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# 165543 12-Feb-2015 21:26
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Just got a waiver form from midgets school for a white water rafting trip, The interesting bit says -

'I will hold Rafting Adventure and its contracted guides harmless from any and all liability, claims, losses, damages, or expenses during or in connection with my participation in this activity''

Does anyone know if this is enforceable ? I know they will do the best job they can and there'll be a very disappointed 10 year old if I don't sign it, but should they be allowed to be as negligent as they like with (apparently) no comebacks ?




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  # 1236868 12-Feb-2015 22:21
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IANAL - but speaking of "rafts", there are probably rafts of other legislation relating to ACC, commerce, and adventure tourism which would be quite specific about not allowing an operator to ever "contract out" of liability for some negligent action by themselves.
So my guess is that as well as being a worthless piece of paper - if you signed it - they are probably breaking the law by asking you to sign it.


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  # 1236871 12-Feb-2015 22:29
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No idea. Under UK law, the Unfair Contract Terms Act 1977, it's not legally possible to contract out of liability for death or personal injury.

In NZ? Who knows. IMV the worst thing about ACC is it ensures that no one takes personal responsibility seriously because there are few (if any) consequences.

Either run it by your solicitor or sign it and strike that line through and initial it.

I did that with the agency contract our real estate agent wanted us to sign and they did not even notice!! They signed it and gave me my copy, tacitly agreeing to the amended terms.





 
 
 
 




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  # 1236885 12-Feb-2015 22:51
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Well I've seen other threads on Geekzone (can't remember which) talking about changes to rules around unfair contract terms coming into effect in March maybe, but think that was under some Consumer Affairs thing. Not sure that would count, and its obviously not March yet anyway. Maybe I'll strike it out and see what happens.




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  # 1236898 12-Feb-2015 23:30
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As we have ACC, you simply do not generally have the right to bring civil suit for damages through accident in any case, when ACC was introduced, this right to sue was removed.

You can in cases sue for exemplary damages, however if awarded, ACC can take them to reimburse for any compensation you were awarded by ACC because otherwise it is double compensation.

Negligent activity is a criminal matter, nothing you sign prevents a criminal action being taken by the crown against the parties, naturally.





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  # 1236899 12-Feb-2015 23:38
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sleemanj: As we have ACC, you simply do not generally have the right to bring civil suit for damages through accident in any case, when ACC was introduced, this right to sue was removed.

You can in cases sue for exemplary damages, however if awarded, ACC can take them to reimburse for any compensation you were awarded by ACC because otherwise it is double compensation.

Negligent activity is a criminal matter, nothing you sign prevents a criminal action being taken by the crown against the parties, naturally.



I think ACC should have a statutory duty to sue anyone whose behaviour clearly caused an accident that they had to fund.

I bet ACC's bills would fall pretty quick....





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  # 1236900 12-Feb-2015 23:43
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I gather the waiver excludes negligence as that is a criminal issue. If they took a fair and reasonable duty of care, and there was an unforeseen accident, they would not be liable, as this trip does carry an inherent risk. I expect their licence to operate covers what steps of care are legally required. Its like skydiving, accidents can and do happen, and they can be just that, unforeseen accidents. IANAL

Might this more so be avoiding losses such as customers assets, watch, etc? My mate went on one, ended up in the drink, lost watch, etc. I see that as his risk

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  # 1236919 13-Feb-2015 08:10
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Geektastic:
sleemanj: As we have ACC, you simply do not generally have the right to bring civil suit for damages through accident in any case, when ACC was introduced, this right to sue was removed.

You can in cases sue for exemplary damages, however if awarded, ACC can take them to reimburse for any compensation you were awarded by ACC because otherwise it is double compensation.

Negligent activity is a criminal matter, nothing you sign prevents a criminal action being taken by the crown against the parties, naturally.



I think ACC should have a statutory duty to sue anyone whose behaviour clearly caused an accident that they had to fund.

I bet ACC's bills would fall pretty quick....


And have even more of the population confine themselves to their sofas and lazyboy chairs in fear that the big nasty world is just too dangerous to ever venture out to do anything?

 
 
 
 


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  # 1236920 13-Feb-2015 08:23
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Fred99:
Geektastic:
sleemanj: As we have ACC, you simply do not generally have the right to bring civil suit for damages through accident in any case, when ACC was introduced, this right to sue was removed.

