Court upholds waiver in tragic Whistler accident

In a recent decision before the British Columbia Supreme Court, Jamieson v. Whistler Mountain Resort Limited Partnership 2017 BCSC 1001, the plaintiff, Dr. Blake Jamieson, was seriously injured on August 28, 2009 while mountain bike riding at a park owned and operated by the defendant Whistler Mountain Resort Limited Partnership (“Whistler”). He described the accident: his tire got caught briefly in some terrain at the top of a feature of the park called the “A-Line Rock Drop”, causing him to be thrown over the handlebars. Unfortunately, he suffered a spinal cord injury; he is confined to a wheelchair.

Dr. Jamieson brought an action against Whistler for compensation for his personal injuries. He claimed that Whistler failed to warn him of the risks involved in mountain bike riding in Whistler’s bike park (the “Park”). He also alleged Whistler engaged in deceptive and/or unconscionable acts and practices.  These practices, he said, both vitiated the waiver of liability he signed and violated consumer protection legislation.

Whistler denied the plaintiff’s claims and argued the plaintiff signed a release agreement waiving any legal recourse he had against Whistler for the injuries he suffered. Whistler also denied it engaged in any conduct that would preclude its reliance on the release agreement or make it liable under legislation.

Whistler brought a summary trial application seeking to enforce that release agreement and submitted the court should dismiss this action. The plaintiff opposed the application both because he said it is not suitable for summary judgment, and because the wavier of liability he signed does not preclude his action.

Like all patrons, Dr. Jamieson signed an agreement as a condition of using the Park: the “Whistler Blackcomb Mountain Biking Waiver of Claims Assumption of Risk and Indemnity Agreement Release” (the “Release”). Consistent with Whistler’s inspection policy, the A-Line Trail was inspected on the morning of August 28, 2009 and no irregularities or problems were noted with the trail.

With respect to the application by Whistler to have the matter heard by summary trial. The law in British Columbia is that a judge should only decline to hear an application for a summary trial where he or she is unable to make critical findings of fact necessary for a determination of the issues and where cross-examination of the affidavits or other means of clarifying the evidence would not remedy this problem, or where it would be unjust to determine the issues raised in the application. The Court found that the matter was suitable by summary trial disposition. Therefore, the Court could address the additional two issues:

1. Does the Release adequately warn of the risks of riding in the Park?
2. If so, is the Release binding on Dr. Jamieson with the result that this action should be dismissed?

With regard to the Release itself, the Court found any reasonable person, who can read English, faced with the document, would understand that the risks of using the Park are very serious, and that by signing it, the person waives his or her right to sue Whistler.  Despite that wording, Dr. Jamieson submitted he was unaware of the legal impact of the Release. The Court found it is difficult to believe an adult with a degree in English Literature would not understand the plain words of the Release. Dr. Jamieson’s reading and comprehension skills were considerably higher than the average, reasonable person. The Court found that Dr. Jamieson had a sophisticated understanding of liability that exceeds the average person and the denial of knowledge of the content and impact of the Release is very difficult to accept in light of his personal characteristics and his evidence. The Court found on a balance of probabilities that Dr. Jamieson knew and understood the impact of his signing the Release.

With respect to the Plaintiff’s claim that the Release does not adequately warn of the specific risk of spinal injury, or the probability of sustaining that kind of injury, the court held that the Release provided adequate warning even though spinal injuries and the risk of being thrown over a bike’s handlebars are not mentioned and stated:

133      The law does not require a waiver to identify with specificity every mechanism of injury or possible injury in the face of a broadly worded, comprehensive waiver. The Release is comprehensive; it clearly excludes liability for any loss or injury no matter how caused. The Release is broader than many found valid in the case law discussed earlier, and significantly more comprehensive than many. Given that, it is unnecessary for me to make a factual finding about any specific risks from using the Park.

134      If I am wrong, and it is incumbent upon me to make a finding about risks, I am not persuaded by the plaintiff’s submissions. I would have to find on a balance of probabilities that the risk of spinal injury, the frequency of injuries at large or the likelihood of injury resulting from being thrown over the handlebars are so high that an exception should be made to the principles that specific risks do not have to be identified in the face of a comprehensive exclusion of liability clause.

 

The plaintiff also argued that Whistler is liable under s. 8 of the Business Practices and Consumer Protection Act submitting Whistler engaged in unconscionable or deceptive acts or practices through a deliberate non-disclosure of relevant documents or information about the rate and severity of injuries at the Park. The Court found the plaintiff’s allegation of non-disclosure to be unsubstantiated, the Release to be comprehensive and, in the alternative, the risks of spinal injury not proven significant enough to depart from the established case law about exclusion of liability.

The Court was satisfied on a balance of probabilities that Dr. Jamieson knowingly and voluntarily signed the Release in order to use the Park. That eliminated his claim under s. 8 of the Act. The Release adequately identified the risks of using the park. The Court was satisfied that Whistler had proven under the Act that it did not engage in any “oral, written, visual, descriptive or other representation” that had the “capability, tendency or effect of deceiving or misleading” its patrons.

Accordingly the Court found the Release is valid and enforceable, and effective to bar the plaintiff’s claim. The Court also found Whistler had proven it had not violated any provision of the Act. Therefore, Whistler was entitled to a declaration that Dr. Jamieson is bound by the terms and conditions of the Release he signed on June 28, 2009 thus precluding him from suing Whistler for any injury, loss, damage or expense he may have suffered as a result of the accident that took place on August 28, 2009 in the Park. The Court granted an Order dismissing his action.