Overview
In providing extracurricular activities to their students, schools and colleges typically ask parents to sign a consent or permission form on behalf of the student – and many of you will recall signing plenty of these for your own children!
A consent form will also usually provide for a waiver of liability, seeking to exclude the school from any liability if the student suffers harm as a result of participating in the relevant activity – whether a sporting activity conducted on-campus, or an external competition, excursion or camp.
But to what extent is a waiver enforceable, and what are some alternative means for a school to seek to exclude liability if a student is injured in the course of an extracurricular activity organised by the school?
Potential sources of liability
In offering extracurricular activities, a school or college can be considered a provider of recreational services, within the meaning of both the Australian Consumer Law – as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA) – and the Civil Liability Act 2003 (Qld) (CLA).
Under the Australian Consumer Law, all suppliers of services of any kind are taken to guarantee that the services are provided with due care and skill, are fit for their intended purpose and are provided within a reasonable time (Consumer Guarantees).
The Consumer Guarantees are ordinarily not capable of being excluded, but in the case of a recreational services provider, section 139A of the CCA permits the provider to exclude liability for any death, physical or mental injury, disease or aggravated condition suffered by a person arising from breach of the Consumer Guarantees relating to a recreational activity.
The Consumer Guarantees are entirely distinct to ordinary general law negligence liability that may apply if a person is injured as a result of a recreational activity.
However, section 19 of the CLA provides for an exclusion from liability when a person suffers harm from an “obvious risk” arising from participation in a dangerous recreational activity.
Waivers – including appropriate risk warnings relating to the specific type of activity – are a common way in which providers of recreational services seek to limit both their liability for breach of the Consumer Guarantees, and a negligence claim, if a participant is injured in the course of a recreational activity.
Are waivers enforceable?
In the case of a school or college, there is a further complication, in that the participant in an extracurricular activity will be a minor.
The courts have held that contracts are not enforceable against minors unless they relate to “necessary” goods or services, and are for the overall benefit of the minor. Arguably, recreational activities are not “necessary” to a minor, and a waiver of liability is not for the benefit of the minor.
On that basis, a waiver from the student is unlikely to be enforceable. Flowing on from that, a waiver from a parent or guardian on behalf of the child could also be unenforceable.
Alternative option – seeking an indemnity from liability from a parent or guardian
Although the position on waiver enforceability specifically in the context of a recreational activity is yet to be finally decided by the courts, to minimise risk exposure from a potential claim, it is best-practice for schools and colleges to seek an indemnity from a parent or guardian (included in the same waiver/consent from issued before a student takes part in a recreational activity).
The indemnity is essentially an agreement between the school and the parent/guardian, in which the parent/guardian agrees to hold the school harmless against any claim the student may have if they suffer an injury in the course of participating in the activity.
What should you do as a school or college?
For schools and colleges, we recommend you review your standard-form waivers and permission slips that you ask parents and guardians to sign on behalf of their children in relation to any extracurricular activity the school operates. You should ensure there is a clear warning as to the potential risks that may arise from the activity, and that any exclusion of liability extends to both the Consumer Guarantees and negligence.
Further, you should seek an indemnity from the parent or guardian before allowing the student to participate in the activity to enhance the scope of the school’s protection from liability if the student suffers an injury in the course of the activity.
At K2 Law, we have a dedicated, full service commercial team which is highly experienced in these matters. Please get in touch if you would like us to assist you in reviewing your standard-from waivers and advising on your liability risks.
For a further discussion, please get in touch with James Barritt or Peter Kumnick.
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