Chapter 7: The Law Of Adventure Tourism PDF

# Chapter 7: The Law of Adventure Tourism ## Learning Objectives - Notable tortious risks and the application of the law in the adventure tourism sector. - Notable contract issues and the application of the law in the adventure tourism sector. ## Chapter Outline - Introduction - Negligence - Wa...

# Chapter 7: The Law of Adventure Tourism ## Learning Objectives - Notable tortious risks and the application of the law in the adventure tourism sector. - Notable contract issues and the application of the law in the adventure tourism sector. ## Chapter Outline - Introduction - Negligence - Waivers - Questions for Review and Discussion - Key Terms - Notes and References - Appendix 7.1: Waiver for Sea Kayaking Company - Appendix 7.2: Waiver for Ski-Hill Operation ## Part 3: Risks and Responsibilities ### Introduction Chapters 2 to 4 introduced the application of torts and contract law in the hospitality and tourism sectors. This chapter dives into the deep end of negligence and waivers in adventure tourism. These are the two areas of law that are of primary concern to this industry. Estimates indicate that there are approximately 2200 adventure tourism operators in British Columbia and that they generate more than $2 billion in annual income. Adventure tourism is a commercialized adventure activity that exposes participants to risk and challenges that require them to be physically engaged with the activity in a natural environment. Activities range from whitewater rafting to wildlife viewing, from heli-skiing to hiking, and many things in between. A unique feature of adventure tourism is that the nature of the tourism experience being sought is risk. Risk, in the context of adventure tourism, represents the possibility of losing something of value. The thing people value most is their life; nobody wants to die. Risk, then, is the potential for loss or harm, and it extends to physical, mental, or emotional injury, as well as property loss. Risk, of course, has both positive and negative elements to it. People choose to purchase and participate in adventure tourism activities for many reasons, but at or near the top of the list is the adrenalin rush it provides. It gives people the feeling that they could have died or been hurt-and indeed the stories shared afterwards often highlight hazards in a manner not dissimilar to fishing stories about the size of the one that got away-but, of course, without actually believing that they could have been seriously injured. This is the junction where negligence and waivers come into conflict with commercialized adventure. Nobody thinks they will get hurt or killed during an adventure tourism activity. Many clients expect tourism operators and their guides to take sufficient care to ensure that people are not put in harm's way. This is the paradox of adventure tourism. An integral part of adventure is the risk that is inherent to an activity-that is, the element that cannot be eliminated without changing the very nature of the activity itself. Adventure tourism operators seek to manage, minimize, and mitigate the amount of risk involved in these activities. When there is an incident and a person is injured, the extent to which the risk was managed will come under scrutiny. This is where a claim of negligence will arise. A second paradox of adventure tourism is that people sign up for such activities with the belief that the operator and guide will take care of them and prevent them from getting hurt, but the waiver or release that they often sign includes language that waives their right to sue, even in instances when the business fails to take reasonable care for their well-being. The effect of the waiver is that the operator and guide do not owe the participant a duty of care. So, on the one hand, one of the motivations to participate is the belief that the guide will take care of participants so they don't get hurt, but on the other is a requirement not to sue if the guide fails in his or her duty to take care of them. It is therefore not surprising that cases in adventure tourism are contested on two grounds: whether the guide was negligent by failing to take reasonable care in the circumstances, and whether the waiver is binding. ### Negligence Adventure tourism businesses are most vulnerable to lawsuits from clients who are injured and claim that their guides or instructors were negligent. Negligence refers to conduct that involves a failure to act with the reasonable care that would ordinarily be expected in the circumstances. The injured complainant must show that there was a duty owed by the guide requiring conformity to a standard of care, that the conduct breached the required standard of care arising from a foreseeable and unreasonable risk of harm, and that the conduct was a proximate cause of the harm suffered. As the Supreme Court of Canada held in Jordan House Ltd v Menow," "The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another it is relevant to relate the probability and the gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measure." The tension between torts and adventure tourism arises from the fact that sometimes there's nothing reasonable about adventure and that risk is omnipresent. It's been said, especially by non-adventurers, for example, that reasonable people