When a Liability Release Agreement is not a Release
Often when you take part in an activity that has some element of danger to it, or some possibility of causing injury, you will be required to sign a Liability Release Agreement, or a waiver. Without signing it you will not be allowed to participate. Often these agreements will operate to prevent you from being able to seek compensation if you are injured while participating in these activities.
A different result occurred in a recent British Columbia Supreme Court case, Cooper v. Blackwell. In this case Mr. Cooper was killed in a hunting accident while he was participating in a guided grizzly bear hunt. Mr. Cooper was accident shot and killed by a guide during the course of the hunt. The parties applied to the court to determine whether the Liability Release Agreement applied to the claim that was brought for damages as a result of the death or not. The accident that resulted in Mr. Cooper’s death occurred on the third hunting trip that he took with the defendants. On the first two hunting trips he signed a Liability Release Agreement. The third trip was one which was provided to him without charge because of the previously unsuccessful trip and the defendant neglected to get him to sign a waiver for that trip.
The defendant’s argued that regardless of whether he had signed a waiver specific to the trip on which he died, the waiver should apply to eliminate his right to compensation on the basis that this trip was simply a continuation of the earlier trip for which he had signed a waiver. They also argued that the parties had a history of dealing on the basis of particular written terms, the Liability Release Agreement, and such terms should govern their legal relationship.
The judge did not agree with either argument, noting that as a matter of general principle, releases and exclusion clauses are subject to rigorous scrutiny before being enforced by the Court and require express notice and clarity of language. The Court also noted that as a matter of law, waiver requires an unequivocal and conscious intention to abandon rights and there was no evidence of such intention for Mr. Cooper regarding the hunting trip on which he died.