The year’s Winter Olympics are providing inspiration for participation in winter sports. Although winter sports help Canadians stay active and enjoy winter, they also involve risks of serious injury to participants and legal liability for teammates, coaches, organizers and facility owners.
Participants must take safety precautions, by wearing appropriate (and appropriately fastened) safety equipment and knowing their limits. Facilitators of sports, whether junior hockey coaches or ski resort owners, must also ensure safety measures are in place to reduce the risk of injury to participants and spectators.
The safety measures required for a sport depend on laws and guidelines established by sports organizations, common practices, and common sense. Court decisions on the standards expected of participants and facilitators of the sport in negligence cases also establish safety requirements.
Negligence law provides a legal basis for compensation for injuries unintentionally caused by another, including in the context of winter sports. However, not all persons who cause an injury are liable, and not all injuries are compensable in negligence.
A defendant is not liable in negligence if he or she did not have a legal obligation to exercise care towards the injured person (known as the “duty of care”), or he or she exercised the degree of caution of a reasonable person for the sport (known as the “standard of care”).
For example, in the recent British Columbia case Kennedy v. Coe, 2014 BCSC 120 (CanLII), it was alleged that the defendant’s delay in alerting the heli-skiing guide of his ski buddy’s disappearance (from falling in a tree well) caused his death. The defendant was not liable because he did not owe his ski buddy a duty of care. At the time of the accident, the men were not skiing as assigned buddies, and they were only required to ski with each other in accordance with the guide’s instructions.
A liability waiver may also preclude liability and recourse even for serious injuries and death. Sports organizers or facility owners often require participants to sign or accept a liability waiver to engage in the sport. Where the waiver is clearly marked and carefully worded, it creates a contract that takes away the participant’s right to sue the organizer or owner for injuries (even if it was signed but not read).
In Morgan v. Sun Peaks Resort Corporation, 2013 BCSC 1668 (CanLII), a skier fell while loading onto a chairlift and was run over by the chair. She suffered injuries, including dislocation of her hip. The court in Kamloops determined this past September that the waiver signed with the purchase of her ski pass was enforceable and relieved Sun Peaks from liability for her injuries.
While a waiver may preclude an adult from suing in negligence for injuries, it will not waive the right of a minor. The British Columbia Supreme Court has held that a waiver signed by a parent or guardian to contract out of negligence for an “infant” (anyone under the age of 19 in this context) is unenforceable.
Compensation may also be reduced by the extent an injured person contributes to their accident or injuries, for example, by failing to wear safety equipment. In Haley v. White Hills Resort Ltd., 1999 CanLII 13897 (NL SCTD) a ski resort was liable for a tobogganer’s injuries from sledding into a large hole, but the tobogganer was contributorily negligent for failing to survey the area and see the hazard warnings for the hole. The tobogganer’s compensation was reduced by 50%.
The occurrence of injuries and the potential lack of recourse should not dissuade Canadians from participating in healthy and enjoyable winter sports. However, participants must consider the inherent risks and take the necessary safety precautions, and facilitators must ensure a safe environment for everyone involved.
For more on liability waivers, check out our Risky Business: Do Waivers Offer Complete Immunity From Liability? article.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.