don't jump out of perfectly good airplanes or climb mountain faces using a 10 mm rope as a lifeline! Given that risk is an inherent part of adventure (and indeed a motivating factor for people to do it) and that the premise of adventure tourism is based on people being purposefully situated in environments where they could get hurt (e.g., falling while climbing, drowning while rafting, being avalanched while heli-skiing), for a guide to be negligent they must not only be careless but expose the claimant to unreasonable risk. In the case of Isildar v Rideau Diving Supply, in which a student in an advanced open water scuba-diving course drowned, the Court looked at the standard of care owed by an instructor and whether the waiver exonerated the company. After having completed both a night dive and a wreck dive in the St Lawrence River, Ali Isildar and the other students plus the two instructors went to another site the next morning to complete their deep dive. The plan was to descend to approximately 26 metres, perform a task, and then ascend to the surface. The group encountered silty conditions at the bottom and became separated. Isildar panicked and drowned. The Court found that Isildar was 15 percent contributorily negligent for swimming away from his buddy and therefore failing to adhere to the buddy system that he was obliged to respect pursuant to the Standard Safe Diving Practices Statement of Understanding. With respect to the standard of care owed by the defendant instructor, the Court observed that those who act in accordance with the general practice of their trade or profession in this case, the Professional Association of Dive Instructors (PADI)-may be exonerated from civil liability but that compliance with industry practice does not preclude a finding of negligence, nor is it decisive. As the Supreme Court of Canada noted in Roberge v Bolduc," "The fact that a professional followed the common professional practice at the relevant time is not sufficient to avoid liability. Such practice must be demonstrably reasonable. Accordingly, when a professional adheres to a common professional practice which does not accord with the general standards of liability, i.e., that one must act in a reasonable and diligent manner, he can be found liable, depending on the facts of each case ..." The Court in Isildar paid close attention to the PADI standards, appreciating that the standard of care owed must be informed by the industry standards contained in the PADI Advanced Open Water Manual and the extent to which the instructor met those standards. It is interesting to note that the Court also found that the defendant company unreasonably laid blind faith in the PADI program without putting safeguards in place. The Court found that the defendant instructor was negligent for failing to provide an adequate dive plan or briefing to the students, failing to properly communicate the conditions to be encountered, pairing Isildar with an inexperienced dive partner, and failing to plan sufficiently for an emergency. Despite finding the dive shop and instructor negligent, the Court enforced the waiver. The extent of the duty owed by a guide in such circumstances was tested in the heli-skiing case of Scurfield v Cariboo Helicopter Skiing Ltd.10 In Scurfield, two heli-skiers were killed in an avalanche. At trial, the Court found Scurfield 75 percent at fault and the defendant guide and heli-skiing company 25 percent at fault. Scurfield was negligent because he had failed to heed the guide's instructions to cross the avalanche slope once signalled by the guide, to start only after the skier ahead had reached the other side, and to "ski alert."11 The guide and heli-skiing company were negligent for taking Scurfield to that slope because the avalanche risk that day was rated high and the slope in question was considered unsuitable under such conditions. This finding was overturned on appeal, however, with the guide and heli-skiing company not being liable at all and Scurfield being 100 percent contributorily negligent. Central to the judgment was the extent to which in the circumstances the guide owed a duty of care: It is not contended that the defendants had a duty to ensure that their guests were kept away from all places where avalanches could occur in the context of helicopter skiing that would be impossible. I think it correct to say that the duty of care which lay on the defendants was not to expose their guests to risks regarded in the business as unreasonably high, whether from avalanche or any other hazard to which participants in the sport are normally exposed. To enjoy the excitement of skiing in mountain wilderness areas participants are necessarily exposed both to risks which the careful skier is able to avoid and certain risks also which such skiers may be unable to avoid, including some risk of being caught in an inescapable avalanche. 