"It Is Contrary to Public Policy to Permit Contracts out of Liability for Damages for Personal Injuries" in BC Vehicle Collision Cases

Important reasons for judgment were released today by the BC Court of Appeal confirming, in divided reasons, that it is contrary to public policy to allow a vehicle owner/operator to contract out of liability for damages for personal injuries.
In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler  BC to participate in various activities including a zip lining experience.  Transportation to and from Whistler was provided the by the Defendant.   During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“.  The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.
Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”.  The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages.  The Defendant admitted he was negligent but the waiver was upheld at trial dismissing the plaintiff’s claim.  In overturning this decision the majority of BC’s Court of Appeal provided the following reasons:
[114]     In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable. The judge erred in finding that the public policy interest exemplified in a compulsory universal insurance scheme was incapable of defeating society’s interest in freedom of contract.