March 18, 2014

Kevin Gourlay

Kevin Gourlay

CBC Marketplace recently ran a segment on liability waivers in commercial recreational sports.

Click to view a written version of the show.

In the course of the segment, they speak to a former client of mine who was injured in a zip lining accident where the zipline outfit was clearly negligent for sending her down the line while another woman was still suspended from it. Unfortunately the zip line company’s liability waiver defence held up.

As is pointed out in the Marketplace piece, consumers simply do not understand how liability waivers function. Consumers typically believe that a waiver prevents them from suing for the ordinary hazards of the activity but not for the suppliers own negligence. They do not appreciate that if the parachute company gives you a backpack with your lunch in it rather than a parachute and you die as a result, your estate has no recourse because of that waiver. This means that individuals and society bear the costs of the negligence of commercial recreational sports operations. That risk should be borne by the companies who would pay slightly higher insurance premiums and would pass that on to their consumers. In turn, if a person is rendered a quadriplegic because a zipline operation negligently fails to update its equipment, their insurance company rather than the individual and the Ministry of Health would bear that cost.

Liability Waivers and Gross Negligence

Another common misconception is that liability waivers do not apply to “gross negligence.”

The BC Law Reform Commission released its “Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities” in October, 1994. It made specific recommendations to limit (but by no means get rid of) waivers in commercial recreational sports.

Click to view the BC Law Reform Commission Report on Recreational Injuries: Liability and Waivers in Commercial Leisure Activities

It is difficult to argue with the policy considerations behind their recommendations but 20 years later, none have been implemented.

Critics of reform–namely insurance companies–suggest that if limits are placed on waivers, commercial recreational sports will cease to exist.  This is belied by the British example where bodily injury waivers have long been prohibited but commercial recreational sports continue.

More recently, the Manitoba Law Reform Commission undertook a similar study and made similar recommendations.

Click to read the Manitoba Law Reform Report on Waivers of Liability in Sporting and Recreational Injuries

The law needs to be changed to protect consumers. This is not because we should live in a nanny state. If somebody falls and hurts themselves skiing, that is a risk they undertook. But if they are catastrophically injured because the bungee company cut costs and didn’t replace a worn out bungee cord when they knew they ought to have, the bungee company should be responsible for those costs. The immunity that a waiver provides means that the company can take those risks and not take reasonable safety measures because they are gambling with their customers’ safety, not with their own bottom line.

 

 

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