January 17, 2012
A recent decision upholds a Waiver of Liability and Assumption of Risk Agreement
Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
The British Columbia Supreme Court recently revisited the issue of the validity of Waiver of Liability and Assumption of Risk Agreements as a complete defence even when there is clear negligence.
In Loychuk v. Westgeest v. Couger Mountain Adventures Ltd et al. (decided in early 2011), two women in separate groups participated in a Zipline package. On one section of the Zipline, one of the women got stuck halfway from the start point and the second woman collided into her a high rate of speed, causing injury to both. There was no question that the Zipline guides did not communicate and the second woman should have been held back until the first was brought down.
However, both had signed a waiver of liability/assumption of risk agreement. The defence argued that that should be the end of the matter as the waiver was all encompassing, including the exclusion of liability due to the negligence of the company’s employees.
The plaintiffs argued the following:
- That the release was unenforceable because it was reasonable to know that the plaintiffs were not consenting to the terms at issue and the company failed to take steps to inform the plaintiffs of the terms; in other words there was a misrepresentation by omission;
- That the release was unconscionable;
- That the release was contrary to the Business Practices and Consumer Protection Act (British Columbia) by reason of deceptive and/or unconscionable acts by the company;
- That the release was obtained without consideration (money).