69th Australian Spearfishing National Championships Disclaimer Form

DISCLAIMER FORM

Voluntary Assumption of Risk, Waiver,

Release and Indemnity Agreement

 

THIS IS AN IMPORTANT DOCUMENT AND YOU SHOULD READ IT CAREFULLY BEFORE SIGNING. BY SIGNING THIS DISCLAIMER FORM, YOU ARE DEEMED TO HAVE ACCEPTED AND UNDERSTOOD AS BINDING ON YOU ITS TERMS AND CONDITIONS AND ANY ACCOMPANYING RISKS, OBLIGATIONS AND RESPONSIBILITIES. UPON AGREEING TO THE TERMS AND CONDITIONS CONTAINED IN THIS DISCLAIMER FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS.

 

This Agreement is between a Competitor wishing to participate in the 69th^th Australian National Spearfishing Championships and the Australian Underwater Federation (AUF) which includes its State branches, clubs, organising committee(s), members, other competitors, executives and the WA Undersea Club.

In consideration of a Competitor being permitted to participate in Australian National Spearfishing Championships the Competitor acknowledges and agrees:

1. AUF is in the business of providing recreational services that relate to the sport of Spearfishing, including but not limited to spearfishing, fin-swimming and film fishing (the “Activities”).

RISK WARNING – Voluntary Assumption of Risk

2. The Competitor voluntarily participates in Activities at their own risk and acknowledges that the Activities are potentially dangerous.
3. Prior to undertaking any Activity, the Competitor should ensure they are aware of all of the risks involved, including those risks associated with any health condition the Competitor may have.
4. By participating in Activities the Competitor is at risk of “Harm” which includes:
   1. death;
   2. physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
   3. the contraction, aggravation or acceleration of a disease;
   4. the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:
      1. that is or may be harmful or disadvantageous to the Competitor or the community; or
      2. that may result in harm or disadvantage to the Competitor or the community
5. Spearfishing - Inherent Dangers | Possible causes of Harm whilst Spearfishing include, but are not limited to:
   1. Blackout: a major killer of breath-hold spearfishers. It is the result of oxygen starvation at the end of a breath-hold dive. 
   2. Boat / diver interactions: There is a risk of Harm from boat traffic. Harm can occur from propeller strike. There is also the risk of spearfishers being caught in currents and lost at sea.

Refer to Marine Safety Queensland (MSQ) [www.msq.qld.gov.au], Roads and Maritime Services NSW (RMS) [www.rms.nsw.gov.au] or other applicable state government website for information regarding safe boating and legal requirements for the area.

Always ensure weather conditions are suitable [www.bom.gov.au].

1. 3. Diver / diver interactions: Underwater fishing equipment such as spearguns and pole spears have the potential to be extremely dangerous if not handled properly. When multiple divers are in the water in close vicinity together there is an increased risk that a speargun could discharge causing Harm. Likewise, spearguns must be handled correctly out of the water as well.
   4. Marine creatures: The ocean has a diversity of marine life that may harm humans. Sharks, crocodiles and fish may bite; stingrays and jellyfish may sting (especially irukandji jellyfish and box jelly fish); some fish, sea snakes, blue ring octopus and cone shells are venomous. Sharks and other fish can be aggressive if speared such as bill fish and barracouta. If large species are being speared there is also a risk of entanglement.
   5. Rockhopping / shore diving: Rockhopping /shore diving involves entering and exiting the water from the shore, often from rocky headlands, and then swimming in the sea, often around the head land. It presents some unique risks for the spearfisherman. Sea conditions, tides, rips, surf, boat traffic are just some risks associated with rock hopping.
   6. General health and fitness: As people of all ages and athletic abilities pursue spearfishing consideration must be given to the fitness level required for spearfishing. Spearfishing requires a measure of strength and stamina.
   7. Competence and Culture: Spearfishing is about hunting, learning fish behaviour, reading conditions, identifying ‘signs’ and good ground etc. While spearfishers need to utilize freediving it is a different sport to ‘competitive’ freediving. It can endanger spearfishers when the two sports are discussed interchangeably without fully understanding the differences between spearfishing and competitive freediving. 
   8. Equipment: Having the right equipment whilst spearfishing is not only important for comfort and functionality but also plays an important safety role. Critical spearfishing gear includes mask, snorkel, wetsuit, weight belt, fins, gloves and socks.

 

SPEARSAFE | for further information go to: www.spearsafe.webs.com

 

WAIVER – WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND OTHER LEGISLATION

6. Under the Australian Consumer Law, several statutory guarantees apply to the supply of certain goods and services (Consumer Guarantees).
7. These Consumer Guarantees mean that AUF is required to ensure that the recreational services (ie the ‘Activities’) it supplies to Competitors must:
   1. be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage;
   2. be fit for the purpose or give the results that the Competitor and the AUF had agreed to.
8. Under the Australian Consumer Law, and in some states other legislation, the AUF is entitled to ask the Competitor to agree that these Consumer Guarantees do not apply to the Competitor.
9. If the Competitor participates in Activities by submitting this form, the Competitor will be agreeing that their rights to sue AUF under the Australian Consumer Law, and other legislation, if they suffer Harm because the services provided were not in accordance with these Consumer Guarantees, are excluded, restricted or modified in the way set out in this form.
10. The change to a Competitor’s rights, as set out in this form, does not apply if their death or injury is due to gross negligence on the AUF’s part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission.

Under the Australian Consumer Law only consumers who are 18 years of age or older are able to sign recreational services’ waivers: accordingly, this Disclaimer Form does not attempt in any way to exclude the consumer guarantees when it comes to minors, does not exclude or modify their consumer rights; and does not ask a parent or guardian to sign a waiver on their behalf excluding consumer guarantees.