12 In sum, if skiers want a zero percent chance of being caught in an avalanche, they should ski in Saskatchewan where the avalanche rescue team proudly proclaims, "Zero avalanches and counting."13 Avalanches are inherent to heli-skiing, and the extent of a guide's duty is not to expose guests to risks regarded in the business as being unreasonably high. The standard to which an instructor is held was looked at in Roumanis v Mt Washington Ski Resort Ltd. 14 The plaintiff signed up for a week-long series of ski lessons and, on his very first lesson, fell and injured his knee while executing a turn at slow speed. He claimed that his fall and injury were caused by the negligence of his ski instructor, alleging that she took him into terrain where the snow conditions were beyond his capabilities and that she did not give him proper instruction. The Court found that the ski instructor was under a duty to exercise the skill and judgment of an ordinary, competent ski instructor and not to expose Roumanis to an unreasonable risk, and that the very nature of skiing carries inherent risks that skiers must be assumed to have accepted, including the type of fall and injury that was suffered. Sometimes claimants allege not only that their guide or instructor was negligent, but grossly negligent. This is because it's possible for a claim in negligence to be defeated by a waiver. A waiver is not a defense against gross negligence. In Braid v Whistler River Adventures Ltd, 15 Marjorie Braid drowned when the raft she was in collided with a log, throwing her from the raft and trapping her beneath the log. Her husband sued the rafting company alleging that the defendant was grossly negligent because the log which killed Braid was only there after it had been cut upstream by an employee of the rafting company, following which the log got lodged in the river. The defendant deemed the log to be hazardous but not a significant enough hazard to remove from the gravel bed. Had the decision been made to remove the log, it would have taken four of the defendant's employees half a day to do so. The Court characterized gross negligence as conduct in which, if there is not conscious wrongdoing, there is a very marked departure from the standards by which responsible and competent people habitually govern themselves. No doubt weighing the gravity of injury against the burden that would be imposed by removing the log, the Court dismissed the defendant's application for a summary trial, and the case was permitted to proceed to trial where it was eventually settled out of Court. Often when someone is hurt, particularly under the care of another, people will look for someone to blame and sue in search of damages. This is amplified when the injury sustained is severe, as in quadriplegia, when someone is killed, or when there is a mass casualty incident. This is what happened when nine heli-skiers were killed in the notorious Bay Street avalanche in 1991. The trial for Ochoa v Canadian Mountain Holidays Inc16 lasted 90 days, and six expert witnesses, including a professor of geophysics, were called to try to make sense of avalanche science. The trial cost an estimated $7 million and took on the tone of a Royal Commission. Indeed, the future of the heli-ski industry specifically and the adventure industry generally was at stake. In Ochoa, the widow of one of the people killed sued the guide and heli-skiing company, claiming it was negligent to be on the run called Bay Street on that particular day. It was alleged that it should have been obvious to a competent heli-ski guide that the potential existed for deep slab instability in the snowpack and that, given the terrain features of the run, no guests should have been taken there unless snow stability tests were completed to adequately test deep layers for instability. It is clear that the accident occurred because a mistake was made in the assessment of the stability of a slope in relation to avalanche risk. The main issue the Court had to wrestle with is this: was that mistake the result of an error in judgment or skill, or both, which fell below a reasonable standard of care in the avalanche forecasting profession? The Court said that what constitutes an unreasonably high risk must be determined from the perspective of a reasonably competent heli-ski guide. In the end, even though the slope did slide, the Court found there was not a breach of the required standard of care of a professional heli-ski guide and that it wasn't reckless, dangerous, or even a marked departure from standard operating procedure not to dig a pit before attempting the run. Consequently, the guide and heli-skiing company were found not to be negligent. Had there been a finding of negligence in Ochoa, however, the waiver would have exonerated the defendants of liability anyway. ### Waivers As noted in Chapter 4, the liability of hospitality and tourism providers extends beyond the condition of their premises not only to activities on the premises but also to the conduct of third parties on the premises. This is particularly relevant in adventure tourism in that it considers or contemplates others who are involved in the adventure enterprise. This includes other clients or people who may share the terrain, such as mountain bikers on a terrain park or skiers and snowboarders on an alpine ski hill. Chapters 3 and 4 outlined the conditions under which a contract is fulfilled and when a contract, which in this instance would include a waiver, will not be upheld by a court. Adventure tourism can create conditions in which proper administration of a waiver is strained. Businesses like whitewater rafting or zipline operators that rely on drop-in traffic where customers effectively sign up at the last minute are sometimes accused of not allowing