Keeping people safe is part of the job as a tour and activities provider, but accidents happen. Not just in activities that carry an unavoidable level of risk, like white-water rafting or skydiving. They happen on walking tours, at kayak lessons, on the slopes — if people are involved, they will find ways to hurt themselves. That’s why it’s so important to be prepared with a solid liability waiver.
When a guest is injured and lawyers get involved, fault is the first thing they want to establish. In the eyes of the law, accidents are rarely just accidents. They’re the result of someone’s negligence — and in the case of a guest being injured during your tours or activities, the courts may decide that someone is you. If that happens, your company could be on the hook for medical costs, lost wages, court costs, damages for pain and suffering, and other costs.
For example, in 2015, a couple sued their tour operator because they suffered food poisoning during their vacation. The tour operator offered a £400 gift voucher. The judge awarded the couple £4400 instead, which, according to the law firm who represented the couple, “included compensation for not only the pain and suffering caused by the illness but also the loss of enjoyment of their holiday, foreign prescription medication costs and miscellaneous expenses such as telephone calls.”
Serious injuries are far more expensive, and one major lawsuit can easily sink a small business. That’s why tour and activities companies get liability insurance, and that’s why they have guests sign liability release waivers.
When signing a waiver, a guest agrees to give up (or waive) the right to sue you for any accidents or injuries that occur during your tours or activities. Waivers are contracts that shield your business from those costs. They lay out the reasonable risks a guest needs to know about and let guests decide whether they’re willing to take those risks. If they are and they sign the waiver, your company may be able to avoid being found liable for any incidents.
Limitations of Waivers
You may have heard that liability release waivers don’t hold up in court or that courts always side with injured parties, but that’s not true. With solid waivers, tour and activity companies often successfully protect themselves from lawsuits. A survey of 44 court cases involving waivers of liability in Manitoba found that exactly half were decided in favor of the defendant. In all those cases, waivers did their jobs.
On the other hand, waivers aren’t get-out-of-lawsuits-free cards. The courts often find reasons to ignore them. Gross negligence — defined as a complete disregard for the safety of others — is hard to excuse with a liability waiver. Factors like insufficient instruction and poorly-maintained equipment can also impact whether or not they’ll be upheld. Beyond that, your guests need to be aware that they’re signing a waiver. Hide it too well in the fine print and a judge may decide that the guest couldn’t reasonably know what they were signing.
No matter the details of any specific incident, the language of your waiver needs to be clear, specific, unambiguous, and iron-clad. In the case of Emma Moore v Hotelplan Limited t/a Inghams Travel, the court ruled against the defendant in part because their waiver included these fateful words:
“… We also accept responsibility for what our employees, agents and providers do or do not do.”
While that language may have been reassuring to guests, it also gave the courts room to decide in the plaintiff’s favor. Inghams Travel had little to do with the accident — a third-party provider was involved — but their waiver made it clear that they were legally responsible.
Tour and activity providers are part of a risky industry, so you need to do what you can to limit risks to your guests and to yourself. Waivers may help you protect your company in the case of an unfortunate accident. Without them, it’s just a matter of time.
By providing a clear, concise liability release to your guests, you can be sure everyone knows their rights and responsibilities. With that out of the way, you can get back to giving your guests the time of their lives. No need to worry that a single misstep could be a lawsuit waiting to happen.
Rezgo makes collecting waivers at the point of sale easy, so don’t wait. Consult with a legal professional today, and start protecting your company.