Waivers of Liability for Sporting and Recreational Injuries

Executive Summary

A. Introduction

This report deals with the use of written contractual waivers of liability by providers of sporting and recreational activities. Contractual waivers are usually required for consumers to participate in a wide variety of activities. This report recommends that there be limitations on the use of waivers of liability for personal injuries or death resulting from negligence in sporting and recreational activities.

B. An Overview of Waivers and Liability

Civil liability for providers of sporting and recreational activities for the personal injuries or death of consumers may arise under three regimes of legal responsibility: The Occupiers’ Liability Act, the tort of negligence or the law of contract. Usually, waivers are designed to negate the civil liability of providers of sporting and recreational activities for the personal injuries or death of consumers. This report reviews the potential bases of liability and the principles controlling the validity and scope of waivers of liability.

The Business Practices Act and The Consumer Protection Act contain sections that relate to the provision of commercial services including the providers of sporting and recreational activities and generally are aimed at protecting consumers from the consequences of unequal bargaining power and unfair business transactions.

This report reviews Canadian case law on personal injury and fatality claims made against providers of sporting and recreational activities that have been defended in full or in part by the use of a contractual waiver of liability. Providers and consumers are faced with a very uncertain regime of responsibility and the outcome depends upon the technicalities of waiver validity and interpretation and judicial discretion.

Critics of waivers of liability argue that there is much disparity of information, knowledge and understanding of the function of waivers, that waivers negate the accident prevention function of negligence law designed to encourage cost effective steps to protect the safety of persons and that waivers allocate the cost of negligent conduct not solely to the consumer but also to society at large through the provision of health care and disability services. Proponents of waivers of liability assert the freedom to contract, that there are sufficient consumer protection principles in contract law and legislation and that the unburdening of tort losses enables providers to offer sporting and recreational activities at a lower cost.

C. Other Jurisdictions

The Law Reform Commission of British Columbia is the only Canadian law reform agency to have issued a report respecting the role of waivers in sporting and recreational activities. Although the focus of their report was on alpine skiing, the Commission recommended that providers should be prevented from relying on waivers in respect of certain kinds of risks and certain classes of consumers, such as risks that are exclusively within the control of the operator/provider over which the consumer has no control.

In England, Wales and Northern Ireland the use of waivers in respect of liability for death or personal injury resulting from negligence is controlled by Part 1 of The Unfair Contract Terms Act 1977. Recently, there has been increased legislative protection for consumers in The Unfair Terms in Contacts Regulation 1999, which applies to some unfair terms in contracts between a seller or a supplier and a consumer and The Consumer Protection from Unfair Trading Regulation 2008, which applies to some unfair commercial practices.

D. Options for Reform

The Commission considered various options for reform of the law relating to waivers of liability for sporting and recreational injuries ranging from greater judicial control of waivers to preventing providers from relying on some or all waivers of liability.

The Commission has recommended that the use of waivers of liability be prohibited and believes that this would enhance consumer protection in Manitoba. The Commission has provided an alternative recommendation that would partially limit the use of waivers of liability and render them ineffective unless they are fair and reasonable in the circumstances. The Commission makes several recommendations for the circumstances to be considered when determining the fairness and reasonableness of waivers of liability, including the representations made to the consumer at the time a waiver of liability is obtained, the steps taken to bring a waiver of liability to the attention of the consumer, the hazard causing the personal injury or death and the relationship between the activity provider and the consumer.

The Commission believes that providers of sporting and recreational activities should be able to obtain an acknowledgment and assumption of inherent risk from consumers. The Commission suggests that this can be accomplished without obtaining a waiver of liability for personal injury or death resulting from negligence.

The Commission makes recommendations regarding the enactment of new legislation and suggests that in conjunction with the implementation of new legislation, public awareness initiatives be conducted respecting the rights and remedies of consumers.

Report #120,
January, 2009