its customers to calmly and dispassionately contemplate the contents of the waiver, instead pressuring or coercing them to sign it which has the effect of invalidating the wavier. This argument was unsuccessfully but persuasively used in Delaney v Cascade River Holidays Ltd.17 Dr Fergus Delaney, an Ontario veterinarian, was in British Columbia on a business trip in 1979 and joined a friend who had already agreed to go on a whitewater rafting adventure down the Fraser River. Because the raft was not full, Delaney's name was added to the passenger list. He paid the $100 fee and signed the waiver in the parking lot at the start of the day while Cascade's van was being loaded with gear and passengers, and T-shirts were being distributed. The trip ended in tragedy with the drowning of Delaney and two other passengers. On appeal, Nemetz CJBC dissented, saying that there "can be no presumption of advance knowledge of a disclaimer of responsibility"18 and that the releases were signed in a hurried, informal, and perfunctory manner. The absence of formality, a requirement the Courts in L'Estrange v F Graucob Ltd¹ and Tilden Rent-A-Car Co v Clendenning20 said was important, was so pronounced that T-shirts were being given away at the same time as people were signing the release. He found that the contract to go whitewater rafting was made before the waiver was signed and that since the making of the contract and the release were not contemporaneous, the waiver was invalid. Citing Dubin JA in Tilden, in his dissent Nemetz CJBC effectively said that where there is a full opportunity to consider the contract terms but where it is done in a hurried and informal manner it is apparent that it does not represent the true intention of the signer and that the signer is unaware of the stringent and onerous provisions so the transaction is tantamount to fraud or misrepresentation. Nemetz CJBC also had concerns about the language used in the release. He noted that "the language of the release is misleading," that "use of the adjective 'standard' would tend to induce a sense of security" in the signers, and that the "clause speaks generally of 'loss or damage' but does not mention the risk of personal injury or death."21 Nemetz CJBC further said that the release contained provisions so onerous and unusual that it was the duty of Cascade to see that the provisions were "effectively called to the attention of the other party under the penalty of their being held non-binding on the latter party."22 On the matter of the release, however, McFarlane JA (Taggart JA, concurring) said that Delaney paid his money on the morning at or about the time the release was signed and that it would be unreasonable to conclude that he did not have actual or imputed knowledge at the time he paid his fee and received a ride ticket that a liability waiver would be required before embarkation. The majority held that the argument of "past consideration"23 must fail saying that "I think [the release] must be interpreted and understood, having regard to the whole purpose of the relationship between [Delaney] and [Cascade]. That purpose ... was to engage in what must have been intended to be an exciting and thrilling challenge of the power of the Fraser River in the canyon. [T]here is no doubt of the intent involved in the language of the release. "24 The Court thus held that the consideration Delaney received for signing the release was being allowed to participate in the whitewater rafting trip. Notwithstanding the dissent of Nemetz CJBC, the judgment in Delaney reminds adventure tourism operators of the importance of using clear and concise language. Operators should also give as much advance notice as possible to customers of the requirement that a waiver needs to be signed as a condition of participation-to the extent that operators have customers sign the waiver before payment (though some judges prefer to characterize it as one continuous transaction, thereby negating the significance of the timing of the waiver). In addition, operators should take measures to call to the attention of customers what it is they're about to sign to ensure they are under no misapprehensions about the effect of the release on liability and waiver of claims. The inflatable tube race in Crocker v Sundance Northwest Resorts Ltd, 25 previously mentioned in Chapter 4, not only dealt with Sundance's positive duty to take reasonable steps in light of the likely and foreseeable risk of harm to prevent a visibly intoxicated person from competing in its dangerous tubing competition, but the fact that the waiver was not working as well. The waiver clause was in the competition's entry form rather than a stand-alone document; it was administered in a bar where Crocker had been drinking; and the clause was not sufficiently drawn to his attention, so he didn't read it. Crocker could not have possibly voluntarily assumed either the physical risks or legal risk involved in competing, given that his mind was clouded by alcohol at the time of signing. The 1988 ski racing case of Karroll v Silver Star Mountain Resorts Ltd 26 arose after the plaintiff sustained a broken leg when she collided with another skier while competing in a downhill ski race. The Court wrestled with foundational and conflicting principles of contract law. To be clear, it is a principle