Tour Waivers and Booking Terms: What They Can and Cannot Do

A contract term that tries to exclude these guarantees is generally void. That is why a line such as "the operator accepts no liability for any loss or injury however caused" does not do what it says. The one carve-out is for recreational services, covered in the next section.

The guarantees attach to the service you sell. In the coach tour case below, the seller of the tour package was liable for the service it sold, including a fall on the tour's coach. Our guide to contract guides, coach companies and suppliers covers whose insurance responds.

A tour operator's seatbelt clause. In Insight Vacations Pty Ltd v Young [2011] HCA 16, a passenger on a European coach tour bought in NSW stood to reach a bag on the overhead shelf, the coach braked and she fell. The contract excluded liability where a passenger occupied a seat fitted with a safety belt and was not wearing it. The operator was sued under the earlier version of the due care and skill guarantee. The High Court held the clause applied only while a passenger was seated, so it did not apply when she was standing. It also held that the NSW provision allowing recreation services waivers (s 5N) applies only to services supplied in NSW. The operator's appeal was dismissed.

A cruise line's class action waiver. In Karpik v Carnival plc [2023] HCA 39, a cruise line relied on terms in a passenger's contract made overseas: US law, a California court and a waiver of class actions. The High Court held that the unfair contract terms law applies to a contract made overseas by a company carrying on business in Australia, and that the class action waiver was void because it was unfair.

In both cases the clause did less than the business expected. In the cruise case, terms drafted for another country did not escape Australian consumer law. That matters if you run overseas tours on a foreign partner's terms.

WA and Victorian government schools are told to refuse negligence waivers. The WA Department of Education's excursion procedures say staff must not sign waivers, indemnities or disclaimers that absolve a provider from its own negligence, and must not require parents to sign them. Victoria's Department of Education tells schools to refuse waivers where the provider seeks to absolve itself of negligence. WA public schools must confirm providers hold $20 million public liability. Victorian government schools ask for a certificate of at least $10 million.

Underwriters ask about waivers. A waiver is not cover. Published Australian tour operator proposal forms ask whether guests sign a waiver or release. Participant waivers are not addressed in at least one specialist tour operator wording we place. If a guest sues over a covered injury, public liability can pay the defence costs and any damages, within the policy terms, limits and costs cap, whether or not the waiver holds. The waiver is one argument for the defence.

Never sign away your own recovery rights without asking. Supplier agreements from coach companies, venues, booking platforms and cruise lines can ask you to release them or waive rights of recovery. On the tour operator policies we arrange, waiving your right to recover from a supplier without the insurer's prior consent can remove cover for that claim to that extent. Before you sign, send it to us so we can check how it sits with your insurance, and have your lawyer review the contract.

After an incident. Admitting fault or offering compensation without the insurer's consent can put cover at risk. Our risk management guide covers incident reporting.