Tag: Waiver of Liability

"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.
 

Chairlift Negligence Claim Dismissed Due To Waiver


Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.
In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:
[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:
1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.
[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:
DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.
[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:
ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.
[33]         On its face, the Release is very broad.
[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.

[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 
[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 
[57]         The plaintiff’s claim is therefore dismissed.

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.

"Very Faint Small" Waiver Agreement Held Unenforceable


Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, finding that a waiver of a Plaintiff’s right to sue was not enforceable where the agreement was set out in a “very faint small red type“.
In this week’s case (Arndt v. The Ruskin Slo Pitch Association) the adult Plaintiff joined a recreational soft ball league.   Prior to playing the Plaintiff filled out and signed a roster.  At the bottom of the roster was a clause stating “I agree to waiver” the terms of which were set out on the back of the roster.
The Plaintiff was injured in the course of one of her games.  She sued for damages.  The Defendant applied to dismiss the claim relying on the waiver arguing that “the Plaintiff cannot escape from the consequences of the waiver merely by stating that she thought she was signing a roster and did not appreciate it was also a waiver“.
Madam Justice Humphries disagreed and found in these circumstances the waiver should not be enforceable.  In dismissing the Defendant’s motion the Court provided the following reasons:
[36] On the affidavit and discovery evidence before me, I accept that the plaintiff thought she was signing a team roster and that she did not know it was a waiver of liability.  However, the defendants are correct in stating that that is not the end of the enquiry. ..

[44] The document, looked at on its face, does not appear to be a waiver.  It appears to be a roster.  The attention of the person asked to sign it as a roster would inevitably be drawn to the lines in the box for the team signatures and information.  While there is red type above the box requiring the person to “READ AND UNDERSTAND BACK OF PAGE BEFORE SIGNING” there was, on the evidence on this application, no direction or information given by the coach who presented the document attached to a clipboard, to be handed around and signed by the team at the first practice.  The words “I agree to waiver” on the signature lines are so faint as to almost undetectable.  Unlike the waivers that have been held to be enforceable in the cases referred to above, the release is not a separate sheet and the waiver and signature are not on the same page.  The back of the form requires the coach to advise the people on the list that they are fully responsible for any damages “incurred by them”.  That was not done, nor was any step taken by the defendants to ensure it had been done.

[45] If the defendants wanted to ensure that they were released from liability it would be a simple matter to have individual release forms prepared and signed by each player.  The defendants had no means of determining if the plaintiff understood the document because they did not present it to her, leaving its nature to be explained by coaches or managers who did not do so.  The form of the document itself and the circumstances under which it was presented for signature are not such that a reasonable observer would understand its nature.  I am unable to conclude that the defendants took reasonable steps to have the nature of the document as a waiver rather than a team roster brought to the plaintiff’s attention.

[46] I conclude, on the information before me, that the waiver is not enforceable against the plaintiff.  It is not necessary to deal with the plaintiff’s additional arguments respecting consideration and the failure to date the document.

Paragraph 27 of this case is worth reviewing for the Court’s short and helpful summary of 8 other BC cases dealing with waivers.

Waivers of Liability: The Real World Consequences


(Updated March 15, 2012an Appeal of the below Decision was dismissed in reasons for judgement released today by the BC Court of Appeal)
If you are harmed through the carelessness of others but signed a ‘waiver of liability‘ prior to being harmed you may be deprived of meaningful legal recourse.  For this reason it is vital to turn your mind to the potential consequences prior to accepting the terms of a waiver.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Loychuk v. Cougar Mountain Adventures Ltd.) two plaintiffs were injured in a zipline accident.  The first plaintiff went down the line but did not reach the bottom.  She was suspended on the line.  At this time the tour guides in charge of the zipline let the second plaintiff go down the line.  She had no ability to stop and “slammed into (the first Plaintiff) at high speed causing injury to both“.
The Defendant company agreed their employees were careless and caused the injuries.  They denied compensation to the Plaintiffs, however, relying on a waiver they require every zipline participant to sign. The Plaintiffs brought a lawsuit arguing the waiver should not be enforced.  Mr. Justice Goepel disagreed and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[30]         The Release was consistent with the purpose of the contract, which was to permit the Plaintiffs to engage in a hazardous activity upon which they, of their own volition, had decided to embark. The most casual review of the document would have revealed to the Plaintiffs that the Release was a legal document impacting on their legal rights to sue or claim compensation following an accident. They asked no questions concerning the terms of the Release. They never indicated to Cougar that they were not prepared to sign the Release.

