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Liability Waivers


PLEASE READ THIS STATEMENT CAREFULLY!
This document is not intended to advance a legal opinion. We are not lawyers and have no training in the law. We don't follow legal rulings on this or any other subject in the law. We can't give you legal advice about liability waivers. We are simply voicing our opinion on a hot topic in the dive industry. It is a lay opinion based only on common sense, readings from other knowledgeable sources; not on the state of the law as it exists today. Read this document for information purposes only. Seek your own legal assistance to understand liability waivers.


When you signed up for your first scuba diving class, you were required to sign a Liability Waiver. That was the first of many such diving waivers you will sign. It is unfortunate, but we live in a society where individuals always look to someone else to accept responsibility when something goes wrong.

Without the protection of liability waivers, many in the diving business would not be willing to provide their goods and services. Most scuba stores are required by their insurance carrier to present liability waivers for many services. Almost all charter boat operators and scuba stores make the signing of a liability wavier a condition of accepting your reservation for dive travel.

The Scuba Doctor makes use of liability waivers for all training, equipment rental and dive travel. The legal validity of The Scuba Doctor waivers, or any waiver, depends greatly upon the laws of the state in which the waiver is signed.

The State of Victoria takes a rather lenient view of liability waivers. The general rule is that a liability release or waiver is valid in the State of Victoria so long as it does not compromise public policy. In fact, some State courts have specifically ruled that liability waivers may be directly in the state's public interest.

Waivers allow the conduct of activities that might not be available to the citizens absent of a waiver of liability by the participants. The State of Victoria is loath to come between two contracting parties on this or any other contract issue.

When you sign a liability waiver at The Scuba Doctor, you are entering into a contract that waives certain of your rights in return for the right to participate in the diving activity we offer. Without this protection, we would be unable to obtain insurance to cover our employees and facilities and would therefore be unable to operate.

We suggest that you read our liability waivers very carefully. They outline the level of risk you are undertaking and the specific rights you are giving up in return for the right to participate in our programs. If you don't understand a waiver, you are free to take it to someone else for guidance and interpretation. We will never ask you to sign a waiver "at the last minute". You will always be presented with the waiver well in advance of the activity.

The most important rule to remember is actually a very simple one... if you don't like what the waiver says, or if you don't understand it completely, DON'T SIGN THE WAIVER. There is always time to sign later after you have gained a better understanding.


PLEASE READ THIS STATEMENT CAREFULLY!
This document is not intended to advance a legal opinion. We are not lawyers and have no training in the law. We don't follow legal rulings on this or any other subject in the law. We can't give you legal advice about liability waivers. We are simply voicing our opinion on a hot topic in the dive industry. It is a lay opinion based only on common sense, readings from other knowledgeable sources; not on the state of the law as it exists today. Read this document for information purposes only. Seek your own legal assistance to understand liability waivers.


We want you to completely understand our position with regard to liability waivers. We are not trying to "trick" you by presenting a complicated waiver that offers us great benefits and provides you with nothing. Waivers are a fact of life in the scuba industry, and we are simply trying to protect ourselves and our travel partners.

We have provided this list of frequently asked questions regarding this issue. Remember, the answers here are given by lay persons, not lawyers... they don't constitute a legal opinion. If you have additional questions, please feel free to contact us. But please remember Rule Number One regarding liability waivers... DON'T SIGN IF YOU DON'T UNDERSTAND!


What Is a Liability Waiver?  A liability waiver is a legal document that seeks to obtain protection against law suits and damage awards in the event of an accident occurs. Liability waivers are typically used in connection with sports or activities where there is some considerable risk of accidents or bad outcomes.

In the scuba diving industry, the use of liability waivers are quite common. Almost any diving or boating activity offered to you will be accompanied by some sort of waiver were you agree not to hold the individuals or the company accountable should you be involved in an accident. Were it not for the ability to obtain liability waivers from adventure sports participants, you would have very few opportunities to participate in these types of events. A business simply cannot afford to offer adventure activities if they might be held financially responsible for every accident.


Why Does The Scuba Doctor Use Liability Waivers?  The use of liability waivers is standard practice in the scuba diving industry. In many cases, the use of liability waivers is dictated by our vendors or partners. A classic example is the waiver you sign when you sign up for any scuba course. All training agencies not only requires a waiver, but provide us with a specific waiver that must be signed by every student.

