Waivers And "Own Negligence" Clauses ' Court Of Appeal Clarifies Legal Test

• Published date: 06 May 2020
• Author: Ryan Shaw
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Richards Buell Sutton LLP

Most, if not all, businesses which offer risky recreational activities to customers utilize some form of exclusion of liability clause or waiver to attempt to prevent customers from suing the operation in the event they are injured while participating in the activity. Many of those waivers attempt to exclude the operator's liability even for its own negligence.

In the recent decision of Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, the BC Court of Appeal clarified the circumstances in which such waivers will be considered operable. The case should serve as a reminder to insurers and insureds to review the procedures insureds have in place regarding such waivers to ensure the waiver can be relied on if and when it is needed.

THE FACTS

In the fall of 2015, Mr. Apps moved from Australia to Whistler to live, work, and snowboard. Mr. Apps was an experienced snowboarder and bought a season's pass for Whistler Blackcomb. In March 2016, Mr. Apps and some friends bought lift tickets to go snowboarding for the day at Grouse Mountain ("Grouse").

Above the Grouse ticket booth where Mr. Apps bought his ticket was a poster containing the terms of a liability waiver, which included an exclusion of liability for Grouse's own negligence. The waiver was also replicated on the back of the ticket that Mr. Apps received after he paid for it. In addition, a sign was posted inside the terrain park, not visible from the ticket booth, which warned of the risks of using the terrain park and included a reference to the exclusion of liability clause on the back of the ticket. Mr. Apps went to the terrain park, proceeded off an "XL" jump, and suffered catastrophic injuries that left him a quadriplegic. He subsequently brought a civil action against Grouse for the alleged poor design, construction, and maintenance of the "XL" jump.

Grouse defended the claim on the basis that the waiver of liability constituted a complete defence and brought a summary application to dismiss the action.

THE RULING

The trial judge found that Grouse had taken reasonable steps to ensure Mr. Apps knew that in purchasing the lift ticket he was agreeing to waive his right to sue Grouse even for Grouse's "own negligence". She also found that the warning at the ticket booth and back of the ticket, combined with the warning inside the terrain park, was reasonable notice in the circumstances. The trial judge also considered Mr. Apps' experience with signed waivers as a season's pass holder at Whistler...