Sport waivers under scrutiny after court decision 

Whistler waiver withstands test by severely injured mountain biker

click to enlarge PHOTO BY CHANTAL DE BRUIJNE / SHUTTERSTOCK.COM

If you sign a waiver then get hurt, you may be unable to sue for compensation.

That is among the lessons in a recent B.C. Supreme Court ruling that determined the release Blake Jamieson signed before biking in the downhill park of Whistler Blackcomb (WB) in 2009 barred him from suing WB over an accident that left him in a wheelchair.

Jamieson, who earned a degree in radiology at the University of B.C. since the fall, claimed in his suit that WB "failed to warn him of the risks involved" in riding in the bike park, and he sought compensation for his injuries.

He later claimed he was rushed through the signature process because he was in a lineup of people. He said he didn't know he had signed a waiver and nothing in the ticket alerted him that biking at the park carried a high risk of serious injury.

Jamieson was a competent rider capable of hitting double black-diamond trails and for three years had been a volunteer patroller at the bike park before he took on the A-Line Trail on Aug. 28, 2009, according to Madame Justice Neena Sharma's ruling.

Said Jamieson: "I had no idea that a spinal-cord injury was possible and specifically that going over the handlebars was a common mechanism of injury."

But that is exactly what patrollers on the scene thought had happened when they arrived at the scene of Jamieson's crash.

Patrollers testified that Jamieson said he had tried to "pre-jump" the drop — an expert manoeuvre used to shave time off a run.

In her ruling, Sharma found Whistler Blackcomb's warnings of risk were reasonable and that someone who signed WB's release would understand they were waiving their right to sue.

" ... The Release is comprehensive, clear and blunt," Sharma wrote. "I do not see how any adult with basic reading skills could reasonably believe he or she retained the right to sue Whistler if they were injured using the park, even if Whistler was negligent."

For Scott Stanley, lead counsel for Jamieson, waivers remove the legal incentive for companies to protect customers.

"Essentially anyone who has signed a waiver for any activity in B.C. should operate on the assumptions that they have no legal recourse against the provider even if their conduct is egregious," he said in a written statement.

He believes many people don't realize the strength or scope of waivers. He wants to see the government enact a series of recommendations from a 1994 report by the since-discontinued Law Reform Commission of B.C. that would limit releases in some key ways.

Companies argue such waivers are necessary to prevent unlimited exposure to liability that would cause insurance costs to skyrocket or even force some operations to shut down, according to the Commission report. The attorney general had requested the report, which included 24 recommendations.

States the report: "The concern about public safety arises because comprehensive waivers protect operators not only against frivolous claims, but also from legal responsibility for their own negligence and that of their employees. With potential liability greatly reduced or eliminated, an operator may be slower to correct a dangerous situation or make needed safety improvements, particularly if it involves significant cost."

The government did not enact the recommendations at the time.

But Robert Kennedy, counsel for WB, noted that releases are unenforceable for minors, which acts as "a huge incentive" to keep the premises safe.

And minor or not, "we would far prefer that no one be injured doing anything," he said in an interview.

Head to www.theprovince.com for more on this story.

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