Many of our charter boat operators specifically require waivers. Our liability insurance company requires waivers. We also want some protection against the unlikely event that an accident would occur. We feel that if we have made you adequately aware of the risks associated with scuba diving, you should be willing to accept responsibility for the outcome of any accident.


Are Liability Waivers Enforceable in the Courts of Victoria?  We think so. It is the position of the courts in the State of Victoria that there is no reason to interfere with a contract negotiated between two parties in our state if the contract does not violate state public policy. The State of Victoria recognises scuba diving as a hazardous activity, and therefore assumes you understand that participation involves risk.

They see it as perfectly logical that you would be required to waive liability for risks you knew, in advance, to be present. In any event, the liability waiver would be a strong piece of evidence when presented to a jury. Just like you, jury members expect each of us to live up to our word. Signing a liability waiver is akin to "giving your word" that you don't intend to hold The Scuba Doctor liable for the risks associated with scuba diving.


How Can You Legally Force Me to Waive My Rights By Making Me Sign a Waiver?  Very simply, we can't force you. If we did, anything you signed would be considered null and void.

However, YOU can voluntarily waive any right you choose to waive. If you are ever in the unfortunate situation where you are charged with a crime, the court may offer to let you waive your right to a jury trial or waive your right to legal counsel. In this case, they are not forcing you to waive your rights, you are doing so willingly.

When we present you with a liability waiver prior to a dive outing, we are not forcing you to waive any rights. We are simply telling you that successful negotiation of a waiver is required as a condition of your participation.

YOU must read the waiver and determine if it is in your best interest to make the waivers outlined in the document in return for the right to participate. Remember, any right you waive in a liability waiver is an absolute VOLUNTARY waiver of those rights.

We encourage you to think about your actions before you sign, and to obtain additional advice if you feel it necessary. Only after seeking advice and weighing the benefits of the waiver should you make a VOLUNTARY waiver of your rights.


Can I Disavow a Waiver After I Have Signed It?  That would be quite difficult, but it has been successfully done in some states. You would need to prove that there was some sort of trickery or fraud involved in our presentation of the waiver to you. Another cause to disavow might be that you were "coerced" into signing the waiver. One form of coercion might be that the waiver was presented to you too late for you to back out, effectively removing your right to decide if you should sign.

For instance, we would never present you with a wavier to sign after the dive boat is underway. This is too late for you to have sufficient legal choice.

In the case of minors, the ability to disavow a waiver is a little more lenient. There are many cases of successful disavowing of waivers, by minors, when the waivers were signed by parents or guardians. However, the State of Victoria courts do not make this a practice. If allowing minors to disavow became commonplace, the courts would eventually create a situation where minors were not allowed to participate in adventure sports.


Is a Waiver Signed By a NON-CERTIFIED Diver Valid if He/She Scuba Dives?  Yes, we think so. There is no law that requires a certification card or scuba training to dive. However, we know of no reputable diving operation (including The Scuba Doctor) that would knowingly permit an un-trained and un-certified diver to dive or rent diving equipment.

It is highly possible that a dive operator would fail to check for a valid certification completely by error. In that case, there is question as to the ability of that signing person to clearly acknowledge that risks associated with diving, a key element in determining the validity of a waiver.

At The Scuba Doctor, we plan for this possibility. Every The Scuba Doctor waiver requires the signer to affirm that he or she is a certified scuba diver, trained by an agency recognised as a scuba certification agency, or a student under the direction of a licensed scuba instructor.

We go further and have the signer affirm that he or she understands the risks associated with scuba diving. With this waiver, we don't need to ask to see a certification card in order to obtain the protection the waiver was intended to provide. In addition, a person that signs waiver and attempts to "trick" us into thinking that certification has been obtained, when in fact it has not been obtained, is committing a contract fraud under the laws of the State of Victoria.


Is Acknowledgement of Risk the Same as Waiving Liability?  Not at all. Reading or signing a document that acknowledges a certain risk is simply that... acknowledging risk. When you acknowledge risk, you are not necessarily waiving liability. The Scuba Doctor waivers accomplish two tasks... advising you of the risk and seeking waiver from you for that risk. In situations where the signature of a parent or guardian is required for a minor's participation, our waivers explain the special risks associated with a parent signing on behalf of a minor.


