1. Parties, definitions, and how this Waiver is used

1.1 This Risk Warning and Liability Waiver (“this Waiver”) is given by the person who accepts it (“the Client”) to Nicholas Mirow, trading as Nick Mirow Coaching (ABN 69 748 436 102) (“NMC”, “the Coach”). Where the Client is under 18 years of age (“the Minor”), the Minor’s parent or guardian (“the Guardian”) accepts this Waiver and gives it on the Minor’s behalf.

1.2 “ACL” means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth).

1.3 How this Waiver is used and accepted:

(a) where the Client has entered the NMC Programme Client Agreement, this Waiver is Schedule 2 to that Agreement, and is accepted together with it through the onboarding acknowledgement, the Client ticks a dedicated acknowledgement for this Waiver as part of accepting the Agreement (Agreement clause 27);

(b) where coaching is provided on an ad-hoc basis without that Agreement (for example, pay-as-you-go in-person sessions), this Waiver is accepted on its own, as part of NMC’s one-page casual pre-session form, before the Client’s first session; and

(c) acceptance is made either by ticking the acknowledgement in clause 9 and submitting the form (with the Client’s name, and the date and time captured). This is the Client's acceptance of this Waiver.

2. Activities covered

2.1 This Waiver covers all rowing coaching and related physical activities the Client undertakes with or through NMC, including: on-water rowing and sculling; ergometer training and maximal ergometer testing; strength and conditioning and mobility work; fitness and performance testing (including time trials and step tests); boat handling, launching, and rigging; and any related physical activity carried out as part of NMC’s coaching.

3. Risk warning (s 5M Civil Liability Act 2002 (NSW))

3.1 The activities in clause 2 are physically demanding recreational activities that carry inherent and significant risks of harm, including serious injury and, in rare cases, death.

3.2 Those risks include, but are not limited to:

(a) cardiac and cardiovascular events (including heart attack), particularly during or after high-intensity effort such as maximal ergometer tests and time trials;

(b) acute musculoskeletal injury (including strains, sprains, tears, dislocations, and fractures) and overuse injury (including to the lower back, ribs, knees, wrists, forearms, and hands);

(c) slips, trips, falls, and loss of balance on pontoons, ramps, in the boatshed, on ergometers, and during strength and conditioning work;

(d) capsize, falling into the water, immersion, cold-water shock, hypothermia, and drowning during on-water sessions;

(e) collision with other boats, watercraft, swimmers, objects, or the bank, and being struck by equipment such as oars, riggers, or weights;

(f) equipment, boat, or rigging failure;

(g) exposure to heat, cold, sun, wind, and sudden changes in water and weather conditions; and

(h) aggravation of a pre-existing medical condition, injury, or other health condition.

3.3 This clause 3 is a risk warning for the purposes of s 5M of the Civil Liability Act 2002 (NSW). By accepting this Waiver, the Client acknowledges that they have received and understood it.

4. Voluntary participation and assumption of risk

4.1 The Client takes part in the activities voluntarily and at their own risk, with knowledge of the risks described in clause 3.

4.2 The Client acknowledges that many of these risks are obvious risks and inherent risks. Under the Civil Liability Act 2002 (NSW), there is no duty to warn of an obvious risk (s 5H), and a person is not liable for harm suffered because of the materialisation of an inherent risk (s 5I).

4.3 To the extent any activity in clause 2 is a “dangerous recreational activity”, s 5L of that Act provides that there is no liability for harm suffered as a result of the materialisation of an obvious risk of that activity.

5. Exclusion of liability (s 5N CLA; s 139A CCA)

5.1 To the maximum extent permitted by law, and subject to clause 6, the Client agrees that NMC is not liable for any harm to the Client arising from the activities in clause 2 or from the materialisation of any risk in clause 3. This is a term that excludes, restricts, and modifies NMC’s liability for breach of any warranty to render the recreation services with reasonable care and skill, as permitted by s 5N of the Civil Liability Act 2002 (NSW).

5.2 To the extent the activities are the supply of “recreational services” under the ACL, NMC relies on s 139A of the Competition and Consumer Act 2010 (Cth) to exclude liability for failure to comply with the ACL consumer guarantees. As required by s 139A, this exclusion:

(a) is limited to liability for death and personal injury only; and

(b) does not apply to loss of or damage to property, and does not exclude liability for significant personal injury or death that results from reckless conduct (as described in s 139A).

5.3 Nothing in this clause excludes any liability that cannot lawfully be excluded (see clause 6).

6. Your consumer law rights

6.1 Nothing in this Waiver excludes, restricts, or modifies any right, guarantee, or remedy the Client has under the ACL or any other law that cannot lawfully be excluded. Where any part of this Waiver would do so, it is read down to the extent necessary to comply and otherwise has no effect.

7. Health disclosure and medical clearance

7.1 The Client warrants that they have honestly completed NMC’s PAR-Q+ health screening and have disclosed all relevant medical conditions, injuries, medications, symptoms, and health history, and will tell NMC promptly of any change.

7.2 The Client confirms they have obtained medical clearance to take part where the PAR-Q+, a pre-existing medical condition, a cardiovascular risk factor, or a recent injury indicates that clearance is needed.

7.3 NMC’s coaching, programme design, and safety guidance rely on the information the Client provides. The Client accepts responsibility for the accuracy and completeness of that information.

8. Water competence (on-water activities)

8.1 On-water rowing carries a risk of capsize and immersion. Before taking part in any on-water session, the Client confirms that they are water-confident and able to stay afloat and self-rescue in deep water, for example, that they can swim at least 50 metres in light clothing and tread water, or that they have told NMC in writing that they cannot, so that NMC can decide what precautions (including a personal flotation device, or keeping the Client off the water) are appropriate.

8.2 The Client agrees to wear a personal flotation device where NMC requires it, and to follow NMC’s on-water safety instructions at all times.

9. Minor participants

9.1 Where the Client is a Minor, the Guardian accepts this Waiver and gives the acknowledgements in it on the Minor’s behalf, and warrants that they have authority to do so.

9.2 NMC follows the child-safe practice standard described in the Programme Client Agreement and the Parental Consent Form, including a current, verified Working with Children Check, sessions only in observable, non-isolated settings, communication routed through the Guardian, session logging, and the Guardian being welcome to attend at any time.

9.3 This Waiver does not reduce NMC’s child-safe obligations and does not authorise isolated one-on-one sessions with a Minor.

10. Acknowledgement and acceptance

By ticking the box below and submitting the form (or by signing the signature block), the Client (and, for a Minor, the Guardian) confirms that they have read and understood this Risk Warning and Liability Waiver, have had the chance to ask questions, take part voluntarily and at their own risk, and agree to its terms.

• I have read and understood this Risk Warning and Liability Waiver, and I accept its terms. I take part voluntarily and at my own risk.
• (On-water) I confirm the water-competence position in clause 8.

The tick above, together with the Client’s name and the date and time captured on the form, is the Client’s acceptance of this Waiver for the purposes of clause 1.3.

11. General

11.1 This Waiver is governed by the laws of New South Wales and the Commonwealth of Australia where applicable.

11.2 If any provision of this Waiver is or becomes invalid or unenforceable, it is read down or severed to the minimum extent necessary, and the rest continues in full force.

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