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Negligent Commercial Bus Driver Escapes Liability Due to Waiver of Liability; Legislative Intervention Required?

UPDATE  – April 30, 2014 – The below decision was overturned by the BC Court of Appeal
I have previously discussed the real world consequences of waivers of liability and the fact that these can strip people seriously injured through the fault of others of meaningful legal recourse.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, creating a troubling precedent allowing such a waiver to stand in the context of a motor vehicle collision claim.
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 dismissing the plaintiff’s claim.  In doing so Mr. Justice Armstrong provided the following reasons:
[80]         In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.
[81]         I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention…
[93]         I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.
This is a troubling finding and can pave the way for commercial vehicle operators requiring customers to sign waivers of liability in essence shielding these operators in the face of negligently caused injuries.  Mr. Justice Armstrong held such a result “is not contrary to public policy“.  In reaching this conclusion the Court provided the following reasons:
92]         However, in this case, the Release does not impact public policy or the statutory automobile insurance scheme. This Release deals only with the plaintiff’s right to recover damages from the defendants caused by the defendants’ negligence. The statutory scheme is not engaged until there has been a determination, or settlement, of a complainant’s entitlement to money as compensation for injury suffered as a result of the negligence. In my view, the plaintiff’s argument does not engage a debate about public policy.
I understand the decision is being appealed and I will author a follow up post after the Appellate Court addresses this issue.
Assuming, however, that this result is correct it is one which clearly calls out for legislative intervention.  If the law requires motorists to carry Third Party liability coverage to ensure those injured through their carelessness have recourse to damages the law should not permit waivers to apply to strip innocent individuals of this statutorily required protection.

Mr. Justice Armstrong, Niedermeyer v. Charlton, Waiver of Liability