Legal questions – waivers and indemnity forms for food allergy

Allergy Waiver/Indemnity Frequently Asked Questions (FAQ)

Although this FAQ has been prepared with the benefit of legal advice, this information is provided for general information purposes only. Allergy & Anaphylaxis Australia is not liable for any loss that may result from your reliance on this information.

1. What is the difference between a waiver and an indemnity?

A customer may be asked to sign a waiver, or separately, an indemnity. A customer may also be asked to sign a document containing both types of agreement.

A waiver is a contractual agreement that requires one party (usually the customer) to agree that it will not make any legal claim against the other party (the business), often in the context of the customer experiencing harm or injury while using the business' service.

An indemnity is a further agreement by a party (the customer) that it will compensate the other party (the business) for any legal liability or loss sustained by the business, as a result of harm or injury suffered by the customer.

Examples of loss for which a business might ask for compensation include the cost of any medical assistance they arrange for the customer, damages for harm to its reputation, or where there is disruption to the business due to the customer's injury, a business may ask for compensation for the profits it would have made if not for the disruption.

2. Can a café, restaurant or function centre make me sign a waiver/indemnity?

Yes, businesses are entitled to request that customers sign a waiver/indemnity. From the business' perspective, a waiver/indemnity is important to protect itself in the event that customers with severe allergies have an allergic reaction, despite the business taking reasonable precautions. Although a serious allergy that causes anaphylaxis can be considered a disability under Anti-Discrimination legislation, it is likely that requesting a waiver/indemnity be signed is a reasonable requirement and would not be discriminatory

3. What happens if I refuse to sign a waiver/indemnity?

A customer can refuse to sign a waiver/indemnity form. It would then be up to the business whether it decides to serve the customer and accept the risk of an allergic reaction happening. Equally, the customer may decide they are not comfortable eating at that business and eat elsewhere.

4. Can a café, restaurant or function centre say they can’t provide safe food/drink for me and refuse me service?

A cafe, restaurant or function centre can refuse to provide safe food/drink for you and refuse service. Although the restaurant should try to prepare and serve you food without your allergen(s), it will not be required to do so if this will result in unjustifiable hardship for the venue (that is, it will be extremely difficult). Factors that may be considered by the venue include:

• whether it is too difficult to provide allergen-free substitutes and prepare your food without cross contamination and

• how severe your food allergy is (and the risk of harm to you, should you have an allergic reaction).

Where the venue considers that it is unable to provide food that is free of your allergen(s), it may be reasonable for the business to refuse service.

5. If a café, restaurant or function centre says they can’t provide safe food/drink for me and refuse me service, should they let me bring my own food?

This will depend on the facts of your situation. As stated above, venues are required to try to accommodate you, however bringing outside food into a venue may cause other issues for the business, such as food safety concerns. Businesses may, for example, want to reduce any risk that a customer could become sick from external food, which is out of their control. Pre-packaged foods, such as potato chips are less likely to carry this risk and are also less likely to be mistaken for food served by the business in contrast with more substantive foods that require reheating or refrigerating.

6. Can my child's school ask me to sign a waiver/indemnity for a school camp?

Each state and territory have specific guidelines or policies in place for the management of student allergies at school. These guidelines and policies generally acknowledge the special duty of care that a school must have to its students. Some schools may require that students sign a waiver/indemnity form before attending a school camp, particularly where that camp is run or catered for by a third party. Whether a waiver/indemnity form for a school camp is unreasonable will depend on the circumstances.

7. Can my child be excluded from school camp if I do not sign the waiver/indemnity?

Whether a child can be excluded from school camp if a waiver/indemnity form is not signed will depend on the circumstances and terms of the waiver and should be discussed with the school. As stated above, the state and territory guidelines for schools generally require schools to make changes to allow students at risk of anaphylaxis to participate in all activities. However, in some instances it may not be possible for the school to make the changes needed for a student with a food allergy. This will depend on factors such as how severe the food allergy is, and the type of camp, including whether it is organised or catered for by another business outside the school.

8. a) If I sign a waiver/indemnity but then have an allergic reaction, can I still report the food service business for investigation (if I have clearly communicated my food allergy)?

Although the terms of each waiver/indemnity will differ, a term of a waiver/indemnity that tries to prevent a person from reporting a food service business to the relevant authorities would likely be invalid on the basis that it would not be in the public interest to prevent food standards regulators from being alerted to possible food safety issues.

8. b) Can I sign a waiver/indemnity but still make a legal claim against the food service business if I have a reaction as a result of being served my allergen?

This will depend on the terms of the waiver/indemnity, you should read the form closely to understand what types of claims the food service business has excluded.

9. If I have booked and paid for airline travel and I am then asked to sign a waiver/indemnity form, can I refuse?

Each airline has its own policies and conditions which explain the changes they will make and the level of risk they will take on. It is important to review these policies before buying your ticket, as many of the rules will apply as soon as you buy your ticket. Airline policies will likely say whether a waiver/indemnity form is needed.

10. a) Can I travel on an airline without telling them about my food allergy?

Passengers travelling with a food allergy should read the airline terms of service and conditions of travel (sometimes referred to as conditions of carriage) as these should explain whether the airline is willing to make any changes (for example wiping down the tray table) if not told in advance of passenger allergies, and whether the airline will refuse to accept responsibility for an anaphylactic reaction.

10. b) If I travel on an airline without disclosing my allergy and have an allergic reaction, will there be any legal consequence?

Most airline terms of service say they are not responsible for any loss due to an anaphylactic reaction on board their aircraft. Further, some airlines require that passengers do not hold the airline responsible for any costs due to an allergic reaction. As mentioned in the answer to question 8, the conditions of flying with the airline are often agreed to at the time an airline ticket is purchased, regardless of whether the airline later asks that passengers sign an indemnity/waiver. If a passenger's allergic reaction increases costs to the airline (for example, where the airline has to divert the aircraft), the passenger may have to pay these costs.

Content created November 2023