A recent decision of the BC Court of Appeal, Apps v Grouse Mountain Resorts Ltd., 2019 BCSC 855, will have significant effects for personal injury claimants on British Columbian ski hills. Waivers printed on signs and tickets may no longer apply.
Most skiers and snowboarders, and sports enthusiasts generally, are familiar with the waiver of liability that accompanies the use of recreational facilities. Historically these waivers – often printed on the back of the ticket, or otherwise posted where the consumer pays to enter – compel the user to waive certain rights against the operator, in exchange for use of the facility.
The Court of Appeal in Apps was particularly concerned with an "own negligence" clause, which releases the operator from liability even where the injury resulted from the operator's own carelessness, rather than just the inherent risk of the activity.
In this case, a 20-year-old snowboarder from Australia was rendered a quadriplegic after suffering a spinal injury during a run in the Grouse Mountain terrain park. While attempting a jump on a park feature labeled "XL" (marking the jump as an advanced feature), Mr. Apps landed upside down on the knuckle before the landing slope, resulting in a catastrophic injury.
Mr. Apps sued Grouse Mountain Ski Resort, alleging negligence, breach of contract, breach of the Occupiers Liability Act, and breach of the Business Practices and Consumer Protection Act. At trial, Grouse Mountain relied on the following:
- an exclusion of liability notice (a message printed on both a sign above the ticket booth and the lift ticket itself, stating that Grouse Mountain is not liable for any injuries sustained on the hill), and
- warning signs posted in the terrain park.
The trial judge held that these notices constituted a complete defense to Mr. App's claim. The claim was thus dismissed at trial.
Last week, the Court of Appeal disagreed with Grouse Mountain's position. In short, the Court held that Grouse Mountain did not take reasonable steps to ensure that Mr. Apps was aware of the waiver prior to his purchase of the lift ticket.
The Court of Appeal considered two issues; whether the trial judge erred by:
- considering the signage in the terrain park, which Mr. Apps could not have seen until well after he purchased his lift ticket; and
- whether the judge had applied the wrong legal test when considering Mr. App's experience as a snowboarder at other resorts, by determining that he should have been aware he was waiving his legal rights at Grouse due to his experience with waivers at Whistler Mountain Resort.
Where a document (such as the waiver in this case) is intended to release the operator from liability, the enforceability of that condition depends on whether reasonable steps were taken to notify the claimant of the terms.
What constitutes sufficient notice depends on the facts of each case, but generally, the more onerous the condition, the more explicit the notice must be. "Own negligence" clauses are among the more onerous conditions. The trial judge held that Grouse took sufficient steps to give reasonable notice to Mr. Apps of both the risks and hazards of using the XL jump, and of Grouse Mountain's exclusion of liability for its own negligence.
The first issue with respect to notice concerned timing of the notice: at what point in the transaction was Grouse obligated to bring the "own negligence" clause to Mr. Apps' attention? The Court of Appeal determined that the appropriate time for providing notice was prior to purchase of the ticket, when a purchaser could have read the terms and then decided whether they were still willing to continue with the transaction. The trial judge had thus made an error in law when she also considered the signs at the terrain park in her analysis of the adequacy of the notice.
The Court of Appeal then turned to adequacy of the notice at the ticket booth. It relied on three particular findings of fact to determine that the poster at the ticket booth did not provide Mr. Apps with sufficient notice of the "own negligence" clause, a term in the waiver shielding Grouse Mountain from liability even on the basis of their own carelessness:
- Aside from the heading ("Please Read Carefully", in all caps), the poster was difficult to read;
- The "own negligence" clause was buried about a third of the way down, and was not highlighted or emphasized in any way; and
- It was unrealistic to expect someone approaching the ticket booth to stop in front of the window and read the sign, as it was positioned away from where the purchaser would be focused when buying their ticket.
The next issue for determination on appeal was whether, despite the inadequacy of the notice at the ticket booth, Mr. Apps still had sufficient notice of the waiver due to his prior experience with ski resort waivers. The Court of Appeal found that he did not, as only actual knowledge of the term through previous experience with it would qualify. This was Mr. Apps' first time at Grouse Mountain. His knowledge of an "own negligence" clause at Whistler was not transferrable for the purposes of fixing him with knowledge of the "own negligence" clause at Grouse.
On the bases of these two errors by the trial judge, the Court of Appeal allowed Mr. Apps' appeal and set aside the order dismissing his claims against Grouse Mountain. To be clear, this ruling did not establish that Grouse is at fault for Mr. Apps' injuries; as Mr. Justice Grauer stated at paragraph 8: "The effect of my conclusion is not that Grouse Mountain is liable to Mr. Apps. That remains to be litigated.” It means only that Mr. Apps may proceed with his claim." Ski and snowboard enthusiasts will no doubt follow this litigation closely to determine what rights, if any, they may have if injured in a similar context.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.