Far-reaching waivers now under scrutiny
A recent B.C. Supreme Court decision has raised long-standing concerns about whether companies in the recreational sports industry should be able to wield far-reaching liability waivers to shield themselves from lawsuits.
The ruling barred a Whistler bike park patron from suing the resort after an accident left him in a wheelchair.
The rider had signed a waiver before biking that stated (among other things) that the resort would not be liable for injury or death for any reason, including negligence or breach of contract or duty of care, and that release stood up in court.
Scott Stanley, lead counsel for the plaintiff, believes many people don’t realize the strength or scope of waivers. He wants to see the government enact a series of recommendations from the Law Reform Commission of B.C. that would limit releases in some key ways.
“I think people would be surprised that if you went and did some whitewater rafting and the boat was not maintained properly and it sunk, that you wouldn’t have any legal recourse. People wouldn’t expect that,” Stanley said in an interview.
But he would. In an average year, the personal injury lawyer handles between 20 and 40 waver cases for clients who are suffering from life-altering injuries.
“I literally see the tragedy of this every day,” he said in an interview.
Waivers are widely used in the recreation industry, in popular sports like skiing, rafting and zip-lining. Sometimes, guests sign the waivers and other times they don’t need to, Stanley explained. Either way, they are enforceable.
“Basically, if you’re aware that a waiver might apply, you’re going to be bound by the terms … whether or not you actually sign it each time,” he said.
Companies argue such waivers are necessary to prevent unlimited exposure to liability that would cause insurance costs to skyrocket or even force some operations to shut down, according to a 1994 report by the since-discontinued commission. The attorney general had requested the report, which included 24 recommendations.
The commission laid out the problem with waivers plainly.
“The concern about public safety arises because comprehensive waivers protect operators not only against frivolous claims, but also from legal responsibility for their own negligence and that of their employees. With potential liability greatly reduced or eliminated, an operator may be slower to correct a dangerous situation or make needed safety improvements, particularly if it involves significant cost,” read the report.
And as the report noted, a lingering belief persists that waivers “are not worth the paper they’re written on” or don’t hold up in court. Yet even if an operator admits its negligence caused an accident, it can be saved by a waiver.
Robert Kennedy, counsel for Whistler, said in an earlier interview that resorts would far prefer no one be injured and take steps to prevent that from happening.
He also noted that waivers signed by minors cannot be enforced, offering an incentive to make sure facilities are safe.
Kennedy said operators need the protection of waivers as the case brought forward by the mountain biker showed.
The commission recommended a compromise where an operator should not be able to exclude or limit its liability in cases where its own equipment malfunctions, is unsafe or not fit for use, or if conduct of an employee leads to injury or death, among other things.