It’s the holidays and you’re going to zip line with your family in an adventure park. When you arrive at the scene, a representative makes you sign a notice that you read briefly. In the middle of the course, you fall, while you were clinging to a rope stretched between two trees. You notice that the rope gave way and that’s what caused your fall. Shortly after, the representatives of the establishment announce that they will not have to compensate you since in the notice you have signed, you have accepted the risks related to the activity and their responsibility is therefore not engaged.
What remedies are available to you in this type of situation? We explain your options using case law examples for various types of recreational activities, such as skydiving or the use of all-terrain vehicles (ATVs).
Acceptance of risk and disclaimer
You should know that most centres offering recreational services involving several risks have a “release” notice signed before letting you participate in the activity.
This document, although it does not really allow companies to absolve themselves of all responsibilities towards you, nevertheless retains a certain importance. Indeed, it acts rather for informational purposes in order to inform you about the risks to which you expose yourself by deciding to take part in the sports or leisure in question. In this way, users can make an informed commitment by freely and informedly consenting to the foreseeable risks they may face.
For more information about risk acceptance theory, you can read our article dedicated to this topic.
Skydiving accident
Aerial recreation organizations are accustomed to having risk reporting documents signed. Users are then informed of the importance of paying attention during training and following the instructors’ instructions to the letter. They also warn clients of the types of injuries that could occur, even if all instructions have been followed and all precautions have been taken.
Thus, in one case, the plaintiff’s claim for compensation for a fractured leg was rejected by the Superior Court. Indeed, the Parachuting School had demonstrated that clear and complete training had been given and that the equipment provided was in good condition. The Court ruled that the recreation centre had discharged its safety obligation and acted diligently. Therefore, no fault had been committed. The accident occurred when the plaintiff decided to land with the wind at her back when the opposite was recommended by the instructors. The judge concluded that the victim had been the perpetrator of his own misfortune.
In the event that the parachuting centre had committed a fault, for example, by providing defective equipment, as we will see in the next file, the notice of exclusion of liability would have been of no recourse. Indeed, this type of situation does not represent a foreseeable risk that a reasonable user would have to accept.
All-terrain vehicle (ATV) accident
In this tragic case, a 17-year-old passenger lost his life in an ATV accident while his 16-year-old friend was driving the vehicle. The victim’s family sued the victim, but the defense was able to show that it was more of a mechanical breakdown. Indeed, the evidence revealed that the vehicle in question had been repaired by a mechanic 2 days before the accident and that the latter had acted negligently, since he did not report a defect in the vehicle. Young drivers were aware of the risks they faced, but equipment breakdown was not among them. The Court therefore ordered the mechanic to fully compensate the family of the deceased.
The age of the participants is also an important factor to consider when analyzing such records. Let’s take the example of parents who had let their children go mountain biking with their neighbors. They had left them to drive alone and one of the children injured his hip while losing control of the vehicle. The defendants argued the theory of risk acceptance by alleging that the children were able to foresee and consent to the dangers associated with the activity. The Court concluded, however, that they had breached their monitoring obligation and that they had more experience and therefore a better knowledge of the hazards. In short, the more experienced a participant is, the more diligently they are expected to act to minimize their damage.
The owner of land used for the use of ATVs must also ensure that he provides obstacle-free and cleared tracks so as not to create traps for the drivers, failing to be considered responsible for the damage caused to them. On the other hand, a user who ventures off the trail provided for his purpose and who is subsequently injured may find himself without recourse to the courts, at the same level as an apprentice parachutist who would defy the instructions given by his instructor.
Trampoline accident
It is a fact known to all: trampoline jumps are conducive to strains and fractures. The majority of people taking part in activities involving trampolines have no difficulty in appreciating the risks associated with this sport, even if they are a beginner.
Situations that could engage the responsibility of instructors or facilitators are therefore generally linked to their obligation to supervise the premises. This obligation is an obligation of means, in the same way as that of doctors or rescuers. They must therefore ensure, to the best of their abilities and knowledge, the safety of the participants. This includes, of course, providing facilities in good condition, but also ensuring that users do not take any action that could put their safety or that of others.
It is important to keep in mind that each case is a case in point and must be analysed taking into account all the elements that constitute it.
Do not hesitate to contact our firm for more information.