The court also considered a variety of secondary sources, including academic commentary on the subject. All the court`s comments agreed that waivers restricting the rights of minors are invalid and unenforceable because contracts restricting children`s rights are invalid – whether or not their parents signed them – and that it is a matter of public policy to protect the interests of minors.8 The Court of Justice in the Alton case reiterated that: that derogations should not be excessively long. complicated or misleading. It should be clear that the document is a waiver of liability. [16] The Court noted that the waiver in this case is clearly titled in bold. [17] In the applications, the Court of Appeal found that the misrepresentation of the waiver in this case was fatal to their application. [18] UPDATE – April 30, 2014 – The following decision was overturned by the British Columbia Court of Appeal I have already discussed the actual consequences of the waiver of liability and the fact that these individuals, who have been seriously injured through the fault of others, can withdraw a meaningful legal remedy. The reasons for the decision were released today by the Supreme Court of British Columbia, the Vancouver Registry, setting a troubling precedent that allows such a waiver to apply in a motor vehicle collision claim. In today`s case (Niedermeyer v.
Charlton), the applicant undertook a visit to Whistler, British Columbia, to participate in various activities, including a zipline experience. Transportation to and from Whistler was provided by the defendant. During the return journey, the bus driver “allowed the bus to get too close to the side of the road and. the bus went off the road and crossed the edge.” The Applicant suffered serious injuries, including a fracture to his neck, ribs and vertebrae. Prior to the trip, the plaintiff signed a waiver that covered activities such as ziplining, but also included a clause on “travel to and from tourist areas.” The defendant, like most british Columbia motorists, was insured with ICBC and the plaintiff filed a lawsuit for damages. The defendant admitted that he had acted negligently, but the waiver was upheld and the plaintiff`s claim dismissed. Armstrong J. justified this on the following grounds: [80] In my view, the publication is a clear and relatively easy-to-read document. While some of the pressure is low, large capitalized parts of the release draw attention to the important features of safety, risk-taking, indemnification, and waiver of claims. A reasonable person would recognize the purpose and scope of the document, including the connection between release and travel to and from the place of visit.
[81] I concluded that the respondents were not required to refer to the waiver clauses, in particular the transportation of buses to and from the visit site. There were no particularities of the bus journey, unlike other zipline activities that should have been brought to the applicant`s attention. [93] I have great sympathy for the Applicant for the injuries sustained in the accident. The claimant is entitled to a certain benefit as an insured under Part VII of the Act. However, the plaintiff is not entitled to damages due to the defendant`s negligence, since he waived this right when he accepted the waiver and compensation of all claims as a condition of using the defendant`s zip line. This is a worrying outcome that could pave the way for commercial vehicle operators to require customers to sign liability waivers that essentially protect those operators from negligent injury. Justice Armstrong found that such a result was “not contrary to public policy.” In reaching that conclusion, the Court relied on the following grounds: 92] However, in the present case, the waiver has no bearing on public policy or statutory motor insurance. This exemption only concerns the plaintiff`s right to claim damages from the defendants caused by the defendant`s negligence.
The legislative system is invoked only when a plaintiff`s right to money as compensation for the harm suffered as a result of negligence has been established or settled. In my view, the applicant`s arguments do not give rise to a debate of public policy. It is my understanding that the decision will be appealed and I will write a follow-up note once the Court of Appeal has resolved this issue. However, assuming that this result is correct, it is a result that clearly calls for legislative intervention. While the law requires motorists to have liability insurance to ensure that those who have been injured by their negligence can resort to damages, the law should not allow derogations to apply to deprive innocent people of this legally required protection. While, of course, there is never any guarantee that a waiver will apply in a particular situation, organizations and their insurers should ensure that any waivers they use take into account the following: [44] The document, at first glance, does not appear to be a waiver. It seems to be a list. The attention of the person who is asked to sign it as a list would inevitably be drawn to the lines in the box for signatures and team information.
Although there was a red font above the field asking the person to “READ AND UNDERSTAND THE BACK OF THE PAGE BEFORE SIGNING”, there was no instruction or information about the evidence on this request from the trainer, who presented the attached document to a clipboard for being passed and signed by the team during the first training. The words “I accept the waiver” on the signature lines are so weak that they are almost undetectable. Unlike waivers deemed enforceable in the above cases, the waiver is not a separate sheet, and the waiver and signature are not on the same page. On the back of the form, the coach must inform the people on the list that they are fully responsible for any damage “caused by them”. This was not done, and the defendants took no steps to ensure that it was done. In addition to the cases archived on this website dealing with the waiver of liability for sports injury claims, the reasons for the decision were released this week by the Kamloops Registry of the Supreme Court of British Columbia, which discusses the effects of a waiver following a ski lift accident. In this week`s case (Morgan v. Sun Peaks Resort Corporation), the plaintiff “was preparing to load onto a ski lift at the ski resort owned by defendant Sun Peaks Resort Corporation when it fell. The approaching chairlift was not stopped in time and was run over by it. Prior to this incident, the applicant had signed a waiver of liability, which is common in ski resorts. It brought an action for damages for negligence and the defendant sought dismissal of the action on the basis of the force of the waiver.
Justice Griffin upheld the waiver and dismissed the lawsuit. The court justified the following reasons: [30] The press release describes the defendant and its directors, officers, employees, agents, contractors and representatives as “THE OPERATORS”. The section of the press release states that, in view of the fact that the operators accept the subscription application and authorise the use of their facilities and property, including the use of lifts, the undersigned party agrees as follows: 1. . .