Post originally published here on my other legal blog combatsportslaw.com
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy. The Plaintiff participated in a tournament where he sustained injury. He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“. The Defendant argued that this waiver should be upheld and the lawsuit dismissed. The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“. Using this test the court found the waiver for injuries in classes could not extent to a tournament. In reaching this conclusion Madam Justice Matthews provided the following reasons:
 Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.
 I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.
 In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.
 Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.
 I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.
 The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.