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Many sports involve risks inherent in their practice, whether hockey, football or skiing.

Recreational activities also carry risks of accidents or injuries. For example: snowmobiling, MOUNTAIN BIKING, horseback riding, trampoline or bungee jumping.

What is the theory of acceptance of risk and is a lawsuit possible despite the existence of an exclusion of liability clause?

 

Acceptance of the risks of a sport by the victim

In general, according to the theory of risk acceptance in sports matters, the person who participates in a sport accepts the foreseeable risks of the activity. This theory is often argued by the defendant in a civil liability action.

In addition, many companies include a notice or limitation of liability clause in the event of an accident in a form that participants must sign. However, such a clause is not always valid and does not prevent the possibility of a civil remedy if you have suffered bodily injury.

accident-parachute-risk

Indeed, the risks that you accept by practicing an activity are limited to those that are predictable, reasonable and inherent in the activity and exclude those that are unreasonable or abnormal.

Similarly, in the event of misconduct by a third party, a civil suit is possible.

Indemnification and the exclusion of liability clause

The Civil Code of Québec clearly states that the risk acceptance clause does not prevent the perpetrator of an injury from being prosecuted.

We remind you that in matters of civil liability, it is always necessary to prove fault to bring a lawsuit. In this regard, the Court of Appeal explained that:

The victim may nevertheless engage the responsibility of the perpetrator by demonstrating that the latter did not act diligently by exposing him to abnormal risks. Thus, the defendant’s conduct that would contravene the usual rules of an activity and that would expose the victim to unreasonable risks will be considered to be at fault.

Slip accident and acceptance of risks

Here is an example of an accident that occurred during a tube slip activity. It is very hot during the day, and once evening comes, the track freezes, which increases the speed of the tubes on the slides. The clerk does not wait enough time before sending the tubes into the track and one of the tubes leaves the track because of the icy state of the place. The victim suffered a broken leg and a concussion. The slip centre claims that it is in no way responsible for the accident and that the victim has accepted the risks associated with the activity.
accident-slide-tube

Despite the pretension of the center, there is a fault that is committed. Indeed, the accident was not caused by the normal realization of the risk of the sliding activity, but by an aggravation of the risk that was caused by the wrongful conduct of the clerk.

The operator of the centre should have taken the appropriate measures to secure the premises or close the more dangerous runways. Indeed, it has an obligation to make available to users tracks free of traps, given the normal predictability.

On the other hand, it must be remembered that his general duty of care does not impose on him the obligation to protect all his customers from any possibility of accident.

Legal action for your bodily injury

The facts of each cause are different and depend on the differentcircumstances of the accident, such as:

  • The level of experience and competence of the victim;
  • The presence of specific warnings (e.g. posters);
  • The victim’s knowledge of the premises.

If you are the victim of a sports or recreational accident, we invite you to contact us without delay to assess whether you have a remedy.

Please note that we accept percentage pricing in the majority of our files.

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