Many if not all tour operators now make use of some kind of online terms and conditions to make sure their clients understand the payment and cancellation rules. A common condition of sale is that the customer must acknowledge and accept the company’s waiver of liability, releasing the company from any responsibility should some kind of incident take place while on the tour or activity. But, just how legal are these waivers, online or offline? I decided to do some research and found some surprising information.
How do operators protect themselves from claims seeking damages for people that were injured when taking part in activities they knew were inherently risky? Skiing is a good example. There are so many accidents waiting happen when you strap on a pair slippery, awkward boards to your feet, for the ultimate purpose of sliding down an icy steep hill with bumps, rocks, trees, and other obstacles right in your path. Nobody puts a gun to your head to do this, in fact people line up for it. Operators rely on the use of waivers of liability as their defense against a law suit should someone seek damages. Is this really a legally enforceable document?
In British Columbia, there was an article published by Carters Professional Corporation about a zipline operator that was sued when two people collided. The plaintiffs brought suit against the operator but the courts upheld the operator’s defense which was the waiver. This review is well worth a read to understand what might happen in BC.
On the website Canadian-Lawyers.ca there is a somewhat different report from 2010. They state,
” The waiver of liability seems to have entered all levels of organized recreational and athletic activities. Without signing a waiver, you are unlikely to be allowed to participate in any activity outside of your own back yard. The reality is that many of the waivers proffered by organized recreational and athletic activity providers would not be enforced by Ontario courts. These courts have a history of approaching waivers with great caution. In 2008, two trial court decisions deviated from this long-standing trend. In Cejvan v. Blue Mountain Resorts Ltd.,  O.J. No. 5442, a snowboarder was denied compensation for his injuries when he struck snow-covered steel pipes on a groomed run. In Isildar v. Kanata Diving Supply,  O.J. No. 2406, the dependents of a man killed during a scuba diving instructional course were denied damages for their loss of the deceased’s care, guidance, and companionship. Notwithstanding findings of negligence in both cases, damages were denied because of waivers.”
Things are much different in New Zealand where the state covers costs for injuries. Under the heading”Am I Covered?” is the following text,
“Everyone in New Zealand has 24-hour, seven-day-a-week, no-fault comprehensive injury cover through ACC. Find out what is and isn’t covered, and what happens if you’re injured while travelling overseas or visiting New Zealand.” There is a section at the bottom of this linked page for operators and self employed individuals to get into the system.
In the United States, online contracts were recognized by the Clinton government. On their website Sadler Sports and Recreation Insurance state ”
A waiver/release agreement has two primary protective purposes:
- Contractual exculpation, which uses contract law principles (waivers and releases are contracts) to excuse a sports organization for its simple negligence; and
- Providing real evidence of the sports organization’s warning of inherent and other risks thereby triggering the common-law assumption of risk (AOR) defense under tort law.
The article is quite detailed and points out that while many states uphold waivers, there are some that will not.
John Wolohan, Professor of Sports Law, Dept of Sports Management, Syracuse University writes in a 2014 article,
“We have all heard the warnings that waivers are not worth the paper they are printed on, and while it is true that some courts do not like waivers and will void them if possible, in must be noted that in at least 45 states a well-written waiver, signed by an adult, is the most effective tool available to sport and recreation providers and their employees against a negligence lawsuit. With the myth of the effectiveness of waivers still around, it is therefore not surprising that some sport and recreation providers are concerned about the legal impact of online or electronic waivers. For example, if a sport and recreation program requires its’ participants to go online and sign a waiver before being allowed to participate in the event, will it carry the same legal weight as off-line or traditional paper waivers?”
The Law Depot website in the UK gives some insight into the situation there in this article ‘Release or Waiver Agreement FAQ” They start by defining what a release is.
A release agreement is an enforceable promise not to proceed with a legal claim in exchange for money or other compensation. Essentially, a party (the releasee) gives money or other consideration to a second party (the releasor). In exchange, the releasor agrees not to sue, press charges, or otherwise take legal action against the releasee.”
What do you think about having an online waiver that your clients use a check box to agree to your terms, conditions and waivers of liability?
We’d love to learn and we’ve created on online survey to give us a little insight into what operators might want. We’d like to invite you to take only minute or two to fill it out. You can access the page link to the survey here.