How incorrect details can nullify liability waivers

Limitation of liability language seems to be everywhere. When people pay to do things that have risk — such as a go-kart ride or a ropes course — they must often sign waivers saying the service provider has no or limited liability if something goes wrong. Limitation language is in pretty much every agreement for online services. But do they really limit the liability of the service provider if the person suffers a loss or injury?

The short answer is that a properly drafted limitation clause can indeed limit the provider’s liability. But as a British Columbia mountain guide company found out, not if it is signed in an imprecise or inaccurate manner.

Mountain climbing waiver

In the case of Mitchell v. Manson, the British Columbia Court of Appeal found that a digital waiver signed by a customer who was injured in a mountaineering accident was not effective. The problem wasn’t the wording or nature of the waiver. The problem was that the signed waiver contained the date of an earlier climb of the customer, not the climb he was injured on.

One liability waiver, 3 climbs

The first time the customer climbed with the guide, the customer signed an online waiver that referred to the date of the climb. The customer also filled in various information about himself including contact info, health info, and other info that could be relevant if something went wrong. They went climbing two more times within a few weeks. A new waiver was not signed for either of those. On the third climb, a dislodged rock caused both the guide and the customer to fall. They were both injured and evacuated by helicopter.

The customer sued, and a summary trial took place on the issue of whether the signed waiver was effective. The trial court decided, and the court of appeal agreed, that the waiver applied only to the first climb because it contained only the date of the first climb. In other words, the guide company could not limit its liability for this incident by the waiver, and the customer could sue for damages.

The guide company made a valiant attempt in court to argue various reasons why the waiver should apply. The bottom line was that the waiver referred to one specific date, and there were no factual, logical, or legal grounds to extend its effect to climbs on later dates.

Details matter

The lesson is that details matter. A lawyer can draft effective waiver language, but if the process to bind the customer or get the customer to sign lacks precision, that waiver can be useless. It is crucial that the business takes proper steps to make the waiver binding. And as this case shows, it is crucial that waiver language is clear about what activity it applies to. Having a customer fill in details without the business checking to make sure the details are correct and effective is risky.

David Canton is a business lawyer and trademark agent at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.

Image credit: ©Cavan for Adobe – stock.adobe.com