Riding the Waive: Court Clarifies Risks and Consequences of Signing a Waiver

Raman Johal
Case Studies

Jamieson v. Whistler Mountain Resort, 2017 BCSC 1001, is a reminder to those that operate and participant in dangerous activities that signing waivers has legal implications.

Dr. Jamieson was left in a wheelchair following a mountain biking accident at a park owned and operated by Whistler Mountain Resort (“Whistler”). He sued Whistler for damages for personal injury and Whistler relied on an agreement signed by Dr. Jamieson as proof that he had waived his legal rights to sue them for any injuries he suffered (the “Waiver”).

Dr. Jamieson argued that, even though he had signed the Waiver, it was invalid because Whistler:

  1. failed to adequately warn him of the severity of the risks involved in mountain biking, specifically that a spinal injury could occur while biking at a park; and
  2. violated consumer protection legislation by engaging in deceptive and/or unconscionable acts.

The main issues for the Court to decide was whether the Waiver was valid and enforceable and whether it adequately warned riders of the risks in using the park.

In deciding the validity of the Waiver, the Court relied on Karroll v Silver Star Mountain Resorts for the principle that, when dealing specifically with exclusion of liability releases, the party seeking to have the other party waive their liability [like Whistler was] must take reasonable steps to bring the exclusion of liability to the attention of the other party [like Dr. Jamieson]. However, there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the party signing of onerous terms or to ensure that s/he reads and understands them unless a reasonable person should have known that the party signing was not consenting to the terms in question. The Court also relied on the principle that where a party has signed a written agreement, it is immaterial that he has not read it and does not know its contents.

The Court dismissed Dr. Jamieson’s argument that Whistler’s duty to warn was required to be tailored to the gravity of the potential hazard and that the Waiver was invalid because it failed to alert patrons of spinal injuries. This principle applied in product liability cases and not in cases dealing with Waivers where the identification of specific risks is not generally required. The Court decided that it was not necessary for Whistler to mention specific risks of spinal injuries and it was enough if the Waiver was “broad in scope and effect” and include potentially every conceivable form of negligence by Whistler.

The content and presentation of the text on the Waiver was important, but so were the personal circumstances of Dr. Jamieson in the context of the accident. The Court noted that Dr. Jamieson was highly educated with two years of medical school at the time of the accident and that he had been involved in numerous athletic activities which required him to sign exclusion of liability releases prior to the accident. Also, the Waiver was written in bold and large text and pointed out that it affected the signatory’s legal rights. The Whistler staff also took reasonable steps taken to bring the Waiver to Dr. Jamieson’s attention. These things together strengthened the Court’s finding that Dr. Jamieson must have known the impact on his legal rights when he signed the Waiver.

Finally, the Court found that the risk of spinal injury was not high enough to warrant an exception to the general requirement that a party is not required to identify specific risks in the face of comprehensive exclusion of liability. The Waiver was comprehensive and excluded liability for any loss or injury no matter how it was caused. In the Court’s view the Waiver’s appearance, wording and presentation alerted riders to the risks Dr. Jamieson said should specifically have been pointed out.

This case should dispel the myth that you are not bound by a Waiver simply because you do not read it. This case should also be a warning to insurers to review their insured’s waivers of liability to make sure they are appropriately drafted and that the insured follows an clear risk management strategy when they are signed.