Most of us have done it sign a waiver of liability, either for ourselves or our child. Often we do so at the time of registration or last-minute as we are about to get on the ride, ski, play hockey or enjoy other fun activities. Signing waivers for ourselves or our minor children seems to be a part of life these days, especially online.
So, if there is an injury, will the waiver prevent the injured participant from having any recourse, such as suing for damages arising from the injury?
The answer yes, the waiver, if properly worded, may be effective, but not always.
Levita v. Alan Crew et al., a recent decision of the Ontario Superior Court of Justice.
This hockey player was seriously injured by a body check in a no contact league, including a broken leg. The player had signed a waiver of liability when he had registered for the season.
The language of the waiver was fairly comprehensive and specifically-worded, including:
The risks and hazards of ice hockey include, but are not limited to, injuries from:
Collisions with the rink boards, hockey nets, and ice;
Being struck by hockey sticks and pucks;
Physical contact with other participants, resulting in injuries to the eyes, face, teeth, head and other parts of the body, bruises, sprains, cuts, scrapes, breaks, dislocations and spinal cord injuries which may render me permanently paralyzed
The Court held that neither the league nor the other player was liable. For the hitting player, the case largely turned on the evidence that was introduced specifically, there was conflicting evidence about, for example, the location of the puck at and before the body contact, how the other player hit the injured player and whether it was from behind (a penalized offence in hockey, of course) and if there was enough evidence to determine that the other player held a deliberate intention to injure the player.
With respect to the leagues liability, the Court did not believe there to be adequate evidence to demonstrate that the hitting player constituted a significant risk before the game in question. No evidence was established that the referees in the game were unqualified, ineffective or that the rules of play were not enforced during the game in question. In fact, the leagues rules, regulations and penalty system exceeded those recommended by the hockey governing body, the Canadian Hockey Association. Ultimately, the Court did not find that the league failed to create and maintain a safe and reasonable environment in which to play hockey and, therefore, was not negligent.
Because this evidence was conflicting, unclear and not sufficiently established by the injured player, the league and the hitting player were not held liable for damages.
Even if the evidence had been established by the injured player and the Court had found that the league was negligent in its duties owed to the injured player, the Court also concluded that the waiver signed by the injured player constituted a full and complete defence to the league.
Because of the specific language in the waiver, which the Court believed to be unambiguous as to the risks associated with the play of hockey, including because it specifically identified the risk and danger that was actually claimed by the injured player, the league would not have been liable, even if negligent.
Unfortunately for the injured player, failing to read a waiver for before signing it was not enough for him to escape the harsh effect of the waiver. The Court effectively determined that it is open and up to the participant to satisfy himself or herself about a waiver before signing the document, unless there are exceptional circumstances that should suggest otherwise.
This is not the first waiver case in Ontario involving a person injured in a recreational (or other) activity in Ontario. Effectively, each case had to be determined case-by-case basis and on the specific facts of that case.
However, this case, like cases before it, affirms the general law in Ontario that waivers will be effective generally, if properly worded and signed by a participant. A waiver containing clear and unambiguous language, specifically identifying the risks that are involved, will likely be a full defence to any claim by an injured participant, even if the waiver was not explained to the injured player.
The exception remains, of course, that if another participant exhibits a clear and deliberate intention to cause injury or harm to another participant, this will exceed the implied consent of the injured player to assume the inherent risks of the activity and avoid the effect of the waiver.
The message? Despite that it may be inconvenient and challenging at the time, particularly if there are children involved, and even though what appears to be legal jargon will surely be present, waivers should be read before participating in recreational and other activities.
Jason Ward WARDS PC LAWYERS
This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.