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A signed waiver does NOT release the organisation or individual
staff or person from responsibilities for the prevention of
risk. A high standard of care is still owed, quality equipment
is still expected, instructors need to be trained and qualified,
emergency procedures need to be planned and activities supervised.
The standard rises for those with special needs. Risk prevention
is the obligation of all persons and a signed waiver form
does not absolve any person from that obligation to take reasonable
care in any situation.
Wavier forms do however have the advantage of bringing to
the minds of all parties that risks exist, that measures to
prevent those risks are being taken, and a continual surveillance
of any risk is an obligation on all persons. In effect, they
can be used most effectively as a means of risk disclosure.
Waiver forms are an attempt by an organisation to transfer
the responsibility for the prevention of risk of injury or
loss of property to the participant.1
There is no requirement to use these forms. However, there
are some advantages if used correctly.
Firstly, a person can not agree to take responsibility for
prevention of risks that they do not understand and appreciate
in an EOTC activity. Secondly they cannot be said to have
assumed to accept responsibility for prevention of hidden
risks.
Therefore, releases will be most effective when:
risks are fully explained so the participant understands
them
participants are given the opportunity to ask questions
activities are entered into voluntarily (challenge by
choice).
A waiver will not pass the responsibility for prevention
of risk when the participant does not have the capacity to
understand, therefore assume, the responsibility for the prevention
of risk. For instance novices, minors and intellectually impaired
individuals in particular, can not assume responsibility for
risks that they have limited or no understanding of. But,
the release form can acknowledge their special status and
be tailored to meet that. The concept of transfer of risk
in such situations must be questionable however.
Reference
Waivers
on www.safeoutside.org.
Footnote
1. These comments do not cover the special requirements of
the Health and Safety in Employment Act 1992. For further
information, see also Liability
FAQs
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