of general contract law that where a party signs a document which the party knows affects his or her legal right, the party is bound by the document in the absence of fraud or misrepresentation, even though the party may not have read or understood it. It matters less that the person signing the waiver has not read it than that its terms were brought to that person's attention. McLachlin CJSC (as she then was) asked, "How is the general contractual principle that a party signing a legal document is bound by its terms despite not having read them, to be reconciled with a requirement that a party presenting a document for signature must take reasonable steps to bring them to the signing party's attention?"27 The key, McLachlin CJSC said, is not only recognition of the limited applicability of the rule that the party administering the waiver must take reasonable steps to bring it to the other party's attention, but that where the party seeking to enforce the document knew or had reason to know of the other's mistake as to its terms, those terms should not be enforced. McLachlin CJSC added that the "effect of the exclusion clause in relation to the nature of the contract is important because if it runs contrary to the party's normal expectations it is fair to assume that he does not intend to be bound by the term."28 In Karroll, McLachlin CJSC determined that the plaintiff knew she was signing a document that affected her legal rights and found in favour of the defendant ski hill. A release of liability and waiver of claims should be written in a separate, stand-alone document rather than buried in, or combined with, registration forms, entry forms, equipment rental forms, media release forms, etc. A person signing a document that he or she believes is a registration, entry, or rental form does not expect to be signing a waiver. The Court found that in such instances that person cannot have consented to that term with the result that the signature that purportedly binds the person to it is not his or her consensual act. The adventure tourism industry in particular has responded to cases like Crocker and Karroll by building standardized releases that are typically one or two pages in length. At the top is a rectangular box bordered in red with a background highlighted in yellow and text written in bold and all caps that says something like, "RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK AND INDEMNIFICATION AGREEMENT" followed by "BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT" and "PLEASE READ CAREFULLY." Participants initial or sign adjacent or below this warning. It is impossible for someone signing a document such as this to claim they were unaware as to its nature. The body of the release should include the heading "Assumption of Risks." This section details the risks and hazards involved in the activity, including negligence of the party relying on the release (i.e., the business, its guides, staff). Negligence should be spelled out to mean the failure on the part of the releasees to take reasonable steps to safeguard or protect the person from the risks, dangers, and hazards of participating in the activity. The document should also employ specific language describing the release of liability and waiver of claims so that the person waives any and all claims and releases any and all liability for any loss or injury, including death due to any cause whatsoever. This covers negligence, breach of contract, or breach of any statutory or other duty of care, including under the Occupiers Liability Act 29 (where applicable) on the part of the releasees. In addition to having a no misrepresentation clause and a jurisdictional clause, as well as having the document witnessed, it is important that it be stored and secured in case a legal action is contemplated or commenced. In the case of Isildar in which a scuba driver drowned, the Court applied the reasoning of McLachlin in Karroll and concluded that Isildar knew what he was signing. The Court reviewed the terms of the PADI Standard Safe Diving Practices Statement of Understanding and of the Liability Release Agreement and concluded that by signing the liability release document, Isildar relieved the defendants of any liability, whether claimed in tort or in contract, owed to the plaintiffs. It was also highlighted that prior to the deep dive, Mr Isildar had already signed three liability releases, all containing similar language, and the first one, signed more than a month earlier, was identical to the release at issue in the case. Under these circumstances, there was just no way Isildar didn't know what he was signing. The Court of Appeal for British Columbia dealt with the enforceability of a waiver in the zip-lining case of Loychuk v Cougar Mountain Adventures Ltd.30 Deanna Loychuk and Danielle Westgeest signed waivers and were injured when they collided on the same zipline on a tour operated by Cougar Mountain Adventures Ltd. Remarkably, Cougar Mountain admitted at trial that the incident and injuries were caused by the negligence of its employees but asserted that the Loychuk and Westgeest had waived their cause of action. On a summary trial, the Court held that the release was a complete defence to the appellants' claims and dismissed their action. The judgment was appealed, and the appellate Court in