Do liability waivers stand up in court?

Credit: Iwona Kellie

Despite what many people think, they do. Here’s why

On August 17, 2007, Danielle Westgeest was ready for her last run of the day at a zipline course in Whistler, B.C. Standing on a platform and harnessed to a trolley, Westgeest had no idea that another zipline participant, Deanna Loychuk, was stranded and dangling helplessly from the cable 1,500 feet below. Neither did Westgeest’s guide, apparently, who cleared her to leap from the platform and careen down the cable. With no means to stop, Westgeest barrelled into Loychuk at high speed. Both were injured in the collision.

Like most participants of organized adventure sports, the 26-year-old Westgeest and the 41-year-old Loychuk were both required to sign a liability release waiver before they were allowed to zipline with Cougar Mountain Adventures. By doing so, they theoretically relinquished their right to sue in the case of injury or death due to an honest mistake or outright negligence by the company or its employees.

After the accident, Westgeest—a recent law-school graduate—and Loychuk—who at the time operated a fitness business—decided to take Cougar Mountain Adventures to court. The pair challenged the company’s release form, arguing that it was misleading, deceptive and therefore in violation of the provincial Business Practices and Consumer Protection Act, and they claimed they were pressured into agreeing to its terms “immediately before the tour was to depart.” Despite the fact that the company admitted fault, the Supreme Court of British Columbia ruled in February that the company’s release form was “valid and enforceable [and] provides a complete defence to the Plaintiffs’ claims.” The case is now under appeal.

In legal terms, a liability release waiver is an “exclusion clause”—a contract protecting a party from liability for factors that it would otherwise be accountable for. Technically, the only loopholes in a well-written waiver are fraud and intentional or reckless behaviour.

Yet according to Vancouver lawyer Richard Lindsay—who successfully defended Cougar Mountain Adventures—the courts sometimes show “a natural sympathy” to those who suffer harm. Of the 44 court cases examined in a 2009 Manitoba Law Reform Commission report on waivers and outdoor activities, decisions were split 50-50.

Still, many legal experts argue that adventure outfitters are hiding behind waivers and getting off scot-free. Unlike doctors, lawyers and other professionals who are required by law to act within a defined “standard of care,” most outdoor adventure operators are not bound by enforceable parameters (exceptions include certified instruction in skills such as canoeing or first aid). But others argue that the alternative to waivers is steeper insurance fees.

Danial Newton, a Thunder Bay-based personal injury lawyer and outdoor enthusiast, believes more emphasis should be placed on the principle of “fundamental breach”—meaning that an outfitter “cannot escape liability for failure to do something that goes to the very root of the contract,” such as providing trained, knowledgeable guides or properly maintained rental gear.

While Newton knows the legal concessions he makes in releasing a guide from liability, he still signs waivers. “I sign them because if I want to participate, there’s no choice,” he says. But he also researches the company he’s going with and asks questions. “I never show up being completely dependent upon somebody else for my safety,” says Newton. “Arriving with some degree of skills and local knowledge is part of the reality for me.”