Please read the disclaimer before perusing the following article.
(written 1994, published Beef in B.C. March/April 94)
In August 1993, the Law Reform Commission of British Columbia published a Consultation Paper on “Recreational Injuries: Liability and Waivers in commercial Leisure Activities”.
The LRC paper has some interesting information on the form and usefulness of liability waivers. The Commission’s comments are mainly for the situation where recreational opportunities or facilities are available at a fee, with the operator intending to make a profit.
Where an accident occurs on your property, you are not automatically liable. For claim against you to succeed, the claimant must show either negligence, or Occupiers Liability Act (B.C.) responsibility.
Negligence. A claimant has to show that you were negligent and so increased the likelihood of injury beyond what is inherent in the activity. The claimant voluntarily assumes risks inherent in the activity, and the person providing the place for the activity is not responsible for a loss resulting form those risks. The LRC uses an example to distinguish between assumption of inherent risk (non-compensable) and negligence (compensable). “A guide-outfitter who uses an overloaded and poorly maintained aircraft for a fishing trip exposes guests to an unnecessary risk to fatal injury.”. The guide-outfitter will be liable for an accident resulting from overloading and poor maintenance. If an accident happens from some unforeseeable cause, a court is more likely to find that this is a risk inherent in the activity of flying to remote lakes to fish, and is voluntarily assumed by the claimant.
Occupiers Liability Act. A claimant has to show that you, an occupier, have failed in your duty under the Occupiers Liability Act, to see that the property is “reasonably safe”. In considering what is “reasonably safe”, courts look at things like:
As an example, failing to repair a rotting wooden platform despite warnings from an employee about its unsafe condition will result in liability under the Occupiers Liability Act, whether or not it was negligent for the occupier not to have repaired the platform.
For landowners putting up with trespassers making recreational use of agricultural land, note section 3(3) of the Occupiers Liability Act:
(3) Notwithstanding subsection (1), an occupiers has no duty of care to a person…in respect of risks willingly accepted by that person as his own risks, or…who enters premises that the occupier uses primarily for agricultural purposes and who would be a trespasser under the Trespass Act (B.C.), other than a duty not to…create a danger with intent to do harm to the person or damage to his property, or…act with reckless disregard to the safety of the person or the integrity of his property.
“Premises” includes land.
The people who provide recreational opportunities often try to get out from under the liability to which they might otherwise be subject in providing these opportunities. The means used are one or more of waivers, releases and indemnities.
Waiver and releases are technically different but functionally similar ways of the user giving up his or her right to sue the operator for injury, death, or property damage, including that resulting from the negligence of the operator or his or her employees.
With an indemnity, the user agrees to pay back the operator any amount the operator may become liable to pay as a result of the user’s participation in the recreational opportunity.
The operator does not have to limit himself to only one strategy—all three methods can be incorporated into one document.
These methods have been found to be legally enforceable. There are instances where they have not been enforced—but they have generally been upheld especially where their terms are reasonable and not unconscionable.
Judges are more likely to work around a release if it is being used to protect the operator against his own gross negligence and the claimant’s injuries are serious.
The following make it more likely that your release will be upheld:
One final comment with respect to releases, waivers, and indemnities, is that they cannot legally be given by, and will be ineffective against, an under-age child.