You can in cases sue for exemplary damages, however if awarded, ACC can take them to reimburse for any compensation you were awarded by ACC because otherwise it is double compensation.

Negligent activity is a criminal matter, nothing you sign prevents a criminal action being taken by the crown against the parties, naturally.



I think ACC should have a statutory duty to sue anyone whose behaviour clearly caused an accident that they had to fund.

I bet ACC's bills would fall pretty quick....


And have even more of the population confine themselves to their sofas and lazyboy chairs in fear that the big nasty world is just too dangerous to ever venture out to do anything?


Yep. I can see the day coming:

Bob: I was hit by a car while crossing the road

ACC: Were you on a zebra crossing?

Bob: Yes.

ACC: Was a traffic safety officer present while you were crossing the road?

Bob: No, but I was just crossing the road.

ACC: Were you wearing a high visibility vest and safety boots?

Bob: Well, no but I was just crossing the road

ACC: Sorry, we can't cover you for this injury due to non-compliance with political correctness rules.






My views (except when I am looking out their windows) are not those of my employer.



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  # 1236984 13-Feb-2015 09:00
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Thanks for all the comments everyone.

The ACC info and negligence being a criminal matter is interesting (suppose its obvious if I'd have thought about it a bit more). Just thought the clause seemed a bit 'no matter what we do we're not liable anyway' kind of thing.

Am sure they will be careful and responsible, and I doubt if white water rafting for 10 year olds will involve much actual white water anyway. Also not very bothered about things getting wet that shouldn't and minor stuff like that. Like you say, nothing is risk free.

Besides, wrapping the kids up in cotton wool got a bit expensive and used to get some funny looks at New World buying 20 rolls of the stuff every day....




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  # 1236993 13-Feb-2015 09:08
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tdgeek: I gather the waiver excludes negligence as that is a criminal issue. If they took a fair and reasonable duty of care, and there was an unforeseen accident, they would not be liable, as this trip does carry an inherent risk. I expect their licence to operate covers what steps of care are legally required. Its like skydiving, accidents can and do happen, and they can be just that, unforeseen accidents. IANAL

Might this more so be avoiding losses such as customers assets, watch, etc? My mate went on one, ended up in the drink, lost watch, etc. I see that as his risk


it depends how he fell into the drink, if he was knocked in by the guide doing something stupid then the company would be responsible and it's the same with the waiver form . 




Common sense is not as common as you think.


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  # 1237063 13-Feb-2015 09:51
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Geektastic: 
I think ACC should have a statutory duty to sue anyone whose behaviour clearly caused an accident that they had to fund.

I bet ACC's bills would fall pretty quick....


That would result in NZ ending up with the same bollocks ambulance chasing lawyer situation that Australia and the US have.  Why do you want to destroy everything good about NZ?

The reality is that if someone CAUSES an accident through negligence, the criminal justice system deals with it, as it should.

And ACCs bills don't need to fall.  In the grand scheme of things, ACC holds a massive surplus of cash due to their extremely effective investment fund managers (same with the Guardians of the NZ Superannuation Fund).  The only reason you ever hear that ACC is making a loss is that National changed the accounting principles, requiring ACC to bring forward the LIFETIME cost of long term claims into the current financial year (which, incidentally, no private insurer has to do - and is the exact same thing but with pension payments that made the US Postal Service look unprofitable on paper when it actually has a very large cash holding).

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  # 1237096 13-Feb-2015 10:12
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I would imagine if something happened due to criminal neglect crap would descend upon them. They cannot contract out of that.




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There is no planet B

 

 


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  # 1237130 13-Feb-2015 10:37
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Just as an aside are the crowd running this on the adventure activity operators register

 

http://www.dol.govt.nz/Tools/AAOAudit/Audit/register

 

 

As of 1 November 2014 all adventure activities operators must pass a safety audit and be registered.

 

 

That waiver is unlikely to exclude them from The Health and Safety in Employment (Adventure and Activities) Regulations (2011)

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  # 1237137 13-Feb-2015 10:45
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are they an Australian company?




Involuntary autocorrect in operation on mobile device. Apologies in advance.




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  # 1237160 13-Feb-2015 11:40
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On the waiver form they are called Rafting Adventure. I think, if I have found their actual website (and not someone else's), they are more officially known as Rafting New Zealand, hence www.raftingnewzealand.com If that's right, then they've been doing this for 20 years, are audited and are on the Adventure Activity Register. They are an NZ company.




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