In a Dramatic turn-a-round, on April 30, 2014, the BC Court of Appeal has overturned this wrongly decided waiver of personal injury case (Niedermeyer v. Charlton,2014 BCCA 165). Therefore the following principles no longer apply, unless changed by the Supreme Court of Canada or by statute.
As of Signing a release and waiver of liability before engaging in risky activity like zip lining is more than just a formality as this zip line personal injury claimant(Niedermeyer v. Charlton,2012 BCSC 1668) found out.
The claimant teacher arranged to take her students on some outdoor recreational activities including a zip lining experience. The injury claimant and her students were returning from the zip line to the Whistler Blackcomb village when their bus went off the road, overturned, and fell down a hill. The claimant suffered significant orthopedic injuries and sued the zip line company for personal injuries.
The claimant’s main argument was that a car accident caused by the negligence of a Zip lining employee would not have been contemplated by the claimant at the time she signed the Release. She also argued that victims of motor vehicle accidents in BC benefit from the universal insurance scheme, ICBC, that guarantees compensation for injuries caused by negligent drivers and car owners so the waiver could not and would not apply.
The Judge disagreed, finding that the travel to and from the zip line would have been in the contemplation of a reasonable person who had read the Release. The Release was also a clear and was incorporated onto a single page highlighted with warnings that it was an important document. As the Judge stated,
“I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.”
Issue: Should zip line companies be allowed to have customers sign waivers to release them from being responsible for negligent operation of a motor vehicle?
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
