Resort not responsible for cyclist’s injuries
If you sign a waiver and then get hurt, you may be unable to sue for compensation.
That is among the lessons in a recent B.C. Supreme Court ruling that determined the release Blake Jamieson had signed before biking in Whistler in 2009 barred him from suing the resort over an accident that left him in a wheelchair.
Jamieson, who earned a degree in radiology at the University of B.C. since the fall, claimed in his suit that Whistler “failed to warn him of the risks involved” in riding in the bike park, and he had sought compensation for his injuries.
Jamieson was a competent rider capable of hitting double black-diamond trails and for three years had been a volunteer patroller at the bike park before he took on the A-Line Trail on Aug. 28, 2009, according to Justice Neena Sharma’s ruling.
It was a trail the biker knew, and it was classified with a single black diamond.
About two-thirds of the way down A-Line is a rock drop — a granite slab angled at about 45 degrees. Riders can try the drop or they can choose to bike around it. Jamieson went for it.
Before the biker used the park, he signed a four-page agreement that waived claims against the resort and released it from “liability for any loss, damage, expense or injury, including death.”
But Jamieson later claimed he was rushed through the signature process because he was in a lineup of people. He said he didn’t know he had signed a waiver and nothing in the ticket alerted him that biking at the park carried a high risk of serious injury.
Also, his time as a patroller led him to believe the risk was minimal, he said.
“I had no idea that a spinal-cord injury was possible and specifically that going over the handlebars was a common mechanism of injury,” Jamieson said.
But that is exactly what D’Arcy McLeish, a park patroller, figured had happened when he arrived at the scene of Jamieson’s crash.
He said Jamieson told him he had tried to “pre-jump” the drop — an expert manoeuvre used to shave time off a run. McLeish assumed Jamieson hit the lip of the drop with his rear tire on descent then catapulted over the handlebars.
In her ruling, Sharma found Whistler’s warnings were reasonable and that someone who signed the release would understand they were waiving their right to sue.
” ... The Release is comprehensive, clear and blunt. I do not see how any adult with basic reading skills could reasonably believe he or she retained the right to sue Whistler if they were injured using the park, even if Whistler was negligent,” Sharma wrote.
For Scott Stanley, lead counsel for Jamieson, releases remove the legal incentive for companies to protect customers.
“Essentially anyone who has signed a waiver for any activity in B.C. should operate on the assumptions that they have no legal recourse against the provider even if their conduct is egregious,” he said in a written statement.
But Robert Kennedy, counsel for the resort, noted that releases are unenforceable for minors, which acts as “a huge incentive” to keep the premises safe.
And minor or not, “we would far prefer that no one be injured doing anything,” he said in an interview.
Kennedy said the case underscored why a release defence is important.
“If anyone had full knowledge and understanding of the risk of the sport it was the plaintiff in this case. And yet his theory of liability is: ‘Oh, I didn’t know I could get seriously hurt.’
“For an operator such as Whistler … clearly they need some sort of protection.”