Good Risk Management Can Include Taking Responsibility Presented - PowerPoint PPT Presentation

Good Risk Management Can Include Taking Responsibility Presented by: Aron M. Bookman Matthew Wehrung February 2018

PLEASE KEEP AWAY FROM CHILDREN

DO NOT CROSS THE GRAND CANYON

TOPICS TO BE ADDRESSED 1. What is a waiver, release and indemnity as opposed to an informed consent? 2. What do all of the clauses in a typical waiver, release and indemnity agreement mean? 3. Is the waiver/release/indemnity worth the paper it is written on? 4. Why advocate for an informed consent model?

GENESIS FOR THIS PRESENTATION

UNREASONABLE RISK OF HARM “I find that there is nothing inherently dangerous about grounders such that special training or instruction is required to play it or to superintend children of the plaintiff’s age and experience who choose to do so. I must reject the argument advanced by the plaintiff that it was the sort of activity that required parental consent or approval in advance . There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.”

“NO DIVING. SHALLOW WATER”

DUDDLE V. VERNON (BCCA) “The appellants cannot be held liable for failing to warn him of dangers of which he was already aware. Thus, the conclusion that the failures to mark water depths on the pier and to orally reinforce the diving prohibition caused or contributed to Mr. Duddle’s injury was clearly wrong… In my view, the sole cause of this tragic incident was Mr. Duddle’s failure to take reasonable care for his own safety. ”

PURPOSE OF A WAIVER/RELEASE/INDEMNITY • A waiver/release/indemnity is designed to prevent a person from suing. • Or, in the case of infant participants, protect the person offering the activity from a claim by shifting the legal responsibility to the infant’s parent, guardian or supervisor by way of an indemnity. • Even if there was negligence!

FIRST THESIS FOR DISCUSSION It is ethical to require adult participants in adventure tourism and users of recreational facilities to waive their right to sue for injuries resulting from such activities.

LOYCHUK V. COUGAR MOUNTAIN (BCCA 2012) “The principle evinced by the foregoing authorities is that it is not unconscionable for the operator of a recreational-sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and its employees. If a person does not want to participate on that basis, then he or she is free not to engage in the activity.”

OCCUPIERS LIABILITY ACT DUTIES CAN BE WAIVED • Section 4 of the OLA codifies the common law whereby an occupier can “restrict or exclude” the occupier’s duty of care as long as the occupier takes “reasonable steps” to bring that restriction or exclusion to the attention of the person. • The OLA requirement is directly analogous the common law as to enforceability.

UK PROHIBITS WAIVERS UK Unfair Contract Terms Act, 1977, s. 2(1): “A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”

MUNICIPALITIES TAKING MORE RISKS

…AND MORE

CAMPBELL V. COUNTY OF BRUCE (2016) “Mountain biking, like many sports, involves an inherent risk of injury. There can be little doubt that SC knew and acknowledged a risk of injury from this activity. However, I am satisfied after reviewing the evidence that the technical features in the trails area and more particularly, Free Fall, constituted a hazard or unexpected danger. “ … “I conclude that unlike the obvious and clear risk of diving head first into shallow water , the risks posed by Free Fall and a lack of adequate signage was a hidden danger and a hazard to SC. Such danger was neither obvious nor apparent to SC.”

MEANING OF THE TERMS WAIVER/RELEASE • A waiver or release gives up a right, such as releasing a person or entity from liability for harm or damage that may occur from performing under a contract, or participating in an activity. • Example: Extreme Air Park Inc. (EAP) Participant Agreement

EAP WAIVER

POLICE INVESTIGATING AFTER MAN DIES FOLLOWING VISIT TO RICHMOND TRAMPOLINE PARK Vancouver Sun, January 25, 2018: “Before Greenwood died, he ‘was allegedly performing a series of acrobatic manoeuvres prior to a fall that caused serious injury and cardiac arrest,’… ‘(There was) no supervision whatsoever, no instruction prior to going in, nothing,’ Bouzakis said. ‘It wasn’t very comfortable because kids were jumping on top of kids, kids were staying in the pits. It was just pure chaos.’”

