In a recent decision of the B.C. Court of Appeal in the case of Niedermeyer v. Charlton (2014 BCCA 165), the court was asked to decide whether a waiver signed by someone who was subsequently injured in a motor vehicle accident could operate to prevent that person from recovering damages for the injuries she sustained.
The facts of the case were that the plaintiff, a tourist from Australia, signed up to go on a zip line tour in the valley between Whistler and Blackcomb mountains. Prior to embarking on the tour, the plaintiff signed a waiver that attempted to release the tour operator from activities one would expect to undertake on a zip line tour, including travel to and from the tour areas. Unfortunately, as the plaintiff was returning to Whistler Village from the tour area, the bus on which she was a passenger left the roadway, overturned, and fell down a hill. This resulted in the plaintiff sustaining significant injuries.
The plaintiff commenced a B.C. Supreme Court action against the driver and owner (the tour company) of the bus, seeking to recover compensation for her injuries. In the Supreme Court, the judge hearing the case determined that the waiver the plaintiff had signed meant that she had surrendered the right to recover damages as a result of the negligence of the defendants. The plaintiff appealed that decision.
The Court of Appeal, in a 2-1 split of the judges hearing the case, overturned the Supreme Court judge's decision and remitted the case back to the Supreme Court to determine the value of the plaintiff's damages.
Interestingly, the majority decision in the Court of Appeal turned on the auto insurance regime that exists in British Columbia. The reasons for judgment of the majority decision went through a detailed analysis of the intended purpose of the government giving ICBC the right to provide universal compulsory vehicle insurance in British Columbia. Ultimately, the court found that the public policy goal sought by the legislature in giving ICBC this power was to ensure safety on our roads and to give access to compensation for those who suffer losses when accidents do happen. The court further found that the legislature did not intend to allow vehicle owners and operators to be able to use a waiver to exclude the operation of the universal compulsory insurance scheme in B.C. As a result, the court ruled that waivers that attempt to release liability for motor vehicle accidents are contrary to public policy and unenforceable in B.C.
If you have been involved in a car accident, contact us to set up a free consult with one of our personal injury lawyers.