What Does Your Liability Waiver Actually Cover? - Slater Vecchio

What Does Your Liability Waiver Actually Cover?

Signing a waiver of liability before participating in a recreational activity means you give up your right to sue if you are injured. Simple, right?

Not exactly.

Last year, I commented on B.C. Supreme Court Case Niedermeyer v. Charlton. In the case, Ms. Niedermeyer signs up for a zip-lining adventure with ZipTrek Ecotours in Whistler, B.C.

The participants travel to the zip-line site in a bus operated by ZipTrek Ecotours. They finish their zip-lining activities with no problems. But on the ride back down the mountain, the bus travels off a gravel road and tumbles down an embankment. Ms. Niedermeyer fractures her neck, ribs and vertebrae in the accident.

Mr. Charlton, the ZipTrek employee driving the bus, admits fault. But the Court decides against Ms. Niedermeyer because she signed a release and liability waiver before embarking on the adventure. The contract specifies that Ziptrek Ecotours will not be held responsible for accidents occurring “to and from the tour areas.” The Judge says Ms. Niedermeyer “surrendered” her right to recover damages by signing the waiver and release.

But now the B.C. Court of Appeal has overturned the original decision. In a two-to-one decision, the Appeal Judges say the waiver and release should be set aside in favour of public policy.

Public Policy Ensures Universal Compulsory Vehicle Insurance

In B.C., there is a public policy set up to ensure that anyone injured in a motor vehicle accident is covered by Universal Compulsory Vehicle Insurance. So because Ms. Niedermeyer was injured while travelling on the bus, she must be covered by the driver’s insurance coverage, administered by ICBC.

If the accident occurred while zip-lining, the signed waiver and release would have cleared Ziptrek Ecotours of liability.

Madam Justice Garson in the Court of Appeal says the ICBC “regime” is designed to protect the public, and that it would be against public policy and human rights legislation to allow private parties (like Ziptrek Ecotours) to contract out of such a regime.

The appeal is allowed and the case is sent back to the Supreme Court to determine appropriate compensation for Ms. Niedermeyer’s injuries.

Saro Turner

Saro Turner

Saro joined Slater Vecchio LLP in June 2009. In addition to compensation for pain and suffering, he has obtained compensation for past and future loss of income, health care expenses and more.