Birss v Tien Lung Taekwon-Do Club

2. LIABILITY ISSUES

   1. The Master allowed a claim for a sports injury to be amended to add breach of fiduciary duty as a cause of action in the teacher-student situation, and held that while sports participants are taken to consent to the risks inherent in the sport, there are exceptions, including with respect to intentionally injurious conduct.

   Birss v Tien Lung Taekwon-Do Club, 2017 ABQB 518, per Master L.A. Smart

1. FACTS AND ISSUES

   The Plaintiff, Birss, suffered a subdural hematoma after taking part in a black belt test organized and run by the Defendants/Applicants, Tien Lung Taekwon-Do Club and Authentic South Side Taekwon-Do Club.

   In September 2007 (the "September Agreement") Birss signed up for a trial taekown-do membership, which included a two-page membership agreement that contained a waiver of liability in the following terms:

   THE MEMBER/PARENT/GUARDIAN agrees to undertake sole responsibility in attending the facilities of Tien Lung. . . . The Member/Parent/Guardian agrees to hold Tien Lung, its officers, agents and employees harmless from any claim, liability or demand of any kind or on account of personal injury, property damage or loss of any kind, in whole or in part, upon the members/guests claim that he or she had not agreed to assume the risks specified above. . . . I understand and agree that the school will not be held liable for injuries, damages, etc. not caused by or resulting from the negligence of the owners, operators, employees or persons in charge of such establishment.

   After his trial membership Birss signed up for a full membership in November 2007 (the "November Agreement"), which included a different liability waiver, on a page with the heading: "Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement. By signing this document you will waive certain legal rights, including the right to sue. Please read carefully!". The November Agreement provided as follows:

   I am aware that activities in any way relating to Taekwon-Do, including Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition ("Taekwon-Do Activities") involves many RISKS AND DANGERS. I understand and acknowledge that known and unknown risks and dangers associated with my/my child's participation in Taekwon-Do Activities may result in personal injury, death, property damage or loss. I understand as well that personal injury, death, property damage or loss may be caused or contributed to by the NEGLIGENCE OR CARELESSNESS of myself/my child or others.

   In consideration of T.L. Taekwon-Do Development Ltd., Tien Lung Taekwon-Do Club, Terrence Joseph Wisniewski, Kari Leah Wisniewski, Authentic South Side Taekwon-Do Club, Diversified Health Lifestyles Systems Ltd., Marc Douglas Gaudet, Evelyn Lisa Charlotte Gaudet and any of their officers, directors, employees, contractors, sub-contractors, volunteers or agents (the "Taekwon-Do Entities") allowing my/my child's participation in all activities in any way relating to Taekwon-Do, including without limitation, Taekwon-Do instruction, observation, training, exercising, travel, demonstrations, camps, seminars, social activities, exhibitions, matches and competition ("Taekwon-Do Activities"), I agree, on behalf of myself, my heirs, assigns, personal representatives and next-of-kin, that:

   I ASSUME AND ACCEPT, WITHOUT...