Zipping through the Waiver

January 17, 2012

A recent decision upholds a Waiver of Liability and Assumption of Risk Agreement

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
Timshel@timshelservices.com

The British Columbia Supreme Court recently revisited the issue of the validity of Waiver of Liability and Assumption of Risk Agreements as a complete defence even when there is clear negligence.

In Loychuk v. Westgeest v. Couger Mountain Adventures Ltd et al. (decided in early 2011), two women in separate groups participated in a Zipline package. On one section of the Zipline, one of the women got stuck halfway from the start point and the second woman collided into her a high rate of speed, causing injury to both. There was no question that the Zipline guides did not communicate and the second woman should have been held back until the first was brought down.

However, both had signed a waiver of liability/assumption of risk agreement. The defence argued that that should be the end of the matter as the waiver was all encompassing, including the exclusion of liability due to the negligence of the company’s employees.

The plaintiffs argued the following:

1. That the release was unenforceable because it was reasonable to know that the plaintiffs were not consenting to the terms at issue and the company failed to take steps to inform the plaintiffs of the terms; in other words there was a misrepresentation by omission;
2. That the release was unconscionable;
3. That the release was contrary to the Business Practices and Consumer Protection Act (British Columbia) by reason of deceptive and/or unconscionable acts by the company;
4. That the release was obtained without consideration (money).

While the plaintiffs acknowledged that waivers were commonly used, they argued that the other situations in which waivers are signed involved some measure of control by the participants signing, however, with respect to ziplining, the participants had little or no control and their personal safety was completely in the hands of the zipline operator.
It needs to be noted that neither plaintiff was ignorant of waivers — one defendant ran a kickboxing studio, used waivers and in fact insisted that they must be signed before anyone could participate; the other plaintiff had just finished her last semester of law school. Both had signed waivers for other “risky” activities in the past.

In this case, the court found that the waiver was a complete bar to bringing the action, and therefore the case was dismissed. First, both plaintiffs had reviewed the company’s website and were aware that the site stated that all participants would be required to sign a waiver. It was clearly stated that if a person refused to sign a waiver, they would not be allowed to participate in the activity. Secondly, the waiver was provided to them prior to commencement of the activity and provided detailed wording of the activity, the risks and the scope of the waiver. There was a clear warning that signing of the waiver meant releasing the company of all liability. All participants were required to sign next to the warning and again, below where it stated that they had read the waiver and agreed to be bound by its terms. Thirdly, the Business Practices and Consumer Protection Act was a novel approach as both plaintiffs agreed that it had not been used in this context involving sports activities. The court did not accept the argument being of the view that there was no deception or unconscionable act. Finally, the consideration argument was dismissed as there was payment for the activity and it was clear that one could not participate unless one signed the waiver and this was clearly stated from the outset.

Generally courts have been receptive to waivers provided they fulfill several requirements:

1. Look at the expectations of the parties.
In an earlier case, the B.C. court stated:
‘A sport which by its nature, carries with it significant risks of injury or death draws participants who are, in general terms, knowledgeable and cognizant of those risks. Their participation in these events is predicated on a recognition of those risks by all concerned, rules and procedures which seek to minimize the risks and the agreement of all involved that no action will be taken in the event of injury or death’.

Essentially, we know that there are many sports and activities which carry a risk of injury at a minimum and it would be unreasonable to expect ski resort, car racing associations, and many sports leagues to be the insurer for all damage. However, many courts will want to hear the facts of the particular case to establish what the expectations of the parties were at the relevant time. Additionally, it cannot be assumed that third parties to the one tendering the waiver will be automatically included in the waiver — it will depend on what intentions were on the part of the third party and the tenderer.

2. The waiver must clear regarding what is being waived.
Liability waivers should be visible and mention that the waiver includes waiver of negligence of the employees. A voluntary assumption of risk agreement will be dependent on the consent of the party to engage in the activity with the full knowledge of the inherent risks.

There is no general requirement that the party tendering the agreement need take reasonable steps to inform the signor of onerous terms or ensure that they read and understand the terms. However, the issue will be whether a reasonable person would know that a signor did not intend to agree to a liability release and if the answer is yes, then the contents of the waiver need to be brought to the attention of the signor.

That said, there have been cases in which a release/waiver has been quickly thrust in front of a person, told to sign and then filed away without proper information, and the court has found the waiver was invalid. It is worth a bit of extra time to walk the participant through the document.

3. The party signing must be able to understand what it is that he or she is signing.
In a classic case, a participant in a winter inner tube race was intoxicated when he signed the waiver. The court found it to be invalid as he did not have the capacity to understand what he was signing.

Clearly, the courts have been willing to find great favour with waiver of liability agreements, provided they are prepared properly and their expectations managed. A simple failure to read the document by the participant will not meet with much success.