Loychuk cited the three-part test used by the Supreme Court of Canada in Tercon Contractors Ltd v British Columbia (Transportation and Highways)31 in determining the enforceability of waivers. The second prong of the test dealt with unconscionability and said it requires proof of inequality of bargaining positions and proof of substantial unfairness of the bargain for the waiver to be unenforceable. The Court noted there was no power-imbalance and that it is not unfair for an operator to require a release as a condition of participating. There was no evidence of duress, coercion, or unfair advantage, resulting from economic or psychological need. Further, it was the company's policy to give a full refund to anyone who, having paid in advance for a zipline tour, declined to sign a waiver. Offering a full refund to someone who has paid in advance but refuses to sign a waiver further underscores that there is no duress, coercion, or unfair advantage and ought to be regarded as a best practice. ## Key Terms - adventure tourism - risk - waivers ## Notes and References 1. Destination British Columbia, "Outdoor Adventure Tourism Sector Profile" (May 2014) at 1, online (pdf): Retrieved at <https://www.destinationbc.ca/content/uploads/2018/05/Tourism-Sector-Profile_OutdoorAdventure_May2014.pdf>. 2. United Nations World Tourism Organization, "Global Report on Adventure Tourism" (2004) at 10, online (pdf): <https://skift.com/wp-content/uploads/2014/11/unwto-global-report-on-adventure-tourism.pdf>. 3. Megan Griffith-Greene, "Outdoor Adventure Industry Lacks Oversight, Victims Lack Recourse" (6 March 2014), online: CBC News <https://www.cbc.ca/news/business/outdoor-adventure-industry-lacks-oversight-victims-lack-recourse-1.2561140>. 4. One market research firm valued the global adventure tourism market at $586.3 billion in 2018. See Allied Market Research, online: <https://www.alliedmarketresearch.com/adventure-tourism-market>. The Adventure Travel Trade Association estimated that adventure travellers worldwide spent $142 billion in 2009. 5. Griffith-Greene, supra note 3. 6. British Columbia Coroners Service, "Avalanche Deaths 1996-2014 (YTD)," online (pdf): <https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/avalanche.pdf>. 7. [1974] SCR 239, 38 DLR (3d) 105 at 247. 8. 2008 CanLII 29598 (ON SC). 9. [1991] 1 SCR 374, 78 DLR (4th) 666 at 379. 10. 1993 CanLII 2007, 21 BCAC 308 (CA). 11. Ibid at paras 6, 12. 12. Ibid at para 3. 13. Alicia Bridges, "Zero rescues and counting': Meet the Saskatchewan Avalanche Rescue Team," CBC News (5 August 2017), online: <https://www.cbc.ca/news/canada/saskatoon/saskatchewan-avalanche-rescue-team-saskatoon-new-company-1.4236896>. 14. 1995 CanLII 763 (BC SC). 15. 2000 BCSC 1740. 16. 1996 CanLII 378 (BC SC). 17. 1983 CanLII 387, 44 BCLR 24 (CA), aff'g 1981 CanLII 722, 34 BCLR 62 (SC). 18. Ibid at para 17. 19. [1934] 2 KB 394, [1934] 2 KB 394, 103 LJKB 730. 20. 1978 CanLII 1446, 18 OR (2d) 601 (CA). 21. Delaney v Cascade River Holidays Ltd (CA), supra note 17 at para 28. 22. Delaney v Cascade River Holidays Ltd (CA), supra note 17 at para 29. 23. Ibid at paras 14, 15, 39, 40. 24. Ibid at para 41. 25. 1985 CanLII 2182, 20 DLR (4th) 552 (ON CA). 26. 1988 CanLII 3294, 40 BLR 212 (BC SC). 27. Ibid at para 15. 28. Ibid at para 23. 29. Most provinces have an Occupiers Liability Act. They include British Columbia, Alberta, Manitoba, Ontario, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. The provinces that don't and instead rely on principles of common law (or the Civil Code in Quebec) rather than codified statutes include Quebec, Saskatchewan, and New Brunswick. 30. 2011 BCSC 193. 31. 2010 SCC 4. ## Questions for Review and Discussion **Scenario 1** A 20-year-old woman, Lynn, is halfway through her first season as an assistant rock guide. She works alongside a senior rock guide who has ten years of experience. They are instructing a rock climbing class at a local crag. Nearby is a couple who are literally learning the ropes. Lynn notices they're novices and, fearful that they're going to kill themselves, offers some general tips on how to belay (hold the rope to catch any fall) and climb. Over the course of the day, the couple asks Lynn several questions, and she obligingly answers them. In the mid-afternoon, one of the climbers is badly hurt on a route after falling and hitting the ground because of an improper belay. The injured climber sues Lynn claiming that she was negligent in telling them what to do, that he was induced into trying something he wasn't ready to do, that she in effect certified the belayer as competent, and that she was effectively supervising them-albeit unofficially-and failed to do so. Question: How would the Court look at this lawsuit? **Scenario 2** Two university-aged friends agree to go skiing. One recently immigrated to Canada and had never seen snow nor been skiing. The other learned how to ski as a child, was an expert skier, and had a season pass for the last five years at another ski hill. The manner in which they bought their day passes and signed the waivers was rushed, and when asked by the novice skier if he could sue if he was injured, the staff member administering the waiver said, "I'm sure you could, ya." He subsequently broke his leg badly on a black diamond (advanced) run and sued the ski hill. Question 1: What would the Court look at in determining the enforceability of the waiver? Question 2: Would the outcome be different if it were the expert skier that was injured? ## Appendix 7.1: Waiver for Sea Kayaking Company **Swell Education** **RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISK WARNING AND INDEMNIFICATION AGREEMENT** **WARNING: PLEASE READ CAREFULLY BEFORE SIGNING!