Ranchers often express anxiety about liability for accidents occurring on their land, whether from use or activities to which they’ve consented, or from use by trespassers.
In both cases, ample liability insurance coverage is the first, best way to address responsibility for accidents on the ranch.
Limiting risk from recreational use by trespassers involves the Occupiers Liability Act (BC). I’ve written articles about the Act and cases under it, and about liability waivers as well, in 2011, 1998, 1997, 1994, and 1990. These articles are at www.mmlc.ca.
Limiting risk from recreational use by persons with consent of the landowner can be addressed by requiring that the person sign a liability waiver, which, to be effective, requires that it be signed using a correct procedure. An alternative is to deny access. Both strategies require that the rancher spends time policing access to the ranch, something many ranchers lack the resources to do.
I have drafted a number of liability waivers over the years, and clients are often dismayed at the tough language in the waiver document, which warns recreationists of the risk of injury or death involved in the planned activities, and relieves the land owner from any type of liability which might arise. These are unfriendly—but useful—documents.
Liability waivers are not effective for under-age persons. An under-age person (18 or under in British Columbia) cannot give a legally effective waiver, and a parent or guardian cannot give a legally effective waiver on behalf of the child. A lawyer drafting a release for a child’s activities may try to have the parent indemnify the land owner for any damages suffered by the child.
The procedure for getting a liability waiver signed is:
So, are liability waivers really useful? Do they protect the land owner?
The case of Jamieson v. Whistler Mountain Resort Limited Partnership, a Supreme Court of British Columbia case decided on June 16, 2017, is one of a number of cases where a liability waiver saved the land owner, in this case Whistler, from liability for a serious accident.
At the time of the accident in 2009, the plaintiff Blake Jamieson was a second year medical student with an undergraduate degree in English Literature. At the time of the summary trial in 2016, he was a qualified radiologist.
He was seriously injured when mountain biking in a Whistler-owned and operated bike park. The back tire of his mountain bike caught on the ground surface at the top of the “A-Line Rock Drop”, he was thrown over the handlebars, suffered a spinal cord injury and is confined to a wheelchair. The evidence from the Whistler staff who attended the accident scene at the Rock Drop was that Dr. Jamieson had been attempting a “pre-jump” to clear the Rock Drop. This advanced manoeuver had been unsuccessful, resulting in the accident.
From his youth to the time of the accident, Dr. Jamieson was an avid downhill skier, ski racer, and heli-skier. He had helped to build the trails in the bike park where he had the accident, and was a volunteer patroller in the 2004, 2005 and 2006 seasons. As such, he responded to accidents, did first-aid assessments and treatment, including cervical spine procedures with a C-Spine board and cervical collars, and called emergency health personnel if required.
Dr. Jamieson’s sworn evidence was that he had “no idea that a spinal cord injury was possible and specifically that going over the handlebars was a common mechanism of injury”.
Whistler contested Dr. Jamieson’s assertion that he did not know that a spinal cord injury was possible or that going over the handlebars often resulted in injury. Whistler provided six accident reports completed by that Dr. Jamieson when he was a patroller, all relating to accidents where patrons had gone over the handlebars and been injured.
Whistler also brought the release itself into court—the “Whistler Blackcomb Mountain Biking Waiver of Claims Assumption of Risk and Indemnity Agreement Release”. The release is four pages of 8 ½ x 11 inch paper with the most important clauses outlined in red and highlighted in yellow.
The main part of the release language read as follows: “1. TO WAIVE ANY AND ALL CLAIMS I have or may in the future have against the RELEASEES AND TO RELEASE THE RELEASEES from any and all liability for any loss, damage, expense or injury, including death, that I may suffer or that my next of kin may suffer, as a result of my participation in Mountain Biking, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT, ON THE PART OF THE RELEASEES, AND FURTHER INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF MOUNTAIN BIKING REFERRED TO ABOVE.”
In addition, Whistler had signs at the entry and exit of the Bike Park with “STOP – READ THIS” at the top which included warnings about the potential of injury and the statement “WHISTLER MOUNTAIN’S LIABILITY FOR ANY INJURY OR LOSS IS EXCLUDED BY THE TERMS AND CONDITIONS ON YOUR TICKET OR BIKE PARK PASS RELEASE OF LIABILITY.”
Whistler also warned patrons about the skill level required to use the trail that Dr. Jamieson was on, and had a test feature at the top of the trail so that patrons could test their skill level and if they were uncomfortable biking through the test feature, then they could exit to other trails more suited to their skill level.
Whistler had evidence from its staff of the procedure for signing the liability waiver when a patron bought a bike park ticket. The park staff were trained to say to each patron when the release was given to the patron for signing “This is a release of liability and waiver of claims. It is a legal document, so you should make sure you read through it and understand what you are signing. I will be your witness.”
They then gave the patron time to read the release and before witnessing it, the staff asked “Have you read and understood what you have signed” and would only witness the patron’s signature if the patron answered “yes”.
Dr. Jamieson had signed the release although he said that he had not read it. He believed he still could sue if Whistler did something wrong, and that Whistler had an active duty to warn him of specific risks such as the risk of a spinal cord injury resulting from his going over the handlebars of his mountain bike.
Whistler had additional safety precautions as well as the release. The trail involved in the accident was inspected every morning to ensure that it was in good condition and properly maintained, including signage, fencing, and drainage. Whistler not only had evidence from staff people, it had documents where staff recorded their daily compliance with procedures for, for example, the daily inspection.
The judge decided that the key factors to consider in assessing the validity and enforceability of the release, were the content and presentation of the text of the release, the personal circumstances of the plaintiff, Dr. Jamieson, and the context of the accident.
In this case, the judge found that the knowledge and experience of Dr. Jamieson—his skiing and ski racing background, his educational level, his previous signing of various liability releases for such activities as skiing and heli-skiing, and his activities as a patroller of the bike park—were highly relevant to the decision. The inference is that Dr. Jamieson knew or should have known what he was signing.
The judge also noted that Whistler did not have an obligation to warn patrons to a specific mechanism of injury or possible injury. Identification of specific risks is not generally required. If the waiver is broad in scope and effect, with an explicit heading in bold print and a body that contains the waiver of all claims for any cause including negligence, or is drafted so as to include nearly every conceivable form of negligence duty that might be imposed, the content of the release is sufficient. The release did not have to describe every conceivable potential way that an accident could happen, nor every possible injury, to be effective.
The judge found that the person signing the release is bound by it whether or not the person reads the release. Where a party has signed a written agreement it is immaterial to the question of his liability under it that he has not read it and does not know its contents.
The judge outlined the release document itself, a four-page booklet more fully described in the decision. (The full decision is available at www.courts.gov.bc.ca for anyone who wants to read it.) Her conclusion was that “the release has many other features…that put it beyond dispute that a person signing the release could not sue Whistler for any personal injury no matter how it was sustained”. She rejected the assertion that Dr. Jamieson was unaware of the legal effect of the release.
The final part of the decision was whether the Business Practices and Consumer Protection Act applied. Dr. Jamieson’s assertion was that Whistler engaged in unconscionable or deceptive acts or practices contrary to sections 4(5) and 8 of the Act. Previous case law determined that the statute did not overrule the liability waiver that the plaintiff had signed. The judge also found that Whistler had not engaged in unconscionable or deceptive acts or practices.
The liability waiver was valid and enforceable. Dr. Jamieson’s claim was dismissed.
This decision shows that a well-drafted liability waiver obtained with correct procedures, can protect the land owner from a claim from an injured participant in an activity on ranch land.