Sports enthusiasts: Beware of what you sign

Whether out on the slopes for a day, registering for recreational sports programs or joining a gym, we are routinely asked to sign waivers releasing operators from liability for any injury we may suffer in the course of physical activity.

However common place this may be, it is crucial that participants understand that the simple act of signing a release can have a significant impact on a participant's right to sue, even in the case of extremely serious personal injury. This was demonstrated in the recent case of Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001.

In Jamieson, the plaintiff bought a season's pass for the mountain biking park (the "Park") owned and operated by Whistler Mountain Resort Limited Partnership ("Whistler"). Like all patrons of the Park, the plaintiff signed a four page release as a condition of using the Park (the "Release").

On August 28, 2009, the plaintiff went mountain biking in the Park. During his ride, the plaintiff's tire got caught in some terrain causing him to be thrown over the handlebars. The plaintiff suffered a serious spinal cord injury as a result of the incident.

The plaintiff brought a lawsuit against Whistler seeking compensation for his injuries. In response, Whistler brought an application seeking to enforce the Release and dismiss the plaintiff's claim.

The crux of the issue raised in the application was whether the Release signed by the plaintiff was valid and enforceable such that the plaintiff was precluded from bringing the action. In addressing this issue, Madam Justice Sharma examined the text of the Release in the context of the other facts of the case as well as the nature of the risks at the Park in order to determine if Whistler had met its duty to warn.

(i) Was the Release valid and enforceable?

Madam Justice Sharma reviewed the legal principles arising from the case law regarding validity and enforceability of waiver agreements in the context of recreational activities. She explained that, in considering the validity and enforceability of the Release, "the content and presentation of the text of the Release is an important, potentially decisive issue; but courts also look at the personal circumstances of the plaintiff, and the context of the accident."[1]

In the case before her, Madam Justice Sharma found that the content/presentation of the text of the Release and the plaintiff's circumstances supported the validity and enforceability of the Release.

Content & Presentation of the Release

Madam Justice Sharma found the Release to be "comprehensive, clear and blunt" and concluded that "any reasonable person, who can read English, faced with the document, would understand that the risks of using the Park are very serious, and that by signing it, the person waives his or her right to sue Whistler."[2]

Importantly, Madam Justice Sharma's discussion of the content and presentation of the release provides some guidance as to the type of features a court will consider relevant to the validity and enforceability of the waiver. In particular:

• Madam Justice Sharma found the wording of the waiver in the Release was "independently sufficient" to make the waiver valid.[3] She highlighted the key wording in the Release was contained in the waiver provision which provided that:

[A]ny and all liability for any loss, damage, expense or injury, including death, that [the signatory] may suffer … as a result of [their] participation in Mountain Biking, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE".

• Several other features of the Release put it "beyond dispute that a person signing the Release could not sue Whistler for any personal injury no matter how it was sustained."[4] These features included:
  • The text printed on the inside of a bold-lined box highlighted in yellow:

RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT

(hereinafter the "Release Agreement")

BY SIGNING THIS RELEASE AGREEMENT YOU WILL WAIVE OR GIVE UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT.

PLEASE READ CAREFULLY!

• The requirement that the patron initial next to the statement: "I have been offered a copy of this Release Agreement and I have been advised to read it carefully".
• The text on the second page of the Release is printed horizontally so that the reader had to turn the Release sideways to read it. This text included a black box at the top of the page with "STOP-READ THIS!!!" printed in bold, capital, italicized and larger font. Several statements were set out below this text including "Use of the Bike Parks involves the risk of injury. You control the degree of risk you will encounter in using the trails and features in the Bike Parks".

Notably, Madam Justice Sharma accepted that other measures taken by Whistler reiterated the waiver's terms and effect. These measures included:

• Whistler's staff being specifically trained to say the following to each guest every time they presented the Release:

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.

Staff would also ask whether the person read and understood what they signed. Absent confirmation that the person read and understood, staff would not witness the patron's signature on the Release.

• The posting of signs in the Park that stated "STOP - READ THIS!" with text underneath including:

"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".

In addition, a sign was posted at the beginning of the trial the plaintiff was using at the time of the Incident. This sign had the title "WARNING" in large yellow letters printed on a red background. Underneath, the sign stated:

"THIS IS AN ADVANCED TRAIL. THE FIRST FEATURE IS A REFLECTION OF THE SKILL NEEDED TO RIDE THIS TRAIL. IF YOU ARE HAVING TROUBLE NOW, YOU SHOULD NOT START".

Ultimately, Madam Justice Sharma concluded that the plaintiff knew and understood the impact of signing the Release.[5]

The Plaintiff's Circumstances

Madam Justice Sharma found the cases made it clear that the characteristics of the plaintiff were relevant to determining if the exclusion of liability was enforceable.[6] She agreed with Whistler's submissions that the following characteristics were supportive of its position:

• The plaintiff was highly educated having completed an undergraduate degree and two years of medical school at the time of the accident;
• The Release was not the first release signed by the plaintiff. He had previously signed Releases as part of his participation in other seemingly high-risk activities (i.e. ski racing, hell-skiing); and
• The plaintiff had been a volunteer first responder at the Park and had personal involvement with incidents involving injured riders.[7]

Ultimately, Madam Justice Sharma concluded that the plaintiff was aware of the possibility of spinal injury resulting from biking in the Park.[8]

(ii) Did the Release adequately warn of the risk of using the Park?

Being satisfied that the Release was valid and enforceable, Madam Justice Sharma considered whether the Release adequately warned of the risks associated with use of the Park.

The plaintiff argued that, notwithstanding the "comprehensive and broad wording of the Release", it was invalid because it failed to adequately warn of the specific risk of spinal injury or the probability of sustaining that kind of injury. This argument was rejected by Madam Justice Sharma. Instead she found that:

The law does not require a waiver to identify with specificity every mechanism of injury or possible injury in the face of a broadly worded, comprehensive waiver. The Release is comprehensive; it clearly excludes liability for any loss or injury no matter how caused. … Given that, it is unnecessary for me to make a factual finding about any specific risks from using the Park.[9]

Simply put, the Release provided adequate warning even though spinal injuries and the risk of being thrown over a bike's handlebars were not mentioned.

Conclusion

The decision in Jamieson acts as a powerful reminder to recreational facilities and their patrons of the significant effect a waiver or release can have in the event an injury is sustained at the facility.

While the overall precedential value of this decision may be limited given the Court's focus on the unique and helpful set of facts in favour of the defence, the decision is helpful in other ways. In particular, it highlights the steps that can be taken by a recreational facility to ensure the enforceability of their releases. This valuable guidance can be leveraged by recreational facilities to formulate or improve the steps currently taken at their own facilities.