[31]         There is nothing in the circumstances that would lead Cougar to conclude that the Plaintiffs did not intend to agree to what they signed. In these circumstances, Cougar was under no obligation to take reasonable steps to bring the terms of the Release to the Plaintiffs’ attention.

[32]         That said, Cougar did in fact take reasonable steps to bring the contents of the Release to the Plaintiffs’ attention. Both were given sufficient time to read the Release. The heading at the top of the document and the admonition to read carefully alerted the Plaintiffs that it was a legal document intended to prevent the Plaintiffs from suing or claiming compensation following an accident. Both Plaintiffs acknowledge that they knew from their reading of the Release that it limited in certain circumstances their legal rights to sue. In Mayer, which concerned a release in relation to obtaining a ski pass, the release contained terms in bold lettering similar to that in the case at bar. The court noted that the large bold print should have alerted the most casual reader of the release’s terms. The same considerations apply in this case.

[33]         I do not accept the Plaintiffs’ submission that the reasoning in Karroll should be limited to cases involving hazardous activities in which the participant has some measure of control. Karrollis a case of general application. Its reasoning applies to all contracts.

[34]         Subject to the remaining submissions discussed below, I find the Release is enforceable. A reasonable person in the position of Cougar would not have known that the Plaintiffs were not consenting to the terms of the Release. Cougar took appropriate steps to apprise the Plaintiffs of the terms of the Release.

This case demonstrates the reality that liability releases can prevent lawsuits even when individuals are injured through the clear carelessness of others.  For this reason it is vital to consider the effects of a waiver prior to giving up your right to sue.

Infants, Injury Claims and Waivers of Liability

When people participate in riskier organized sports such as martial arts, mountain biking, skiing or rafting often times the companies that organize these events require participants to sign a ‘waiver of liability’ agreement.
These agreements generally state that in the event the participants are injured while performing the events, even if injured through the fault of the organizers, the participants will not sue the organizers of the events.  These waivers of liability come in many different forms and these contracts can be binding and effectively take away a persons rights to sue.
What about when infants (in BC people under the age of 19 are considered infants) or their parents enter into these contracts on the infants behalf?   Can these be binding?  Reasons for judgement were released today by the BC Supreme Court dealing with this issue.
In today’s case (Wong v. Lok’s Martial Arts Centre Inc.) the Plaintiff alleged he was injured when engaged in a sparring match with a Defendant in the lawsuit. The Plaintiff claimed that the defendant company was “negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches.
At the time the Plaintiff began taking martial arts courses with the Defendant the Plaintiff’s mother signed a contract which stated in part that “It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!”
The Martial Arts School brought a motion to dismiss the lawsuit based on this contract.   Mister Justice Willcock was asked specifically “whether a child’s parent can effectively execute a pre-tort release on behalf of a minor”.  The Court held that the contract was not enforceable because the Infant’s Act “does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.
Mr. Justice Willcock engaged in a thorough and lengthy analysis of the law at paragraphs 19-53 of the judgement which are worth reviewing in full for anyone interested in BC Infants Law.  In holding that this contract was not enforceable Mr. Justice Willcock concluded as follows:
[55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school…

[59] I have considered the defendant’s submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist.(1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law.  (Malamud and Karyan “Contractual Waivers for Minors In Sports-Related Activities” (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in “Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools” (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, “The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children’s Tort Liability Claims” (2001-2002) 36 U.S.F. L. Rev. 535)

[60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants’ claims after a cause of action has arisen applies with some force to pre-tort releases as well.

[61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.  The Defendant’s application is therefore dismissed.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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