At some point in your life, you have probably tried one of the following activities: skiing, bungee jumping, zip-lining, hand-gliding, river rafting, motorcycle riding (in a class), fitness training (in a program), or martial arts training (in a class).
If you’ve done these activities, you have probably also signed a waiver, which is a document relinquishing your right to sue the company if you suffer injury (even catastrophic injury) caused by the company’s failure to look after your safety.
Some people think that waivers are worth about as much as toilet paper. But, that couldn’t be further from the truth.
Consider this real world example: Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122.
In August, 2007, two women went on a zip-line tour operated by Cougar Mountain Adventures Ltd., located at Whistler, BC.
Zip-lining involves being strapped into a harness and trolley and proceeding down a line from a higher to a lower elevation. Only one participate can travel on the line at one time (to avoid mid-air collisions between participants). A zip-tour guide is stationed at both the higher and lower elevation platforms. The guides communicate with each other via walkie-talkies to inform the other when it is safe for a participant to proceed down the line (ensuring the earlier participant has been safely removed from the line).
The rides at Whistler were over 1,500 feet long, 200 feet high, and boasted a 200 foot vertical drop. Customers could reach speeds of 100 km/hour.
One of the women was told to go down the line (by the guide). However, the other woman was still suspended on the line (and had not yet cleared the way). The women then collided with each other on the line, causing injury to both women.
The mid-air collision was entirely caused by a miscommunication between the tour guides and the only defence to Cougar Mountain was that both women, prior to riding the zip-line, signed a waiver releasing Cougar Mountain from liability.
In court, the waiver was found to be a complete defence and, despite the negligence of the guides/company, the women were not entitled to any money from Cougar Mountain.
For further illustration, here is a heinous example of when a waiver could be used a defence:
A bungee jump company knows that it should replace its bungee cords every five years; otherwise, the cords could break. But, each cable costs $50,000.00. So, instead of replacing the cable every five years, the company decides to use the cable for six years, saving some money. Now, imagine that the cord breaks and the customer falls, rendering him/her a quadriplegic (or worse).
Clearly, the company is negligent. And, without the wavier, the customer could have sued the company for pain and suffering, loss of income, and medical expenses (both past and future). But, with the waiver, the bungee company escapes being sued and, as a result, the injured customer will rely on social services for the rest of his/her life, costing taxpayers a pile of money.
Other jurisdictions don’t give such power to waivers. The United Kingdom government created the Unfair Contract Terms Act, which doesn’t allow people/companies to rely on waivers when they cause death or injury from their negligence (see section 2). Some states in America have similar law. That seems reasonable, right?
It’s not reasonable, though, that sports providers/companies are able to escape liability when they completely ‘screw up’ in keeping their customers safe.
So, how can we change this? Well, we need to pressure the government to create a law that limits the ability of companies to rely on waivers. And we need to do this now – and not wait until the next tragedy: woman falls 300 meters to her death in hand-gliding incident.
If companies were held (financially) responsible for their negligence, then you can bet that safety conditions would improve.
Lastly, I applaud two courageous Vancouver lawyers, Mr. J. Scott Stanley and Mr. Kevin Gourlay, for arguing for public safety in Loychuk v. Cougar Mountain Adventures Ltd. and for all their efforts to shine the light on the unfairness that currently exists in this area of law. Their efforts, which include providing other lawyers with research papers on this issue, represent another reason why lawyers deserve a better reputation.
**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.