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Canadian Perspective
Through Legal Eyes
Municipalities across Canada offer
their residents the use of various
recreational facilities, including: public parks,
hockey arenas, soccer pitches, baseball fields, tennis
courts, swimming pools, playground equipment, ski hills,
skateboard parks and mountain bike trails. The use of
these facilities can, and often does, result in injury. Many
municipalities have therefore implemented proactive risk
management procedures to protect themselves from
liability exposure. Waivers, indemnity clauses and varying
insuring agreements are the most common tools used by
municipalities to prevent law suits or to protect against
potential liability.
The waiver, in Canada, like most common law jurisdictions,
is a binding contract in which the user of a recreational
facility agrees to hold the municipality harmless for any
damage to property or person that might be incurred as
a result of their use of the facility. Canadian courts have
historically applied a two-step analysis to determine whether
an executed waiver is valid: is the waiver sufficiently clear
and unambiguous in identifying that the participant is
forfeiting their legal right to sue; and did the party seeking
to rely upon the waiver take reasonable steps to draw the
terms of the waiver to the attention of the participant?
The courts have concluded that it is irrelevant that the
participant does not read and understand the waiver
1
, as
long as they had the opportunity to do so, and were not
operating under a disability or mistake which the enforcing
party had knowledge of.
1
However, to successfully rely
on a waiver, the defendant must prove that the plaintiff
agreed, either expressly or by necessary implication, that
the defendant would be absolved from any liability.
2
Another safeguard used by municipalities to limit exposure
is an indemnity or hold harmless agreement. The
municipality obtains a promise from the user to reimburse
it for any damages, interest or costs, it may be found liable
to pay a third party. As these agreements are generally
between sophisticated parties, there is no requirement to
bring the terms to the attention of the signing party or the
need to advise them to read the document.
3
It would be unsurprising in the UK to hear of a council
importing onerous terms into a hire contract, given the
difficulties they would otherwise encounter in avoiding
liability under the Occupiers’ Liability Act (as the above
example demonstrates). In
Andrew Guy Glenie v (1)
Reginald Slack (2) Ian Barclay
(2000), the operator of a
racetrack handed over control of the circuit to a promoter
for a race meeting, but the occupier and operator did not
escape liability for dangerous hazards in the construction of
the racetrack which breached the sport’s governing body’s
safety standards. The racetrack owner still bore partial
liability for the injury to the claimant, even though all he
really did was hand over the keys. To avoid incurring that
liability, it is safest for the person hiring the premises to
cover all angles from the outset and have liability excluded
in the terms of hire.
The same should, therefore, be said for those hiring the
premises. Any contract entered into in the UK would be
subject to the provisions of the Unfair Contract Terms Act
1977 and therefore open to challenge if unreasonable,
but the advice from a UK perspective would be the same
as from any other perspective, and is based as much on
common sense as any legal prowess: read the small print
before you sign. Prevention is far better than cure, and
the best way to ensure you are protected is to check the
exclusion clauses, and do not sign up to them until they
are fair.
Canada: Seek independent legal advice and consider a UIP
UK Perspective
UK: Prevention is better than cure – check the exclusion clause
A case we worked on (and
successfully defended) earlier this
year involved an amateur football club, run by
volunteers, which hired a sports hall for a fundraising disco.
One of the party-goers took a tumble after slipping on the
dance floor, severely injuring her wrist as a result. A claim
was then brought against both the football club and the
owners of the hall. Long before we got anywhere near the
trial date, one of the most difficult issues which had to be
addressed was this: if the claimant was successful, who
would be liable?
In UK law, these issues are largely governed by the
Occupiers’ Liability Act 1957 (and its subsequent
amendments), which sets out the obligations of a person
“occupying or having control” over premises or fixtures. In
our case, after seeking advice from Counsel, the parties
resolved that liability would be split between the two
Defendants, and apportionment was agreed long before
trial. We (acting for the football club) were able to agree
that the owners of the hall would bear 75 per cent liability
– a surprisingly favourable result for our client. What
made it inevitable that the football club would bear
some
liability (albeit a low 25 per cent) was a term in the hire
agreement which imparted liability on the club – and the
agreement had not been scrutinised by the club chairman
before it was signed. Clearly little thought had been given
to any potential accidents or injuries occurring, and the
emphasis had been on getting the keys to the hall and
arranging the party.
Stephen Hooper is a solicitor with Eastwoods Solicitors in London.
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