Fun and risk tend to go hand in hand. We all seek out activities that have some inherent risk. Sure, some activities are more extreme than others. But whether it’s sky diving or softball, there is always a risk of getting hurt. And no matter what activity you do, the chances are that you will have to sign a waiver or release.
Waivers relate to your legal rights. Generally, they affect your right to sue in case something goes wrong. When you registered for beach volleyball, you may have surrendered your right to claim damages from the league. If you are paint-balling or bungee jumping at a bachelor/bachelorette party this summer, you will probably going to sign something that releases the operators from liability.
These releases and waivers are everywhere. Yet most of us skim through them just to find where we need to sign. Even those who take the time to read these forms will sign them, however reluctant they might be. I can see why. After all, what choice do you have? By the time you’re handed the waiver, you’ve already begun your adventure. You won’t want to go back home because you don’t want to sign it. Besides, all your friends are waiting! Your signature is all that stands in the way of go-karting or zip-lining or white-water rafting with them. So you do what everyone does – cast your worries aside and sign away.
Generally, you’re accepting that the operator or business won’t be legally responsible if you get injured. By signing these types of forms, you are assuming the risk yourself. Unfortunately, accidents can happen. Recently, the BC Supreme Court decided a case that arose from such an accident.
In August 2009, a medical student was mountain biking on the trails of Whistler Mountain. While on the A-Line trail, rated as a black diamond trail, he flipped over the handle bars. He suffered a spinal cord injury and was confined to a wheelchair as a result.
The mountain biker sued Whistler Mountain. To decide whether Whistler Mountain was legally responsible, the court had to consider the legal effect of the waiver signed by the mountain biker when he obtained his season pass. Whistler Mountain argued that the waiver protected them from liability for any injury he suffered while mountain biking on the trails.
To get around this waiver of liability, the mountain biker argued the waiver was invalid because it did not properly warn him of the risks. Specifically, he argued that the waiver should have warned him that he could be thrown over the handlebars on the trails, that he could suffer a severe spinal cord injury, and of the frequency of injuries from mountain biking. He also argued that he didn’t know the specific contents of the waiver that he signed and signed it in the belief that he still retained the right to seek damages against Whistler Mountain if it was at fault for his injuries.
The court disagreed, holding that Whistler Mountain was protected by the waiver. Although under special circumstances waivers can be invalid, acknowledged the court, those exceptions did not apply to the mountain biker’s situation.
Whistler Mountain’s release was clear. It was typed in bold font and highlighted at various points. The wording was also very broad: Whistler Mountain was protected from liability for any loss or injury “…due to any cause whatsoever… .” In addition to taking steps to point out the release to the mountain biker, Whistler Mountain made efforts to identify the risks in the mountain bike park. It posted multiple signs warning bikers of the danger of their trails and the inherent risk of mountain biking – especially on the advanced trails.
The court was skeptical that the mountain biker, a medical student at the time, could have failed to understand the waiver. The mountain biker was already familiar with the sport and the trails themselves. He was sufficiently aware of the risks that day. He knew what he was giving up when he signed the waiver. It denied his claim for compensation from Whistler Mountain for his injuries.
This case is a harsh reminder that the waivers that we all sign have real consequences. We don’t think much of them. However, they are important because they can leave you, and you alone, to deal with the consequences of an accident. Often, signing a waivers is the prerequisite for the fun. But as I said, fun and risk go hand in hand.