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High Risk Activity Waivers are Valid When Properly Drafted
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A recent decision from the British Columbia Court of Appeal has confirmed that waivers signed by people participating in high-risk recreational activities are valid where properly drafted. In the BC case two women sued a zip-line operator and lost, even where it was shown that operator negligence had caused them to collide at high speeds and suffer continuing painful personal injury. For most people, the general expectation is that the waiver will not prevent them from bringing a claim where they are injured during the activity, particularly where operator negligence is the cause. The waiver is viewed as a contract between two parties, each giving and taking away rights. In this waiver, the participants gave away their right for damages even though employee error or negligence was the cause of the accident. The operator admitted that they were at fault for the accident. The operator failed to ensure the zip line was clear before sending the next participant down the line. The previous participant did not make it to the next platform and was suspended on the line. The next participant was sent on by the operator’s employee and then collided with the suspended participant. The cause of the accident was due to miscommunication between the guides. At trial the judge rejected the arguments that the operator failed to bring the details of the waiver to the attention of the participants and further rejected arguments that the waiver was unconscionable and deceptive and as a result invalid. The Court of Appeal noted that on the facts the operator did take steps to bring the contents of the release to the attention of the participants and that they had time to read the waiver. The participants would have had to show some inequality in the position of the parties. In this case both participants knew that people that engage in this type of activity must sign waivers and that they were valid contracts. It was noted in the decision that the participants acknowledge that there is a well-established line of authority in Canada holding that releases relating to recreational sports activities are not unconscionable. The appeal court also noted that “the authorities are clear that there is no power-imbalance where a person wishes to engage in an inherently risky recreational activity that is controlled or operated by another. Equally important, they are also clear that it is not unfair for the operator to require a release or waiver as a condition of participating.” 

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Posted on Wednesday, Jul 18, 2012 - 10:33:00 AM EST
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