Waivers Continued

Waivers Continued

On July 3, 2013, I wrote about the importance of legal Waivers and how a stable owner or instructor can effectively minimize their risk by using them. In this article, I’ll cover some actual court cases that illustrate when the courts have and have not enforced Waivers in high risk sports. Please keep in mind that the injured participants in these cases were adults. The law as it relates to minors is not the same. In British Columbia, for example, the Infants Act does not permit a parent or guardian to bind a minor child to an agreement waiving that child’s right to bring a lawsuit if the child suffers an injury resulting from negligence. The minor also preserves her right to bring a lawsuit until she reaches the age of majority. Although that may be the case, a stable owner or instructor should still present a properly worded Waiver to parents and guardians requiring them to sign away their right to sue. Furthermore, if the Waiver includes an indemnification clause, parents or guardians may have to pay for the defence of the stable owner or instructor should the minor commence a lawsuit against them.

Waivers that the Courts Enforced

In Karroll v. Silver Star, 1988 CanLII 3094 (BCSC), (1988), 33 B.C.L.R. (2d) 160, the plaintiff suffered a broken leg in a downhill ski race. The plaintiff alleged that the defendants were negligent in failing to ensure that the downhill race course was clear of other skiers before allowing her to race the course. The defendants denied responsibility for the collision.

Before the race, she signed a one page document entitled, “Release and Indemnity – Please read carefully.” The plaintiff knew it was a legal document affecting her rights because she explained to her friend that she had to sign the Waiver if she wanted to race and it prevented her from bringing a lawsuit against the mountain if she injured herself. The Waiver was short and easy to read and also commonplace for ski races. The court held that the Waiver was enforceable. The court found that a reasonable person would have concluded that the plaintiff agreed to be bound by the Waiver’s terms, and the defendant also took reasonable steps through the capitalized heading to bring the contents of the Waiver to her attention.

In Loychuk v. Cougar Mountain Adventures Ltd., 2011 BCSC 193 (CanLII), 2011 BCSC 193, the plaintiffs were injured when they collided on a zipline operated by the defendant, Cougar Mountain Adventures Ltd. (“Cougar”) at Whistler, British Columbia. Cougar conceded that the accident was caused by the negligence of its employees. At the time of the accident, one of the plaintiffs was the owner of a fitness business, which offered kick boxing/fitness programs for women. This plaintiff required her clients to sign a Waiver before participating in any programs. The other plaintiff was a recent law school graduate.

Before being strapped into the zipline harness, each plaintiff signed a one page Waiver entitled, “Release of Liability, Waiver of Claims and Assumption of Risk Agreement”. They were given sufficient time to read it. The court held that the Waivers were enforceable. Both plaintiffs acknowledged that they knew from their reading of the Waiver that it limited their legal rights to sue. The court further noted that the large bold print at the top of the Waiver and the directions to read carefully should have alerted the most casual reader of the Waiver’s terms.

In Clarke v. Action Driving School Ltd., 62 A.C.W.S. (3d) 1240 (BCSC), the plaintiff was injured while he was in a motorcycle lesson at the defendant’s driving school. The plaintiff alleged that he glanced over the Waiver before he signed it. The defendant’s Waiver was included on the flip-side of an application for the defendant’s motorcycle driving lesson. It was separately signed by the plaintiff and witnessed. The court found that the plaintiff was an educated professional who fully comprehended the document that he signed. He did not ask any questions before signing the Waiver and he had the opportunity to read the Waiver if he wished to do so. The court held that the Waiver was enforceable and the plaintiff was provided adequate notice of it.

Waivers that the Court did not Enforce

In Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 S.C.R. 1186, the defendant held a competition that involved two‑person teams sliding down a mogulled portion of a steep hill in oversized inner tubes. A few days before the race, the plaintiff signed an “Official Entry Form and Waiver” without reading it. During the competition, the plaintiff suffered a neck injury in the second heat and was rendered a quadriplegic. He was visibly drunk before the start of the second heat, but the defendant’s employees did not take any steps to stop him from competing. The trial judge held that the Waiver was not enforceable and found the Waiver was not drawn to the plaintiff’s attention and he was not aware of its existence. The plaintiff thought he was simply signing an entry form. This lawsuit was appealed all the way to the Supreme Court of Canada (the “SCC”). Relying on the trial judge’s findings of fact, the SCC held that the Waiver was not enforceable. The SCC also held that the defendant had a positive duty at law to take steps to prevent a visibly intoxicated person from competing in its dangerous competition.

In Arndt v. Ruskin Slow Pitch Association (2011) BCSC 1530), the plaintiff was injured when she stepped in a hole on a softball field while running to catch a fly ball. The defendant’s Waiver was included as part of a team roster. The court found that the document, on its face, did not appear to be a Waiver. It looked like a team roster. The court further found that the coach did not give any direction or information to the team. He presented the document attached to a clipboard, which was handed around for signature by the team at the first practice. The coach did not tell the plaintiff and her teammates that they were responsible for any damages that they may incur. The words, “I agree to waiver” on the signature lines were faint and almost undetectable. The court held that the Waiver was not enforceable.

I hope these cases help to illustrate when Waivers are and are not enforceable. The law on Waivers is an area that I regularly research because of its complexities. Needless to say, you should consult an experienced equine lawyer to review your waiver to make sure it’s protecting you from liability.

I would like to give a special thank you to Michelle Steacy and Susan Hughes for their contributions to this article and my previous article on Waivers.

(A version of this article is also in July 2013’s edition of Saddle Up Magazine.)