Lots of sports and recreational activities involve a degree of risk. The risk of course is that somebody will get hurt. That’s why we are all asked to sign waivers before many activities, especially where we are paying for the fun and excitement.
The recent decision in Levita v Alan Crew et al., 2015 ONSC 5316 serves as a reminder that those waivers can be an obstacle to recovering compensation, and that there are risks inherent in some activities that are accepted by participants.
So, when you have signed a waiver can you still sue afterwards? The answer is “maybe”. In the Levita case, the answer was no. The case involved an injury suffered by a recreational hockey player in a “non-contact” league. The injury arose from what the court found was incidental contact that was an inherent risk involved in ice hockey, and there was no negligence on the part of the opposing player or of the league. Importantly, the plaintiff had signed a waiver when he joined the league.
The waiver listed a series of risks of playing hockey that were being accepted by the participant, including collisions and being hit by pucks or sticks and that the injuries could range from bruises to spinal cord injury resulting in paralysis.
In the end, the court concluded that by agreeing to play hockey and accepting its inherent risks, a player essentially assumes the risk of some injury (the language used by the court was “consent”). However, where an injury arises from a risk that is not part of the usual risks of the game (intentional acts or risks created by poor supervision or officiating for example) then such injuries can be compensated.
With respect to the waiver itself (which is part of the contract for services, whether you are playing hockey or sky diving) the court held that even if the league had been found negligent for failing to provide a safe environment, the waiver amounted to a “complete defence”.
There is no question that waivers can pesent problems for injured participants in recreational sports. Probably the most important thing is this: do not assume that you have no claim just because you signed a waiver. You need to have a lawyer carefully review the waiver itself and all the circumstances leading up to the injury.
At McNally Gervan we have the experience to navigate through these legal issues. Don’t hesitate to contact one of our lawyers for a free consultation.