Properly managing the risk of personal injury and property damage

Waivers and acknowledgement of risk forms

If your company operates in the sports and outdoor activities industry, your customers are particularly at risk of bodily injury and property damage. Do you know how to properly protect yourself? Understanding the law and the means available to you is a good starting point for managing your risk. Read on to learn more about waivers and acknowledgement forms: two tools that could save you a lot of trouble down the line!

Massive awards for victims

Courts are increasingly awarding significant payouts to personal injury victims. The amount awarded is generally determined by two factors: the severity of the injury and the age of the victim. Essentially, the longer a person will have to live with their injury, the higher the damages will be. It’s important to find a way to manage these risks.

Waivers: For property damage

Waivers are a commonly recommended way to manage risk. Why? Because they are an inexpensive and effective way to manage the risk of property damage.

By signing a waiver, the signatory accepts the risk of property damage and waives their right to sue. This has several benefits:

• The signatory believes that they have no legal recourse, which can save you from paying court costs.
• The high cost of going to court may also deter the individual from taking legal action.
• Waivers tend to stand up in court when they are comprehensive and clear. A waiver can therefore be a defence in itself.

It goes without saying that it is always best to consult a professional when drafting a waiver. In order to be valid, a waiver must meet the following conditions:

• It must be presented to the signatory before they have paid for the activity
• The whole waiver must fit on one page
• The document must be labelled or identified as a waiver
• The parties must be identified
• The waiver must include a detailed description of the activity and its risks
• The waiver must mention the notion of negligence
• The waiver must include a statement that by signing the waiver, the signatory waives the right to sue
• The document must be signed in the presence of a witness
• The signatory must be given all the time they need to read and understand the waiver and ask questions

 Acknowledgement forms: For personal injury

So, what about personal injury? Your liability can be limited with an acknowledgement and acceptance of risk form. This form has the same purpose as a waiver, but the signatory retains the right to sue. However, in the event of legal action, it is easier to prove that the signatory was aware of the risks of the activity.

A number of recent rulings in Quebec have found in favour of ski resorts that used an acknowledgement and acceptance of risk form for bodily injury claims arising from a risk identified on the form.[1]

Finally, it is common to pair a waiver with an acknowledgement and acceptance of risk form.

What should you do if your services or activities cater to children?

If your services and/or activities cater to children, things get a little trickier. Waivers and acknowledgement forms cannot bind a child. In other words, a child cannot make an informed decision to waive their right to sue. In addition, a child cannot be bound by a parent or guardian’s signature on a waiver. According to a 1994 report by the Law Reform Commission of British Columbia, “[m]inors should not be prejudiced by their own parents’ naivete.”

However, even though the legal age for signing waivers and acknowledgement and acceptance of risk forms in Quebec is 18, there are still certain benefits to having a minor sign such documents. For example, the child will be prompted to think about the extent of the risks involved in the activity. The impact of a parent or guardian signing such forms on behalf of the child is still up for debate.

Key takeaways

Together, waivers and acknowledgement and acceptance of risk forms are an effective way to manage the risk of property damage and personal injury associated with your activity. Moreover, the courts have repeatedly rendered decisions proving their relevance. Don’t hesitate to talk to your commercial damage insurance broker to develop an appropriate risk prevention strategy.

Disclaimer:

This text is intended for informational purposes only. It is recommended to seek the advice of a lawyer or legal professional. Lareau Insurance Brokers disclaims all responsibility for the information contained in this text.

[1] Corbeil v. Mont Saint-Sauveur, Superior Court of Quebec (2013)

Gauthier v. Mont-Tremblant, Superior Court of Quebec (2017)

Massé v. Les Sommets de la Vallée (Mont Saint-Sauveur), Superior Court of Quebec (2018)