Waivers of Liability for Sporting and Recreational Injuries
This report deals with the use of written contractual waivers of liability by providers of sporting and recreational activities. Contractual waivers are usually required for consumers to participate in a wide variety of activities. This report recommends that there be limitations on the use of waivers of liability for personal injuries or death resulting from negligence in sporting and recreational activities.
Manitoba Law Reform Commission
The Business Practices Act and The Consumer Protection Act contain sections that relate to the provision of commercial services including the providers of sporting and recreational activities and generally are aimed at protecting consumers from the consequences of unequal bargaining power and unfair business transactions.
This report reviews Canadian case law on personal injury and fatality claims made against providers of sporting and recreational activities that have been defended in full or in part by the use of a contractual waiver of liability. Providers and consumers are faced with a very uncertain regime of responsibility and the outcome depends upon the technicalities of waiver validity and interpretation and judicial discretion.
Critics of waivers of liability argue that there is much disparity of information, knowledge and understanding of the function of waivers, that waivers negate the accident prevention function of negligence law designed to encourage cost effective steps to protect the safety of persons and that waivers allocate the cost of negligent conduct not solely to the consumer but also to society at large through the provision of health care and disability services. Proponents of waivers of liability assert the freedom to contract, that there are sufficient consumer protection principles in contract law and legislation and that the unburdening of tort losses enables providers to offer sporting and recreational activities at a lower cost.
The Commission makes recommendations regarding the enactment of new legislation and suggests that in conjunction with the implementation of new legislation, public awareness initiatives be conducted respecting the rights and remedies of consumers.