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Inherently Dangerous Activities
“Inherently dangerous activities” are becoming more common. For example, sky diving, bungee jumping, helicopter skiing, and white water rafting are taking on increasing popularity. Before engaging in inherently dangerous activities, the participant is usually required to sign a waiver. Unfortunately, many people sign the waivers without checking to see what they just agreed to. Waivers are a very common form to fill out even in low-risk environments such as community centres. With high-risk activities, waivers take on particular importance.
Waivers for Inherently Dangerous Activities:
Signing a waiver serves a number of purposes. For example, the waiver functions to remove liability from the company, owner, employees etc. in the event that an injury occurs. The participant is essentially withdrawing their right to sue if this occurs. Another important function of the waiver is to disclose risk to the participant in advance. This allows the participant to make an informed decision after receiving full disclosure.
A waiver is a contract. The participant is agreeing to waive liability in exchange for participating in the activity, and this is binding, in most circumstances, to the participant.
Applying the Waiver When Injured:
The Supreme Court of Canada has established a test to determine whether the waiver signed by the participant should be upheld as binding.
In Tercon Contractors Ltd v British Columbia, the Supreme Court of Canada established that waivers will be enforceable when:
- The waiver applies to the circumstances in question,
- The waiver was not unconscionable when it was signed, and
- There are no public policy considerations to override the waiver
If these three steps are met, then the waiver is likely to be binding on the participant. The burden is on the participant to show that the otherwise valid waiver should not be enforced. The Court will be inclined to uphold waivers due to the importance of freedom of contract. However, using the above test under the proper facts, it may be possible to show that a waiver is unenforceable.
When waivers are clear and detailed, it is likely that they will be upheld. In these cases, participants of inherently dangerous activities may not be able to sue, and engage in these activities at their own risk.
The Court will also look to the context surrounding the waiver, and the circumstances in which it was signed. For example, the Court will be less willing to enforce a waiver of a minor’s rights. These considerations are often holistic, and as such, the decision will depend heavily on the facts of the specific case.
Subsequent Case Law:
Arif v Li
- Arif was injured while rock climbing. He had signed a waiver with Li
- Arif received a receipt, which contained a detailed and lengthy warning on the reverse side (though he did not read it)
- There was a posted notice on a sign in large font
- Arif met with Li before climbing to sign the waiver. He did not ask any questions to clarify the waiver
- Arif also signed a waiver with the Halton Region Conservation Authority
- Li then provided a safety talk before the climb
- The Court held that the waiver applied to the circumstances in question, it was not unconscionable, and there were no overriding public policy concerns
- The waiver was upheld
Alton v Lower Mainland Motocross Club
- Alton fell off a dirt bike and injured his leg
- Alton signed a waiver at home before participating, and mailed it in
- Alton had signed similar waivers with the same company the previous year
- The Court held that the waiver was clearly titled with bolded and capitalized letters, such that a careful reader would understand its significance
- There was also no rush to sign the document, so Alton could and should have taken his time to read it carefully
- The waiver was upheld
Tips with Waivers for Inherently Dangerous Activities:
Be sure to read every waiver carefully, from front to back. Waivers may include terms and conditions that you would not agree to sign if you were aware of them. Take the time to understand what you are agreeing to before you sign.
Do not sign anything you are unsure about. It is better to walk away from the activity safely than to sign away your right to sue without being sure what you are signing.
Remember that you are the one in control. You cannot be forced to sign the waiver. If you do not want to sign, it is within your rights to refuse and walk away.
If you are injured while participating in an inherently dangerous activity, speak to a personal injury lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.
This blog was written by senior personal injury lawyer Louis DelSignore and summer student Aaron Ender.