Waivers are commonly signed before the start of athletic activities and other recreational services such as high ropes, amusement parks, or retreats. Often, however, participants still successfully claim for compensation as a result of injury or damages. This often happens when an injury occurs on the premises, and a person was not made aware of the terms of a waiver in a timely, clear, or easily accessible manner. Courts recognize that contracts are notoriously difficult to understand, and, as a result, legal precedent has begun and continues to make provision for damages to or liability of anyone who signs a waiver.
Precedent shows that claimants are, in many cases, eligible for damages despite having signed a standard waiver. Standard features that make a valid waiver include: it must be clearly written, have unambiguous language that can be easily understood by the average person, it must direct the signing party’s attention to any unusual or exceptional provisions in the contract and the participant must be aware of the extent of the provisions. Not only should the language be carefully chosen, the manner in which this waiver is presented to participants is also important.
A waiver can contain any relevant information the company wishes, although long and unusually burdensome or limiting conditions may weaken the enforceability of the waiver if they are not clearly written. Conditions should not be buried in fine print, excessive punctuations, or unduly convoluted language. This is especially true if a company or organization is really trying to cover all their possible liability points because the activity involves elevated risk. In such cases, terms must be clearly brought to the attention of the signing party, both in the way it is written and before the transaction takes place.
Such an omission on the part of a company was demonstrated to be liable in Apps v. Grouse Mountain. In this case, the appellant had been injured while using the Terrain Park on the slopes of Grouse Mountain. He successfully appealed the court’s previous decision that Grouse Mountain had sufficiently disclosed their own exclusion from liability and was able to claim damages. Determining factors in the success of this appeal include: 1) warning signage on the hill placed so as not to invite the attention of customers, and 2) the judges found that even though the waiver specifically mentioned negligence on the part of Grouse Mountain, “that reference was buried in a difficult-to-read section, among colons and semicolons, with no attempt to highlight it or emphasize it in any way. The judge contrasted the waiver with Grouse Mountain’s season pass contract form, which “begins with a yellow box outlined in red indicating that it is a release of liability, waiver of claims, assumption of risk . . . the specific waiver clause is then again placed in a yellow box outlined in red, and the own negligence clause is in capital letters”. It is important for an organization wishing to avoid liability to clearly indicate so-called onerous clauses placing a heavier burden on the customer by means of accessible language and convenient, obvious indicators. This should be done consistently in all waiver signage and forms that a company uses.
If you want to limit the liability you face in your business, email us at info@law365.ca or call us at (647)-494-9599.
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