Waivers of Liability: The Real World Consequences

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(Updated March 15, 2012 – an 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.

bc injury law, Loychuk v. Cougar Mountain Adventures Ltd., Mr. Justice Goepel, Release of Liability, Waiver of Liability

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ERIK
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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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