legal responsibility for its own negligence. This may be appropriate in certain limited circumstances. In my view, however, using waivers for ordinary sport programs or after-school recreational activities is not appropriate. As well, waivers have no legal effect if used for children. Remember that they are an onerous legal contract and minors cannot sign contracts, and likewise, parents or guardians cannot sign contracts on behalf of a child that are not in the best interests of the child. A waiver is never in the best interest of the person who signs it – in fact, it is a terrible bargain all around when you consider what is forfeited (the right to sue for liability for negligence) versus what is gained (the opportunity to participate in a particular sport activity).
So what is the short answer to the above question? Waivers can and do hold up legally, when they are properly written and executed and when they are used in appropriate high-risk situations with adult participants. However, the vast majority of waivers are poorly written, casually executed, used for minors and used in low-risk situations that simply do not justify their use. These waivers would not withstand legal scrutiny.
This is not to say waivers are a wasted effort – they aren’t – because a fortunate side benefit of using a waiver is that it brings to people’s attention that the activity being undertaken presents risks and a participant could be harmed as a result of those normal and inherent risks. Thus, they have considerable educational value, and education of participants and/or their parents is always a good idea.
This article was originally published as a Risk Management Expert column on the website of Imagine Canada. It was later republished in the quarterly newsletter of the Sport Law & Strategy Group. It is reprinted here with permission.