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Don’t sign unreasonable waivers

It is impossible to completely eliminate the risk of injury in our lives.

While there are lots of ways to minimize the risk that yourself, or people you care about, might suffer an injury, that risk cannot be totally eliminated.

Not only that, but the more risk you eliminate, the less fun you have!

As fun as it might be to read a book, the only risks being eye strain and a paper cut, it’s small consolation when the rest of the world is out enjoying far riskier activities such as bouncing on a trampoline, playing volleyball, or even just sitting by the pool.

Sitting by the pool? How could that be risky?

Use your imagination. Any idea how many people suffer serious injury or die every year from pool-side incidents?  Some poolside surfaces get dangerously slippery when wet, for example.

Injuries usually happen because someone wasn’t being careful; someone didn’t live up to the general legal duty we all have, which is to take reasonable care not to cause other people harm.

In our legal system, breach of that duty is called negligence.  The Court will require the negligent person to pay compensation to the person who was injured because of the negligence.

I think most people would agree that this is all fair and reasonable.

What about when you send your child on a school canoeing trip with some outdoor adventure company? Should those fair and reasonable rules be any different?

The outdoor adventure company owes your child a duty to take reasonable care not to cause your child harm. This includes taking your child to a reasonably safe river, i.e. not over Niagara Falls.  It includes driving safely to get there, ensuring your child wears a lifejacket, giving your child some basic instruction on the operation of a canoe, ensuring adequate adult supervision, and other common sense precautions.

You accept that the activity has more risk of injury than reading a book – even if reasonable precautions are taken.  Some tree on the side of the river could just happen to come crashing down as your child is paddling by and cause serious injuries.

It wouldn’t be fair for the outdoor adventure company to be held responsible for injuries that could not have been avoided by taking reasonable safety precautions.

If, however, injury occurs because of negligence, i.e. the driver of the bus is driving like a maniac, the canoes are held together with duct tape, there are no life jackets, or the grade 4 canoeing trip is down class 5 rapids on the Kickinghorse River, it is fair and reasonable for the outdoor adventure company to be forced to take legal responsibility for the injury.

The thing is, such companies often require a waiver of liability to be signed.  The purpose of these waivers is to change the rules.  By signing the waiver, you agree not to seek compensation from them if an injury occurs.

If a waiver simply warns you of risks of the activity that cannot reasonably be avoided and requires you to agree not to claim compensation for injuries arising from those risks, that would be fine.  It would be fine because that would not change the rules.

The problem is that many waivers go further than that.  Many waivers include a promise not to claim compensation even if the outdoor adventure company is found to be negligent.

How ridiculous is that!

Why would anyone sign such a thing?

I figure that most people feel they have to.  Most people have come to accept waivers as a normal part of our lives.  I wonder how many people actually read them.

Don’t sign them.  You should not be sending your child on an outing with a company that refuses to take responsibility for their own negligence.  Your child’s school shouldn’t be asking you to.

Might you be an unpopular mom or dad for throwing a wrench into what might sound like a fun outing?  It’s not a popularity contest.  It’s about your child’s safety.  How careful is a company likely to be about your child’s safety if you’ve waived the right to claim compensation against them even if they’re complete idiots?

Published September 30, 2007 in the Kelowna Capital News

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