** **BY SIGNING THIS AGREEMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION FOLLOWING AN ACCIDENT** TO: Swell Education Ltd. ("the Company"), their owners, officers, directors, partners, shareholders, agents, guides, instructors, independent contractors, affiliates, volunteers, participants, employees, representatives, successors and assignees of the Company, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively including the Company - referred to as "the Releasees"): DEFINITION - This Agreement shall apply to all activities, events or services provided, arranged, organized, sponsored or authorized by the Releasees, including but not limited to: sea kayaking, stand-up paddleboarding, surfing, canoeing, camping, backpacking, swimming, fishing, hiking, instructional courses and sessions, clinics, programs, transportation or travel to and from locations used for the activities, and loading and unloading of vehicles (hereinafter collectively referred to as 'the Activities"). I UNDERSTAND THAT PARTICIPATION IN THESE ACTIVITIES CAN BE HAZARDOUS AND MAY INVOLVE THE RISK OF PHYSICAL INJURY OR DEATH. I acknowledge that my participation in the Activities entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks cannot be eliminated without jeopardizing the essential qualities of the Activities. The risks and hazards include but are not limited to slips and falls while kayaking or paddleboarding or disembarking from the kayak or stand-up paddleboard; overturning of the kayak or stand-up paddleboard; loss of balance while in the kayak or on the stand-up paddleboard; falling from the kayak or stand-up paddleboard; hypothermia due to exposure to very cold water; drowning; variation in the water conditions, surface and currents, including high waves and tides, changing and inclement weather conditions including storms, high wind and lightning; entrapment by trees, logs, rocks or equipment, collision with rocks, trees, logs, deadfall, boating equipment; equipment failure; accidents that occur while hiking, backpacking and camping including steep slopes in their natural state that may contain obstacles and hazards; variation in the terrain including holes, depressions, loose gravel, rocks, mud, roots, creeks; impacts with trees, tree stumps, forest deadfall, rocks, or other natural or manmade objects on or adjacent to the trails; encounters with wild and domestic animals; becoming lost or separated from one's guide, instructor or party, lack of shelter, limited access to and/or delay of medical attention; Lessee's health condition; physical exertion, exhaustion, dehydration, hypothermia, heat-related illnesses; mental distress; inability to act safely or within one's ability; and negligence or failure of other persons to act safely. I understand that the participation in these activities may result in muscle and joint sprains and strains; cuts and bruises; broken wrists, arms, ankles and legs; internal injuries, concussions, and other serious injuries including paralysis or death. RECOGNIZING THESE RISKS AND DANGERS, I VOLUNTARILY CHOOSE TO PARTICIPATE IN THE ACTIVITIES AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITIES, WHETHER OR NOT DESCRIBED ABOVE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE. In consideration of the Releasees allowing me to participate in the Activities and permitting my use of their equipment, I AGREE, to the greatest extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE Swell Education, its insurer, the Company's owners, officers, directors, partners, shareholders, agents, guides, instructors, independent contractors, affiliates, volunteers, participants, employees, representatives, successors and assignees of the Company, and all other persons or entities acting in any capacity on their behalf (each a "Released Party") FOR ANY INJURY, INCLUDING DEATH, LOSS, PROPERTY DAMAGE OR EXPENSE, WHICH I MAY SUFFER, OR THAT MY NEXT OF KIN MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF MY PARTICIPATION IN THE ACTIVITIES, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY'S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT OR NEGLIGENT REPRESENTATION AND/OR EXPRESS OR IMPLIED WARRANTY OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE UNDER THE OCCUPIERS LIABILITY ACT, R.S.B.C. 1996, c337. I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF ANY RELEASED PARTY TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF THE ACTIVITIES. I acknowledge that I am required to wear an approved Personal Flotation Device and other safety equipment while participating in certain Activities. I am aware that there are guides or instructors available to answer any questions that I may have as to the proper use of the equipment. I am further aware that the physical exertion required of certain of the Activities can activate or aggravate per-existing physical injuries, conditions or congenital defects. I acknowledge that I should seek medical advice if I know or suspect that