I Signed A Waiver And Got Injured—Do I Have A Remedy?
Signing a release of liability waiver is not a rare occasion. Businesses are increasingly anxious about being sued, and insurance companies attempt to equip businesses with some form of safeguard. Waivers happen on school trips and at the local sports center. They are generally on the back of your ski ticket, and certainly are presented at any sky diving activity. It’s not uncommon that when people or their loved ones suffer a serious injury at someone else’s fault, and have signed a waiver, they often think that they have no recourse and that nothing can be done.
DOES SIGNING A WAIVER PREVENT YOU FROM SUING?
The law around waivers in Canada and Ontario are constantly changing. Without a thorough analysis of certain case law and current legislation, it is too difficult to predict with any certainty whether the waiver will in fact hold up in court or not. The fact that a person has signed a release of liability waiver does not mean that they have no remedy if they are injured at the fault of someone else.
Generally speaking, for a waiver to be effective in some manner, its language must specifically capture the circumstances of the incident and must explicitly exclude the defendant’s liability for that risk. For instance, in a number of cases that have been decided, the circumstances of the incident that cause personal injury fell outside of that contemplated by the waiver, which means the precise language of the waiver failed to identify the circumstances that led to the injuries. As an example, if someone is injured at a ski resort by tripping and falling on a heaved piece of pavement, and the waiver does not specify this set of circumstances, then there is an argument that the waiver did not capture this incident.
The release of liability waiver must also be brought to the attention of the person signing it, and it must be understood by the individual as to what exactly they are waiving. In some cases, a company has failed to bring to the attention of the signee the contents of the waiver, which can therefore make it unenforceable.
WHAT IF I AM A PARENT AND I SIGNED FOR MY CHILD ON THEIR BEHALF?
For obvious reasons, parents often sign on behalf of their minor children. This happens often for school outings or extra-curricular sport teams. If the child is injured while at a school outing or sporting event, parents often misconceive that the waiver prevents their child from seeking any legal remedy when their injury resulted at the fault of someone else. Contact us