ADULTS CAN WAIVE THEIR RIGHT TO SUE • There is ample case law enforcing waiver agreements signed by adults. • These waivers may stop a person from suing and the courts (particularly BC Courts) are willing to dismiss the claims at the summary trial stage with evidence in support of the waiver.

COUGAR MOUNTAIN ZIP LINE

LOYCHUK V. COUGAR MOUNTAIN (2011 BCSC) • Plaintiff fitness instructor injured when zip line guides sent participant (recent law school graduate) down zip line before the plaintiff was safely out of the way. Negligence admitted. • Case dismissed on summary trial and trial judgment upheld on appeal. SCC dismissed application for leave to appeal.

BAIN V. CALGARY BOARD OF EDUCATION (1993) • Plaintiff was a low-IQ grade 11 student (19 years old) who sustained injury when he fell climbing a mountain hillside on a school trip and suffered a brain injury • Parents had signed a consent form based on planned agenda which did not include this activity • Court found there was no waiver of liability

MORGAN V. SUN PEAKS (2013) • Plaintiff fell getting on the ski lift and alleged that the ski resort employee was negligent in walking towards her to help her up rather than hitting the emergency stop button. The next chair hit her causing injury. • Plaintiff’s case dismissed with costs based on broad Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement.

VAN HOOYDONK V JONKER (ABQB 2009) • Plaintiff fell from a horse during a two-hour trail ride offered as part of a weekend retreat. • Plaintiff signed a waiver and understood that horse riding was a dangerous activity. Held that the waiver was sufficient to protect the defendants from liability even if negligence existed, despite plaintiff arguments of fundamental breach and promissory estoppel

CLARKE V. ALASKA CANOPY (ONSC 2014) • Plaintiff broke her left femur and tibia badly when she did not brake in time on a zip line and hit a tree. She testified she had difficulty with the brake on the first two zip lines and asked for help. She did what she was told by the guide and lost sight of the tree. • Plaintiff signed a Participant Agreement with a Release of Liability, Waiver of Claims and Indemnity.

ALASKA CANOPY ZIP LINE

CLARKE V. ALASKA CANOPY (ONSC 2014) • The judge dismissed the summary trial application finding: “ In this case, based on the evidence before me, there is a genuine issue requiring a trial. The full and complete context under which the agreement was signed is necessary in order to fairly and justly interpret the agreement, so that the agreement’s validity, applicability, and enforceability can be properly determined. The interests of justice require a complete evidentiary record.”

BIRSS V TIEN LUNG TAEKWON-DO CLUB (ABQB 2017) • Plaintiff suffered subdural hemotama in black belt test organized by the defendants. Defendants sought summary dismissal based on waiver terms. • Defendant Pagnotta, overheard saying he wanted to aggressively fight a black belt candidate. Intention of Pagnotta relevant to determining the availability of implied consent a defence, summary judgment denied.

SIMILAR TO CAMPELL BUT WITH A WAIVER • Jamieson v. Whistler Mountain Resort Limited Partnership , 2017 BCSC 1001: Second year medical student rendered paraplegic while mountain bike riding when his tire got caught briefly at the top of a feature called the “A- Line Rock Drop”. • Very experienced skier and had worked at the park as a volunteer. Had ridden the course before.

JAMIESON A LINE ROCK DROP

SIGNS AND FORMS • The waiver and assumption of risk form was found to bind the plaintiff resulting in dismissal of his claim on summary trial. • Argument that the release must warn of the specific risk of a spinal injury or being thrown over the handlebars did not succeed . • Release was “clear and blunt” and warning signs reinforced the risks.

PUBLIC POLICY APPLIED TO WAIVERS • Our courts will not enforce an otherwise valid exclusion clause because of the existence of an overriding public policy. • Neidermeyer v. Charlton (BCCA 2014): Zipline tour waiver not valid as to MVA claim. • Fleming v. Massey (ONCA 2016): Go-kart race waiver not valid as to claim by race director employed by raceway park.