Waiver Forms - what are they?
Aug 27, 2011 / 5:00 am
As a personal injury lawyer, it may come as no surprise that my friends and family joke about whether they need to sign a waiver form before entering my home. For those of you who are thinking, “Does she actually make them sign a waiver?” the answer of course is “no”, although for some family members (who shall remain nameless) it might not be a bad idea! All kidding aside, most of us have to sign waiver forms (also known as release forms or consent forms) from time to time. The main purpose of these forms is to protect the service provider from legal action. A waiver form typically states that by signing the form you are agreeing to give up your right to sue for any injuries or damages that you may suffer as a result of participating in the activity. Despite the significance of the right you are giving up, in my experience, no one ever reads these forms or is concerned that they should be reading them before signing. So, given this nonchalant attitude towards waivers, you might wonder “do waiver forms actually mean anything?”
The law with respect to children is that parents or guardians cannot waive their child’s right to pursue legal action for a claim in negligence relating to recreational activities. In other words, waiver forms in relation to children’s activities are essentially useless. This was confirmed in a case called Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385. In this case, the plaintiff’s mother signed a waiver form when enrolling her son in the martial arts school which essentially stated that she was releasing the school from liability for injury to her son. She admitted that she did not read it carefully. The plaintiff was injured when he was violently thrown to the ground in the course of a sparring match. His mother commenced legal action against the school on his behalf. The court held that the Infants Act does not permit a parent or guardian to bind a child to an agreement waiving the child’s right to bring legal action for injury.
As for adults, waiver forms are often enforceable. The court will give effect to a clearly worded waiver form that is signed prior to enrolment in the activity. In other words, if the waiver form is clear and you sign it before you start the activity, you will be bound by the terms of the form. Contrary to popular belief, there is no need for the organization to ensure that you understand or even read the document unless a reasonable person should have known that you would not consent to the terms contained in the form. Factors that impact whether certain information should have been brought to your attention include the length and format of the document, the time available for reading and understanding the document, and whether the clause in issue is contrary to your normal expectations (see Karroll v. Silver Star Mountain Resorts 1988 CarswellBC 439).
If you are involved in an accident where you have signed a waiver form, it is always a good idea to seek legal advice before deciding the fate of your case. The specific wording of the document and the particular circumstances of your case may be one where the waiver is not enforceable.
If you are the provider of a recreational activity, it is always a good idea to have a waiver form. You should make the form simple and easy to understand and wherever possible have the form reviewed by a lawyer to help ensure its enforceability. Also, despite my earlier comments, it is still in your best interest to bring the contents of the waiver form to each participant’s attention and make sure they understand what they are signing. With respect to children’s activities, although the forms are currently unenforceable, they are still useful for bringing the risks of the activity to the attention of the parents or guardian of the child and it is possible that at some point there may be a change in the law.
In conclusion, next time you are asked to sign a waiver form, understand that, at least for adults, waiver forms will often be enforceable regardless of whether you read the form. As a result, it may be worth your time to read and understand the rights you are giving up before you sign the form.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
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