Can a Minor Sign a Liability Waiver?  No. In the State of Victoria, an individual who has not yet attained the age of 18 is considered a minor, unless legally emancipated by a Victorian court. A minor cannot enter into a contract in the State of Victoria and a liability waiver is a legal contract.

The State of Victoria also judges minors to be mentally unable to give consent, a key element in signing a waiver. Minors who participate in The Scuba Doctor activities must obtain the permission of their parents or legal guardians and those adults must sign a liability waiver on behalf of the minor.


Does the Minor Sign in Addition to the Parent or Guardian?  Actually, that isn't necessary. The Victorian courts don't recognise any type of consent contract signed by a minor, so having them sign is a waste of effort. Our waivers require the participant to initial each paragraph of our waivers and then sign on the bottom of the waiver. Since a minor is incapable, under the law, of understanding the terms of the waiver, we require a parent or guardian to initial the paragraph and then sign for the participant on the bottom of the waiver. In addition, we also require the parent or guardian to sign additional statements, found as an addendum to the waiver, which outline the responsibility a parent or guardian undertakes when they sign on behalf of a minor.


Can a Minor Later "Disavow" a Waiver Previously Signed By a Parent or Guardian?  In the State of Victoria, the courts are fairly liberal in allowing a minor to disavow a contract signed by a parent or guardian on their behalf. While the case law is a little mixed on this subject, a minor would likely have to demonstrate to the court that the parent or guardian did not have the best interests of the minor in mind at the time of signing. This legal protection is afforded the minor to prevent damage should the parent or guardian demonstrate recklessness by signing a contract on behalf of the minor. The case law on a parent or guardian later attempting to disavow a contract they signed on behalf of a minor is a little more clear. It would not be allowed by the courts in the State of Victoria.


Can An Adult Other Then a Parent or Guardian Sign a Liability Waiver for a Minor?  No. Only a parent or guardian can sign a liability waiver on behalf of a minor. Waivers signed by other adults are immediately null and void. In such a case, the law views the waiver as if it never existed, and the minor is restored all rights waived by the document.

The Scuba Doctor waivers require that the signing adult affirm that they are able to sign on behalf of the minor in question. If a person represents themselves as the guardian and signs a waiver on behalf of the minor without the legal authority to do so, the signer is guilty of fraud, a felony in the State of Victoria, punishable by stiff fines and a considerable jail sentence. In addition, it would be relatively simple for the organisation who originally presented the wavier to recover from the adult if any loss occurred as a result of the fraud.


Must Both Parents Sign the Waiver for a Minor for It to Be Enforceable?  The case law on this issue is not as well settled as other issues associated with waivers in Victoria. In practice, only one parent or guardian is required to sign, and that is the position The Scuba Doctor takes with waivers. In all The Scuba Doctor waivers for minors, the signing parent or guardian affirms that they are signing for themselves and ON BEHALF of all other parents and guardians. If a signer affirms this, while possessing knowledge that there is some reason why they can't sign on behalf of the other parent or guardian, they have committed contract fraud. This is a serious offense in the State of Victoria. Our parent and guardian addendums also require the signing parent to affirm that there is no ongoing custody suit with regard to the minor.


What Consideration is The Scuba Doctor Providing Me In Return for Signing a Waiver?  There must be mutual consideration for any contract to be enforceable in the State of Victoria. The Scuba Doctor makes the signing of a liability waiver a condition of participating in the scuba diving event with The Scuba Doctor group. The consideration you are getting is the RIGHT to participate in our event and the fair value of the services rendered for your money. This consideration has been judged to be sufficient to satisfy the "mutual benefit" requirement of the laws of Victoria.


Can I Make "Markups" or Take Exception to a Particular Paragraph I Don't Like in a Liability Waiver?  A standard tenant in contract negotiation that either party is free to make changes to a contract or to take exception to any terms and conditions outlined in a contract. You simply make written changes to the paragraphs or conditions in a contract and, as long as both parties agree, the changed contract is valid.

