It was like having the life having sucked out of you. It’s just sliding down a cable. Maybe without a tour group, it’d be kind of fun. Maybe.
Stan, South Park, TV: South Park 16.6 I Should Have Never Gone Zip lining
When Deanna Loychuk and Danielle Westgeest booked their zip line adventure at Cougar Mountain in Whistler, British Columbia, they were eagerly looking forward to their exhilarating cable line expedition through the forest. They made a reservation and followed through, ready to embark on their adventure. They were asked by Cougar Mountain to sign a release and signed it without thinking twice.
We have all done that at one point in time, foolishly, thinking we are invincible and there would be no need to worry about lawsuits and court actions when you could be the next Evel Knievel. They saw the usual title and words release of liability, waiver of claims please read carefully and nonetheless submitted the form before their excursion. They were not forced to go zip lining. No one from Cougar Mountain coerced them to engage in this thrill seeking behaviour.
The ride began and the two women collided as a result of miscommunication between the guides in control of the rides resulting in injuries to both women. Together they sued Cougar Mountain but lost at trial (2011 BCSC 193, 81 C.C.L.T. (3d) 89 and the decision was upheld at the British Columbia Court of Appeal (2012 BCCA 122 (CanLii))
Cougar Mountain admitted the accident was caused by the negligence of their staff but argued that the women had waived their cause of action by signing a valid release. The two Plaintiffs unsuccessfully argued that the release was unenforceable as it was not explained to them, unconscionable, was invalid under the BC Consumer Protection Act due to the deceptive acts of Cougar Mountain and invalid because there was no consideration. The trial judge rejected these arguments and dismissed the action.
Upon appeal, the court found that it was not unconscionable for an operator of a facility at which participants engage in inherently risky recreational activities to require that person to sign a release barring future claims citing the fact that such participation is voluntary, not mandatory.
The Judge held that the release was not unconscionable or deceptive and that the consideration for signing the release was the ability to participate in the activity, whether or not they read or understood the true meaning of the release they were giving.
Although a British Columbia case, the effects of this decision are far reaching and likely to be adopted in Ontario in similar circumstances.
What does this mean for the everyday thrill seeker? It means that one who engages in objectively dangerous activities and signs a release gives up their right to sue if something goes wrong or damage occurs, even if the fault lays with another party.
In other words, when you sign a release, you are contracting out of negligence claims, thereby giving up your common law rights without even perhaps realizing this is the case. It is only in significant circumstances will a release be set aside to restore a cause of action.
The message seems to be very clear if you participate in a risky activity, sign a waiver which has clear terms, is legible and understandable you will have no rights against a party and assume the risks yourself if an injury or damage ensues.
This case should cause people to think twice about whether or not the activity they want to engage in such as zip lining, horseback riding, sky diving or bungee jumping is really worth the risk in the long run.
