By Fran Zinger, Senior Partner at CAM LLP
There are certain firmly held myths in society when it comes to some legal concepts – I can easily get out of a rental lease, I won’t be bound by my non-compete clause, and I won’t be held to the waiver I signed to go white water rafting, skydiving, zip-lining, horseback riding, or [insert exciting summer adventure of your choice here]. Whether these myths come from TV, movies, or well-meaning friends or family members, the reality is that in many cases you cannot break the lease, you will be held to your non-compete clause and you may well be prevented from suing for damages if you are injured during an adventure activity by the waiver that you signed voluntarily.
Waivers remind me of a case of a fellow lawyer early in my career as a personal injury lawyer. A father decided to take his “tween” age children, a girl age 10 and a boy age 12, white water rafting on a river in the Rocky Mountains. It was early spring and the river was swollen and running very high with the melting of the mountain snow caps. The waters were raging and the father tragically drowned when he was caught by an outcropping branch. To make matters worse, the fatal accident occurred in front of his terrified children. His widow wanted to sue the rafting company for damages for the loss of her husband and the children’s loss of their father, but he had signed a waiver just before the trip. A staff member of the rafting company had gathered the potential rafters around in a group before the trip, explained the waiver to them and had gone over the waiver clause by clause, before they were asked to sign. The fact that it was a waiver of legal rights was written prominently in red ink and capital letters on the one page document. The waiver was found to be binding and there was nothing that could be legally done for the widow to claim damages against the rafting company.
Few people are aware that the safety features of an adventure company remain relatively unregulated in Canada, which heightens the concern. There may be voluntary guidelines that companies adhere to and an industry sponsored overseeing body, but little further control over safety protocols.
Are Waivers Always Binding?
Are there circumstances in which a waiver will not be binding? Certainly. But not nearly as often as you would think. Some circumstances might include:
- The adventure company shoved the waiver in front of you at the last minute, and asked for a signature.
- You were given no real time to read the document.
- The waiver was written in a language you did not understand, as may be the case while you are travelling abroad.
- The terms of the waiver were not reviewed and explained by the adventure company staff.
- The waiver was on a document attached to a clipboard, and passed among the group for a group signature.
- The waiver was included in a multi-page document, with no prominent warning, for example in red ink, that you were waiving your legal right to sue.
- You were obviously impaired with alcohol or otherwise when asked to sign the waiver.
- There was a legitimate reason why you were mistaken about the terms of the document.
I have given this matter a great deal of thought in an in-depth article on waivers, which you can read HERE
Key Take Aways
The bottom line is – be careful. Waivers are usually held to be binding, and if tragedy strikes you may suffer great losses, without recourse.
If you or a loved one has suffered tragedy or personal loss related to an adventure holiday or sporting pursuit don’t assume you cannot recover if you have signed a waiver. In addition to the situations raised above, there are many circumstances in which an adventure company can be held liable for your losses because they had a duty of care to adventure participants. For example, their responsibilities may include:
- Preventing crowding and collisions,
- Using efficient supervision and control,
- Giving necessary instructions and warnings,
- Selecting and fitting proper and suitable equipment, and
- Taking reasonable precautions to see that conditions for the activity are not unduly hazardous.
If you have questions about an injury or loss sustained during a holiday or sporting activity, Contact Us for a free consultation. We’ll review your situation and help you assess your options.