RELEASE AND INDEMNITY

11. The Competitor, to the extent permitted by law:
    1. By signing this Disclaimer Form, the Competitor agrees that the liability of the AUF in relation to the Activities for any Harm that may be suffered by a Competitor resulting from the supply of the recreational services is excluded.

The Competitor acknowledges and agrees that the above provision operates to exclude the liability of AUF as a result of a breach of an express or implied warranty that the recreational services will be rendered in accordance with Consumer Guarantees pursuant to the Australian Consumer Law;

1. 2. Releases and forever discharges the AUF from all action, suit, proceeding, claim, demand, damage, penalty, cost or expense however arising from or in connection with any Activities (Claims) that a Competitor may have or may have had but for this release arising from or in connection with a Competitor’s participation in the Activities;
   3. Release and indemnifies the AUF against any Claim which may be made by a Competitor, or on a Competitor’s behalf, for, or in respect of, or arising out of, a Competitor’s death whether caused by the negligence or breach of contract by AUF or in any other manner whatsoever; and
   4. Indemnifies, and will keep indemnified and hold harmless, the AUF to the extent permitted by law in respect of any Claim made by a Competitor, or on a Competitor’s behalf:
      1. arising as a result of, or in connection with, a Competitor undertaking Activities; and
      2. against AUF in respect of any injury, loss or damage arising out of or in connection with a Competitor’s failure to comply with TCGFD rules or directions, save that the above releases and indemnities shall not apply to the extent that the loss, damage or injury that is the subject of the Claim is caused, or contributed to, by grossly negligent acts or omissions by the AUF.

 

WARRANTIES and ACKNOWLEDGMENTS

12. The Competitor attests that prior to undertaking any Activities they:
    1. are and must continue to be medically and physically fit, enjoying good health, and have sufficient expertise for participation in Activities;
    2. are not a danger to themselves or to the health and safety of others;
    3. are not prone to suffering blackout, seizure, convulsion, fainting or dizzy spells;
    4. are not presently receiving treatment for any condition, illness, disorder or injury which would render it unsafe for them to take part in the Activities.
13. The Competitor acknowledges that they must, and the Competitor agrees they will, disclose any pre-existing medical or other condition that may affect the risk that either the Competitor or any other person will suffer Harm. The Competitor acknowledges that AUF relies on information provided by the Competitor and that all such information is accurate.
14. A Pre-Existing Medical Condition includes:
    1. Medication: Any medication taken on a regular basis either over-the-counter or prescribed by a physician.
    2. Mental and Mood Conditions: Current or history of mental illness or mood disorder including, but not limited to schizophrenia, paranoid disorder, bouts of hysteria.
    3. Neurological Conditions: Including, but not limited to any history of seizure disorder, stroke, brain surgery, repeated blackouts or fainting fits, severe migraine headaches, or aneurysm of the brain’s blood vessels.
    4. Cardiovascular Conditions: Including, but not limited to heart attack, heart surgery, irregular heartbeat, pacemaker, uncontrolled elevated blood pressure.
    5. Pulmonary Conditions: Including, but not limited to asthma, history of spontaneous collapsed lung, collapsed lung due to injury, cysts or air pockets of the lungs, severe damage to lung tissue, emphysema, any lung problem which interferes with your ability to breathe.
    6. Ear, nose and throat Conditions: Including, but not limited to tumor, polyps, or cyst of the sinus cavities or nasal passages, major sinus surgery, persistent sinus infection, permanent holes of the eardrums, history of ruptured eardrum, permanent types in ear-drums, severely impaired hearing or hearing loss in one or both ears, major ear surgery.
    7. Eye Condition: Including, but not limited to severe myopia, contact lens, retinal detachment, eye surgery.
    8. Diabetes Mellitus: Type I Diabetes (Insulin dependent) or Type II Diabetes, which requires Insulin or oral medication for control. Any form of Diabetes that is unstable, “brittle” or produces episodes of hypoglycemia (low blood sugar reactions), hyperglycemia (extremely high blood sugar with ketosis) or there is related kidney disease, eye disease, heart disease or blood vessel disease.
    1. Freediving / Scuba Diving History: Including, but not limited to previous history of a diving accident, severe blackout, decompression sickness, decompression of the inner ear of air, reverse block, lung squeeze, any lung squeeze producing pink foam, pulmonary bleeding.
    10. General Medical Problems: Any physical and/or emotional condition not mentioned that might affect your safety in an underwater environment or affect your judgment under times of physical or emotional stress.
    11. Pregnancy: If you are presently pregnant.
15. The Competitor will not, whilst participating in Activities, consume or otherwise take in substances or do things that will adversely affect the Competitor’s physical or mental ability, capacity or judgement.
16. AUF reserves the right to refuse the Competitor, without limitation, participation in Activities and at any time may withdraw its consent for the Competitor to participation in Activities.
17. Before submitting this Disclaimer Form the Competitor has read and fully understands its meaning and that the Competitor, by submitting this Disclaimer Form, may be giving up important legal rights.
18. If the Competitor does not understand this form, or does not agree to be bound by the provisions of this Agreement, the Competitor should not participate in Activities.
19. If anything in this Disclaimer Form is unenforceable, illegal or void then it is severed and the rest of this Disclaimer Form remains in force. The terms of this Risk Waiver are governed by the laws of Australia.
20. If the Competitor requires clarification or assistance regarding the contents of this Disclaimer Form or how to safely undertake the Activities, please contact the AUF prior to undertaking any Activities.