Liability waivers and the personal injury lawsuit

Liability waivers are often a point of dispute in legal circles. In some cases, businesses may use waivers to shield themselves from the consequences of neglecting their duty of care. For instance, this blog recently looked at Woodhouse v. Snow Valley Resorts, a personal injury lawsuit in which Elizabeth Woodhouse sought compensation for injuries sustained at the resort, despite having signed a waiver. Ontario Superior Court Justice J.R. McCarthy decided in the plaintiff’s favour, thus ensuring that injured individuals are able to pursue compensation against negligent suppliers.

Today, we’ll look at a similar case with a different result in British Columbia, where a personal injury lawsuit deriving from a mountain biking accident has been resolved in favour of the waiver issuer.

In 2009, Blake Jamieson was injured while attempting to jump down a rock face on Whistler Mountain Resort’s A-Line trail. His rear wheel clipped the edge of the rock, and Jamieson was propelled over the front of the handlebars. He landed on the trail below and was paralyzed from his waist down.

Jamieson’s personal injury lawsuit argued that Whistler Mountain Resort did not adequately warn him of the dangers of mountain biking when he signed a waiver for a season pass. In particular, he stated that he was unaware that he could suffer a spinal injury by falling over the front bars of his bike.

The resort responded that ‘Jamieson had worked as both a volunteer trail builder and patroller at the bike park for three seasons and had already completed two years training to be a medical doctor at UBC prior to the accident,’ reports the CBC. ‘The resort’s legal team produced accident reports signed by Jamieson showing he had provided first aid at six accidents in the park involving either head or spinal cord injuries.’

Jamieson stated that his time working at the park had in no way informed him of its potential dangers. The presiding judge, Madame Justice Neena Sharma, found his statement unreliable.

“I find any reasonable person who can read English, faced with the [waiver], would understand that the risks of using the park are very serious,” Sharma said in her decision. “In my view, the release is comprehensive, clear and blunt.”

Justice Sharma also pointed out that staff and signage around the park provided clear and consistent reminders of the dangers that riders faced.

Blake Jamieson’s lawyers have since stated that the use of legal waivers “removes the legal incentive [for companies] to protect their customers,” according to the CBC. This is a valid concern: individuals should not be stripped of their fundamental rights simply for signing a waiver. However, responsible organizations should be protected from undue legal action when they provide appropriate protection to their clients.

If you have suffered an injury after signing a legal waiver, you may still be able to pursue a personal injury lawsuit. Contact the team at Will Davidson LLP today to find out how our experienced personal injury lawyers can help you access compensation for your injuries.

Are liability waivers a thing of the past?

For active Ontarians, liability waivers are a fact of life. If you’re a member of a fitness centre or recreational sports leagues, or enjoy participating in outdoor activities or visiting amusement parks, you’ve probably filled out a large number of waivers that aim to reduce companies’ risk of being held liable for your injuries.

But how much power do liability waivers really hold? Do they fully exempt businesses from liability? Can a personal injury lawyer help you, even if you’ve signed one?

In early 2017, Justice J.R. McCarthy of the Ontario Superior Court came to a decision that could change the way waivers are treated in the province.

Woodhouse v. Snow Valley Resorts

Elizabeth Woodhouse visited a ski facility run by Snow Valley Resorts in December 2008. She bought a beginner ski package, which included a lift ticket, rental equipment, and a lesson. The lift ticket included a liability release, and she also signed a “Rental Agreement & Release of Liability” containing a section titled “Waiver of Claims.”

Woodhouse was injured during her stay, hired a personal injury lawyer, and sued Snow Valley for injuries and loses.

During the trial Snow Valley Resorts acknowledged that it did not fully explained the waiver to Ms. Woodhouse, who in turn admitted that she reviewed its wording on the company’s website prior to her trip.

Because Woodhouse had signed both the lift ticket release and the Rental Agreement & Release of Liability, Snow Valley Resorts asked Justice McCarthy to dismiss the case. McCarthy disagreed, and ordered that the case proceed to trial. The Justice argued in his decision that Ms. Woodhouse was a consumer entitled to protection under the Consumer Protection Act (CPA).

Section 9(1) of the CPA dictates that “a supplier of services is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality,” and section 9(3) states that parts of consumer agreements that attempt to negate this implied warranty are void.

In other words, “a supplier of services cannot contract out its duty to provide services of a reasonably acceptable quality,” explained Kris Bonn in an excellent blog post for the Ontario Trial Lawyers Association. “That is, those parts of a waiver that limit or negate a supplier’s duty to provide safe service – which would be included in the terms “of reasonably acceptable quality” – will have no force or effect.”

The ruling is good news for injury victims and their personal injury lawyer. Does the fact that Justice McCarthy sent the case to trial mean liability waivers cannot be enforced in Ontario? Not quite. But it does guarantee that individuals who suffer an injury as a result of a supplier’s negligence will be able to pursue compensation for their injuries, regardless of having signed a waiver.

If you or a member of your family has been injured, you may be entitled to compensation. Contact a personal injury lawyer at Will Davidson LLP today to find out how we can help.

Request a free consultation

COPYRIGHT 2021 © WILL DAVIDSON LLP