Waivers go by many names, but generally, waivers are written agreements that people sign before they participate in risky activities.
Waivers are a risk management tool that involves transferring liability for injuries from one party to another by means of written contract. Many sports and recreational facilities require participants to sign waivers prior to engaging in activities in order to protect their organizations from lawsuits.
When dealing with sports and recreational activities for children, it is common practice to have a parent or guardian sign on behalf of the child. Despite often being badly written, poorly designed and improperly executed, courts have upheld waivers in cases of personal injury, and many sports organizations continue to use and rely on waivers for risk management.
There is little jurisprudence regarding the enforceability of a waiver in connection with minors’ participation in sports activities. However, a recent precedent-setting case out of British Columbia concluded that “parental waivers” are not enforceable, and parents or guardians cannot waive their child’s right to pursue legal action for a claim in negligence relating to recreational activities.
In Wong v. Lok’s Martial Arts Centre Inc., 12-year-old Victor Wong was injured in a sparring session at Lok’s Martial Arts Centre. The boy’s mother signed a waiver on behalf of her child before enrolling her son in the martial arts program. The B.C. Supreme Court judge concluded that a parent cannot waive a child’s right to sue for negligence.
Victor sued the owner and operator of the Martial Arts Centre as well as the adult with whom he had the sparring match. The defendants brought an application in advance of the trial to have Victor’s claim dismissed on the ground that they were prohibited to bring a claim in negligence by the waiver signed by his mother.
Victor’s mother stated that she did not read the waiver carefully before signing it. She knew that she had to sign it in order for Victor to participate. She stated that he had no intention of waiving her son’s right to sue for injuries resulting from the facility’s negligence. Victor stated that he did not sign the waiver and did not authorize his mother to waive any rights on his behalf.
Justice Wilcock referred to the Infants Act, R.S.B.C. 1996, c.223, in his decision wherein he made the definitive statement: “The Infants Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.” In reaching this decision, he felt the B.C. Legislature intended the Infants Act to establish the sole means of creating contractual obligations that bind minors.
Are waivers worthless?
This case is the first Canadian case dealing with children and waivers in recreational activities. It is law in British Columbia unless it is overturned by the B.C. Court of Appeal. The decision has not been adopted in other Provinces in Canada and not every Province has an Act like the Infants Act, which forms the basis of the B.C. Court’s decision. We will have to wait and see if courts in other Provinces find the decision persuasive enough to follow it based on public policy reasons or begin to create Legislation directed at protecting children’s rights like the B.C. Infants Act.
The Wong decision may have caused sports and recreation providers to question whether parental waivers are worthwhile in managing risk. A court may choose to follow Wong and conclude the parental waiver is not enforceable, but a waiver can still be used to bring to a parent’s attention the risks associated with an activity and document a facility or a program’s safety procedures and protocol. This, in addition to additional insurance and ensuring staff are well-training and participants are not subject to dangerous conditions, will help to effectively manage risk and minimize liability.
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