How to Protect Yourself When Risk is Assumed
It’s a sad irony that some of our most enjoyable leisure activities all share a certain element of risk. You go to a baseball game, there’s a remote chance a fly ball could hit you and cause injuries. You hike, there’s the prospect of twisting your ankle, leaving you stranded in the middle of nowhere. As part of a team building activity, you go zip lining, and are injured in the process.
There are serious risks inherent in many of our favorite pastimes. Risks that could result in injury, or even death in some cases. Traditionally, the Canadian legal system has held that most risks are assumed when you voluntarily take part in a risky activity. But recently, there’s been a move away from this attitude.
The good news is that this shift is more beneficial for the injured party.
In this article, we’ll look at the historic roots of assumed risk, examine the more modern concept of contributory negligence, and review how this applies to occupier liability when it comes to assessing damages in a personal injury suit.
Volenti non fit injuria: The voluntary assumption of risk
In the not-too-distant past, the legal system followed the doctrine that you couldn’t legally wrong a willing participant in an activity no matter how risky: volenti non fit injuria. By agreeing to take part, the plaintiff automatically absolved the defendant of responsibility, no matter the consequences.
But such an understanding completely barred plaintiffs from recovering in situations where they may have assumed more risk than they were aware of.
This attitude shifted in 1971 with the decision in the English Court of Appeal case Nettleship v Weston. In this landmark case, it was decided that knowing the risks involved in an activity and being a willing participant was not enough. What was necessary was an agreement to waive any claim of negligence for injuries the plaintiff might suffer because of assuming those risks.
Since then, the Ontario Court of Appeal has followed suit, stating that the plaintiff must waive their right to sue for injuries. This waiver could be by express agreement or implied in the conduct of both parties.
As an example of a waiver implied by conduct, another English case—Morris v Murray—is often cited. Here, two men who were drinking decided to go flying in the defendant’s plane. The plaintiff drove them to the airfield and helped fuel the plain. In the final verdict, it was decided that the plaintiff had assumed all risks voluntarily by being such an active participant. He thereby waived all rights to sue for damages that arose from agreeing to fly with his friend who he knew to be intoxicated.
Assumed risks and liability waivers
The assumption of risk is often applied to sports-related activities, whether the plaintiff is a bystander or a participant. In order for a volenti defense to be accepted, it must be proven that the patron had given thought to the question of liability.
To cover themselves legally, many service providers include explicit liability waivers that must be agreed to. Patrons often give consent without being aware of the details. Have you ever clicked on a link that said you’d read the terms and conditions without actually reading them? Chances are you forfeited the right to claim for damages when you did.
When you’re in a building you don’t own or rent, section 4 of the Occupiers’ Liability Act defines what duty the occupier of a property has toward ensuring your safety. As you might expect, there are some limitations built into it. Take section 4(2) for example. This states that someone who intends to commit—or is committing—a criminal act has willingly assumed all risk that could lead to injury.
There are further stipulations—sections 4(3) and 4(4)—stating that someone using a public recreational trail is also doing so at their own risk.
But the voluntary assumption of risk defense no longer applies in situations where the plaintiff is a patron. It is expected that the occupier of a property has taken reasonable steps to ensure their guests’ safety. In situations like this, damages are awarded according to the principle of contributory negligence.
Contributory negligence
With the volenti defense falling into disfavor in Canadian courts, determining liability in a personal injury case often comes down to a matter of contributory negligence. In other words, it has to be determined to what extent the plaintiff and the defendant are responsible for the plaintiff’s injuries. For example, if you successfully sued for $100,000 in damages but you were found to be 50% responsible for your own injuries, your settlement would be decreased by half.
In determining apportionment of contributory negligence, fault is determined by how far both parties strayed from the relevant standard of care. The shift away from the volenti defense means that occupiers take a more active role in protecting their patrons. Even if a plaintiff is found to be mostly responsible for their injuries, the defendant could still be responsible for paying out a large sum in damages (as we’ll see below).
Section 5 of the Occupiers’ Liability Act deals specifically with liability waivers. When signing a waiver, a patron agrees to assume all risks. And if a claim should arise, the courts will have to consider the terms of the contract when determining accountability.
In the case Cejvan v Blue Mountain Resorts Ltd, the patron of a ski resort went down a ski hill at high speed toward what he assumed to be a natural jump. Then he saw the pipes sticking out of the snow. He tried to turn but was injured in the process.
Liability waivers don’t completely absolve the defendant. Any failure to provide reasonable standards of care could count against the defense when it comes to apportioning contributory negligence.
Apportioning liability when intoxication is a factor
When the plaintiff’s injuries are the result of being impaired by alcohol or drugs while on the premises of a commercial host, the apportioning of liability hinges on one crucial factor. Did the host make a reasonable effort to ensure the guest’s safety?
Before Nettleship v Weston shifted us away from the volenti doctrine, there was the landmark case Menow v Honsberger (1969). In that case—that went all the way to the Supreme Court of Canada (SCC)—the plaintiff was ejected from the bar at the Jordan House Hotel after getting very intoxicated and unruly there. As Menow walked home along the highway, alone and quite inebriated, he was hit by a car.
The SCC decided that the hotel owed Menow a duty of care. Having established a host-guest relationship with the plaintiff and knowing he was intoxicated, the hotel had a duty to stop serving him and protect him from any foreseeable injury or harm.
In the more recent Buehl v. Polar Star Enterprises Inc. (1989), a man fell to his death while staying at an Ontario resort. The newly-built lodge was still partially unfinished, leaving Buehl’s room with a balcony door that had no balcony. The door was locked, a table was put in its way, and Buehl was warned about the danger. But he drank that night, excessively, and tragedy ensued.
Buehl was found to be 65% responsible for his own death. But it was determined the resort should have foreseen the possibility of an intoxicated guest opening the door for ventilation and falling. For failing to keep the premises reasonably safe, the lodge’s contributory negligence was set at 35%, paying out over $250,000 to Buehl’s estate.
Know what risks you’re assuming . . . and do your best to stay safe
There’s an element of risk in almost every activity. And these days, almost everything involves a waiver of protecting establishments from liability if one of their patrons is injured. We often consent to these waivers without giving them the consideration they deserve and without giving much thought to what could happen.
If a defendant is found to have been negligent by not taking reasonable steps to care for your safety, they could be held liable—if only partially—for any injury you sustain as a result. But if there was no wrongdoing, the details of the waiver might absolve them of all responsibility.
With this in mind, it’s important you also take reasonable steps to ensure your own safety. Make sure that if you’re not comfortable with the risks you’d be taking on, don’t participate. Don’t engage in behaviors that will put you or anyone else in jeopardy, don’t try pushing yourself past your physical limitations, and if you drink, drink responsibly.
Have you been hurt while assuming risk?
If you’ve been injured by someone’s negligence, even after signing a liability waiver, you should consult with a reputable personal injury lawyer as soon as possible.
Contact the dedicated team at Mackesy Smye so we can review your case, at no charge, including any waivers you may have consented to, and let you know if your case is worth pursuing.