Anyone who has ever participated in a recreational or sporting activity, whether offered by a community organization or commercial operator, will be familiar with the types of release and waiver forms invariably required to be signed as a condition of participation. Such forms typically purport to release the operator from liability for any and all injuries or other misfortunes that might befall the participant, even if due to the negligence of the operator. Most of us simply sign the forms so that we can participate in the activity although some (particularly if they happen to be lawyers) may occasionally wonder about the extent to which the forms are in fact binding and enforceable.
The BC Supreme Court examined this question in two recent decisions. In Arndt v. The Ruskin Slo Pitch Association, 2011 BCSC 1530 the court considered a claim by the Plaintiff, Ms. Arndt, who was injured when she stepped in a hole in the outfield while playing in a softball game organized by the Defendant Association. In defence to the claim, the Association sought to rely on a waiver signed by the Plaintiff at the commencement of the season.
Unfortunately for the Association (and fortunately for the Plaintiff) the Court found that the waiver was not sufficient to preclude the Plaintiff’s claim. The Court held that the form was deficient in two principal ways. First, the waiver was included in a larger document which functioned as the official team roster form that had to be signed by each participating player. It was not obvious to the Plaintiff that she was in fact signing a waiver and release and no one from the Association or her team pointed that out to her. Second, the language of the waiver itself fell short. On its face, it simply required that the coach and manager of each team advise the players that they were fully responsible for any damages incurred by them but it did not in fact require each player to personally waive liability as against the Association.
In light of these deficiencies, the Court held that the waiver was ineffective and the Plaintiff’s action was permitted to proceed.
The Plaintiffs in Loychuk and Westgeest v. Cougar Mountain Adventures, 2011 BCSC 193 were not as fortunate. There the Court held that a waiver was sufficient to preclude claims by the two Plaintiffs who were injured while ziplining at the Defendant’s adventure park in Whistler. The injuries were sustained when one Plaintiff was sent down the zipline even though the other Plaintiff had not completed her run and was suspended part way. This resulted in a mid-air collision causing significant injury to both Plaintiffs. It was acknowledged by the operator that the accident occurred as a result of its negligence in the form of a miscommunication between two guides. Nonetheless, the waiver signed by the Plaintiffs as a condition of participation was sufficient to immunize the Defendant operator from liability.
Unlike the waiver in the Arndt case, the waiver here was clear and explicit and on its face stated that participants “FREELY ACCEPT AND FULLY ASSUME ALL ... RISKS, DAMAGES AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS”. By signing the waiver, the participants further expressly agreed to waive all claims against the operator “DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE”.
The clear and unequivocal language of the waiver and the fact that participants were given ample opportunity to review it, led the Court to find that it was legally binding and enforceable. Of note, the Court held that there was no obligation on the part of the operator to take reasonable steps to bring the terms of the waiver and release to participants’ attention, provided that the form was such that it would be apparent to people signing it that it was a legal document and that participants had a reasonable opportunity to review the terms of the waiver. In this regard, it was not lost on the Court that one of the Plaintiffs had recently graduated from law school.
These and other similar cases make it clear that these types of standard form waivers will be enforced where they are drafted in clear language and presented in such a way as to make it clear to participants that they are signing a legal document (for example the waiver terms are not hidden in a larger document). Where these requirements are met, there is generally no obligation on the part of the operator to point out the waiver terms and a failure on the part of the person signing the document to read it or to ask questions about it will be no defence to the application of the waiver.
The lesson for those participating in activities requiring a signed waiver is therefore to read before you sign. Once you understand the risks involved and the rights that you are waiving, you can decide whether the adventure is worth it.
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