When we developed our Liability Waiver, we included those paragraphs and conditions necessary for our protection. While you are free to disagree with any paragraph or make any changes you feel necessary, we are also free to refuse to accept those changes. At The Scuba Doctor, we make it a practice not to accept any changes to our published waivers.


Will I Be Denied the Right to Participate If I Refuse to Sign?  Yes. Unfortunately, we cannot allow you to participate in our organised activities if you refuse to sign the liability waivers presented. It is a condition of our contract with our training, travel and insurance partners and it's simply good business. All The Scuba Doctor travel contracts (when you sign up for a trip, you are contracting with us) not only make signing a liability waiver a condition of attendance, but we also consider a refusal to sign a liability wavier a "voluntary cancellation", which results in forfeiture of any deposits paid.


Will I Be Asked to Sign Additional Waivers During a Trip?  That is clearly a possibility. We state plainly in our trip information that you might be asked to sign additional waivers by our charter and travel vendors when you arrive. A good example is the waiver required by charter operators. They require a new release directly between them and you! These waivers must be presented to the charter operator when you check in prior toboarding.

It might also be possible that The Scuba Doctor presents additional waivers for your signature after you sign up for a trip, even though you might have already signed one. Many waivers serve only a single purpose and we might need protection for some other conditions not outlined in the original waiver. But don't forget the most important issue when you are presented with a release... NEVER sign a release you don't understand!


What If I Don't Understand the Liability Waiver?  You have an absolute right to seek the advice of other persons prior to signing any The Scuba Doctor liability waiver. We make a practice to never present a waiver at the "last minute". We always give you time to completely read and understand a waiver. You can always ask to take it home and return it at a later date. We are not trying to trick you by having you sign a waiver. We want you to fully read and understand the waiver prior to signing. Your right to seek advice is absolute and applies to advice from anyone... a friend, a family member, or a lawyer.

NEVER SIGN A RELEASE OR WAIVER if you don't understand it or don't agree with the terms contained in the release.


If I Don't Understand the Liability Waiver, Will The Scuba Doctor Explain It To Me?  Well, we certainly know what we intend to accomplish with the waiver we present to you and we will gladly explain it to you. But what WE SAY about our waivers is not important... it's what YOU SIGN that has legal significance.

What we DON'T know is if we accomplished our intent sufficiently to pass the muster of the courts with the wording of the waiver. It is in your best interest to have someone else explain the implications of ANY liability waiver to you. We will give you our lay opinion of what the waiver accomplishes, but that certainly doesn't constitute a legal opinion. We are not lawyers. We are not and can not possibly be up on the latest in contract and tort law in the State of Victoria.


Can Anything a The Scuba Doctor Employee Say Alter the Effect of a Waiver?  We don't think so. If you ask us what a certain paragraph means, we might offer you a lay opinion. That opinion doesn't alter the legal meaning of the paragraph. If we were to promise you that we never enforce some aspect of the waiver, that promise doesn't alter the legal significance of the paragraph. The ONLY possible way we could damage the legal integrity of a release would be to engage in some sort of trickery or fraud to coerce you to sign, or to present the wavier to you at a point in the activity where you no longer have a choice about signing. In that case, the entire waiver would probably be judged null and void by the Victorian courts.


Could I Seek Legal Relief in Another State Even If I Signed a Waiver in Victoria?  This is a difficult question to answer. In theory, almost any state could rule that they have jurisdiction over an issue brought before them. If a waiver is not carefully worded, this is a possibility.

All The Scuba Doctor waivers have text that requires the signer to recognise that the "situs" of the waiver is the State of Victoria. Situs simply means the "residence" of the liability waiver and the place where jurisdiction is generally believed to reside. Our waivers also require the signer to acknowledge that they will not bring any action in any court, Federal or State, other than those situated in the State of Victoria.


Can a Waiver That is Structured on Victorian Law Be Enforced in Another  State?  When you sign a waiver in our store, you are signing a waiver based upon our understanding of Victorian law. In some cases, the actual activity covered by the waiver occurs in another state or country.

If you were to bring an action against us, you would likely bring that action in the Victorian courts. If you were to somehow bring an action in another state, we are probably still protected, absent some extreme violation of that state's public interest. Almost all states realise that it is in the public's best interest to honour a contract signed in another state. Without this understanding among the various state's courts, all contracts would be worthless.


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