B.C. Court Upholds Waiver of Liability

Written on January 2, 2013.

In the recent decision, Niedermeyer v. Charlton, the British Columbia Supreme Court decided that a signed waiver absolving a driver of any liability can prevent a Plaintiff from claiming and collecting damages pursuant to the province’s automobile insurance scheme.

The Plaintiff, Karen Niedermeyer, a teacher from Singapore, was returning from a zip-lining activity with six of her students when the bus they were in strayed off the road, overturned and then descended down a hill.  The bus transportation was included in the zip-lining activity for which she signed a release and waiver. 

Niedermeyer argued that it was her understanding that the waiver dealt solely with the zip-lining activities and not with the bus transportation.  Furthermore, she argued that a release that would disengage benefits afforded by the BC statutory automobile insurance scheme would be contrary to public policy and unconscionable.  She further argued that such onerous terms should have been brought to her attention.  The Defendants, William Charlton and Ziptrek Ecotours admitted liability but took the position that the signed release and waiver barred the Plaintiff’s claim as it absolved them of any liability for any damages arising from their negligence.

Justice Armstrong of the British Colombia Supreme Court interpreted section 76(2) and (3) of BC’s Insurance Vehicle Act to mean that the province’s auto insurance plan would entitle a person to insurance money collected pursuant to this scheme, if and only if, a judgment is obtained or a settlement is reached.  Therefore, by virtue of the Plaintiff releasing the Defendants from all claims, she did not retain a claim for indemnity and thus, was not entitled to the benefits accorded by the statutory scheme.  It was found that the release did not affect public policy or the statutory automobile insurance scheme as it only dealt with the right to recover damages from the Defendants due to negligence.  The Court also found that the Defendants were not obliged to point out the waiver clauses.  It noted that the release was a single page in length and relatively easy to read.  Furthermore, there was no evidence to suggest that the Plaintiff had an insufficient amount of time to read the document.

Waivers of liability are used in various aviation related endeavours – heli-skiing and ballooning to name two. This decision is instructive on the view Courts take towards the use of such instruments.

This case is under appeal.