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Topic # 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 ?




rb99


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  Reply # 1237174 13-Feb-2015 12:01
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Negligence is not a criminal matter, it is a tort (a civil remedy), e.g. if someone does something that happens to injure someone else, and that injury was reasonably foreseeable, then the person doing the injury may be liable to the person who was injured.  However gross negligence is a standard upon which some criminal behaviour can be measured (for specified criminal offences).  The  thing the operators are trying to ensure they are contracting out of is the former, not the latter (and to be honest I think the waiver is pretty dubious in any event).  You simply cannot contract out of any criminal matter no matter how hard you try.

The comments on ACC barring anyone suing are generally correct though given there has been a narrowing over the years of what ACC covers, in some circumstances an injured party may be able to sue accordingly (I would doubt it in this fact pattern though).

In the case of any injury to said midget, the various government departments would be all over it.  And note that now directors of companies can be held personally criminally liable for acts or omissions of their companies that give raise to a criminal offence.  It is why most companies are going all anal over health and safety issues (Pike River anyone?).

For the avoidance of doubt while I am a practising lawyer, this isn't legal advice to anyone.  There, that's a waiver of sorts...

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