Some time ago, I wrote a blog post about a Court of Appeal decision that upheld, and arguably extended, the enforceability of liability waivers and releases signed by customers of commercial enterprises. That particular case involved zip-lining, an activity the court described as an inherently risky recreational adventure. While that decision served as confirmation that the owners, operators and staff of commercial adventure businesses can protect themselves from negligence claims by their patrons, it did not answer the question of whether the participants in such activities owed a duty of care to each other.
However, a recent B.C. Supreme Court decision does provide that answer, at least in the context of back-country skiing. It is the first case in Canada to consider whether a "ski buddy" owes a legally enforceable duty of care to the person with whom they choose to ski. This case has widely been referred to in the media as the "ski-buddy" case. The case raises several interesting considerations, both for participants in high-risk adventure sports and for the owners and operators of enterprises that facilitate those activities. Adventure tourism is a significant part of B.C.'s tourism industry.
The lawsuit was brought by a woman whose husband, Mark Kennedy, died of asphyxiation after falling into a tree-well while heli-skiing at Mike Wiegele Heli-Skiing near Blue River, B.C. She brought her claim under the Family Compensation Act seeking to recover the financial loss to her resulting from the death of her husband. She did not sue the guides or the heli-skiing operator, likely because Mr. Kennedy had signed a waiver releasing them from legal responsibility. Instead, Mrs. Kennedy alleged that her husband's "ski buddy," Adrian Coe, was legally responsible for Mr. Kennedy's death and the resulting financial loss to her. She alleged Mr. Coe owed Mr. Kennedy a duty of care which he failed to carry out. Specifically, she asserted Mr. Coe did not remain close enough to his buddy and failed to notify the guides in a timely way that Mr. Kennedy was missing. This, she argued, delayed the search for Mr. Kennedy and any chance of rescuing him.
Mr. Kennedy and Mr. Coe had been assigned as "ski buddies" by their guides at the start of the first day of the trip. The men did not know each other and never spoke. The Court commented that Mr. Kennedy chose to engage in a "high-risk sport with knowledge of its attendant risks. He paid a third party for the opportunity to participate in that sport, and signed a waiver of liability. He participated in a buddy system that was flexibly applied depending on the terrain, the conditions and the instructions of the guides."
In short, the Court found that Mr. Coe did not owe a duty of care to Mr. Kennedy because, in legal parlance, there was not a "special relationship" of sufficient "proximity" between the two men. Madam Justice Fisher reasoned:
Mr. Coe did not take effective control over or undertake primary responsibility to manage or mitigate the risk and consequences of Mr. Kennedy falling into a tree well. Moreover, he did not know that the risk had actually materialized. Nor can it be said that Mr. Coe's agreement to be Mr. Kennedy's ski buddy put Mr. Kennedy in a worse position. It may have prevented Mr. Kennedy from being paired with another skier but any other skier would have been in the same circumstances and subject to the same directions from the guides as Mr. Coe.
When Mr. Coe agreed to be Mr. Kennedy's ski buddy in the circumstances here, he did not invite Mr. Kennedy to rely primarily on him to mitigate the potential risk of injury or death resulting from the hazards inherent in back-country skiing. Mr. Coe could neither control the inherent risks nor Mr. Kennedy's conduct. Any role that Mr. Coe played did not place him in a position where he was materially implicated in the control of the risk of Mr. Kennedy falling into a tree well and dying from asphyxiation. He did not assume responsibility for Mr. Kennedy's safety. He was not responsible for calling a search and conducting a rescue operation. This was the role of the experienced guides and support staff employed by Wiegele's.
Whatever relationship was created when the two agreed to be ski buddies, it was defined by the guide's instructions to the group at the top of the forest (to keep each other in visual and vocal contact in the forest) and more generally by the instructions provided in the safety video (to use the buddy system in the trees, stay in contact with their partners and keep the guide's tracks in sight). Mr. Coe and Mr. Kennedy never spoke to each other. There is no evidence of any mutual understanding as to what their roles as ski buddies entailed outside of this context. Moreover, Mr. Coe did not have a material role in managing the risk, as discussed above.
In my view, a skier who accepts a buddy relationship does not park his autonomy at the bottom of the mountain, and remains responsible for his own actions. . . . "[S]hort of active implication in the creation or enhancement of the risk", one ski buddy is entitled to respect the autonomy of the other. I do not accept the view that Mr. Coe and Mr. Kennedy voluntarily surrendered all of their autonomy by agreeing to be ski buddies. They did so to a limited extent. Except when Mr. Coe followed Mr. Kennedy through the forest, each continued to ski as and where he wished without reference to the other.
In conclusion, Madam Justice Fisher held that there is no legally enforceable duty of carebetween paying guests on a heli-ski trip. She found that the primary responsibility for safety in cases like this rests with the individual participants. She wrote:
There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence . . . For the reasons I have outlined, I conclude that none of [these] factors . . support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish a prima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The "more" may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances.
This decision is important for several reasons. First, it clearly places on individual participants the primary responsibility for their own safety when engaging in high risk adventures. If that is to change, it should only be in clear and definable circumstances that establish a common understanding of a shift in the acceptance of that risk. Second, it brings some certainty to the adventure tourism industry that its customers will not be sued by other guests who may suffer misfortune while participating in their chosen high-risk adventure. Lastly, it is a cautionary tale about the prudence of purchasing travel insurance. In this case, Mr. Coe, a resident of London, England, had the foresight to obtain a good policy from Dog Tag Travel Insurance. That insurance protected him from the costs of defending Mrs. Kennedy's claim.
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