Think back to the last time you went ziplining, white-water rafting or visited a water park.
Before you strapped on a life jacket, soared through the skies or plunged into the pool, you were likely given a waiver to sign.
In most cases, it’s a step that’s almost immediately forgotten amid a fun and adrenaline-filled day. Many people dismiss them thinking our courts would never enforce them. But a review of the case law shows that they are often enforced and stand as a further risk you cannot ignore.
For a minority of people who suffer serious, life-altering injuries while participating in high-risk activities, the wording of those waivers can have huge, lifelong implications.
In his work as a personal injury lawyer, Peter Cronyn – a partner at Nelligan O’Brien Payne LLP – has seen the consequences first-hand.
“You can draw a line through someone’s life – the before and after,” he says.
As he helps clients who have been seriously hurt seek legal remedies that will help them put the pieces of their lives back together, Cronyn says the whole case can turn based on the waiver signed before an accident took place.
Waivers are contracts and the terms are always non-negotiable. Your choice is simple: sign or don’t participate. Most people, having arrived at an aerial park, rafting launch point or other activity base are unlikely to turn around and head home because they don’t like the language in a waiver.
"Go in with your eyes open and do everything in your power to prepare yourself.”"
But that doesn’t mean participants can’t gain a better understanding of what they’re signing – or take additional steps to stay safe.
“These activities offer tremendous fun and excitement. I don’t want to discourage people from doing them,” says Cronyn. “But they are also risky, so go in with your eyes open and do everything in your power to prepare yourself.”
A cursory web search will reveal a lot about an activity operator, including online reviews, news stories about any past incidents and an outline of the potential risks involved.
Many high-risk activities have their own governing body that offers safety training, certification and inspections. Scuba divers, for example, are licensed by the Professional Association of Diving Instructors (PADI).
When selecting an operator for your next adventure, Cronyn recommends seeking out a company with an affiliation to a governing body when possible. They will be more apt to have properly certified guides and well-maintained equipment.
Most companies will also provide their waiver ahead of time or online for participants to review.
Though activities that require a waiver carry, by definition, some element of risk, the choice to take part should ultimately come down to a realistic assessment of the potential risks and proper preparation on the part of the participant.
Almost everyone has signed a waiver, be it before the start of a beer league softball season or prior to leaping off a bungee jumping platform.
But despite the ubiquity of such forms, few understand the significance behind them.
Though waivers vary in length and complexity, most contain three integral components:
- Outline of risks associated with the activity. This section can get specific, and typically includes a line that highlights participants assume risks “up to and including death.”
- Hold harmless clause. This is the meat of a waiver, where an operator has participants sign away their right to seek damages in the event of an accident. In most waivers, Cronyn explains that there is typically also a clause that prevents the signatory’s family from filing a lawsuit in the event that they are killed.
- Operator’s negligence clause. Most waivers also include a clause absolving the operator from liability even if an accident was directly caused by their negligence.
Many people would understandably assume that even if they signed a waiver, an activity operator would still be liable for an incident if they were found to be negligent.
However, that’s not always the case.
In a 2012 British Columbia ruling, the court upheld a waiver after two women were seriously injured while ziplining, despite the accident they were involved in having been the operator’s fault.
The pair were at Cougar Mountain Adventures in Whistler. One of the women went down the zipline but got stuck part way, out of the line of sight of the top of the ride. Rather than waiting for an all-clear from the guide at the bottom, the employee at the top of the line sent the next rider down. She crashed into the stopped rider, and both were seriously hurt.
The court found that since both women had been warned of the dangers of the activity and had signed a waiver before taking part, they had waived their rights to seek damages.
The case – and others like it – implicitly underscores the responsibility of individuals to evaluate the potential risks of participating in any activity.
“You are your own protector,” says Cronyn. “I would rather you be safe than having to see me.”
To learn more about Nelligan O’Brien Payne LLP’s personal injury team, head to nelligan.ca.