« To accept a risk, one must already be aware of its existence and consent to it with full knowledge of all the facts. »
It’s 7 a.m. on Sunday and the phone rings. My best friend asks me if I want to replace her colleague at the trendiest obstacle course that has just opened. The catch: the event is in two hours. No problem; after all, you only have one life to live!
On site, I am asked — required rather — to sign a release form in the event of injury, dismemberment, and even death. Two thoughts come to mind:
- Is the obstacle course made up of flame throwers and crocodiles?
- Am I required to sign?
A legal matter
First off, under Article 10 of the Consumer Protection Act, a merchant is prohibited from being liberated from the consequences of his own act or the act of his representative. Thus, this law disallows the merchant from being discharged of all liability.
Furthermore, Article 1474 of the Civil Code of Québec states that a business may not in any way exclude its liability for bodily or moral injury caused to another. In the event of property damage, you will need to prove that the damage is the result of gross negligence or wilful misconduct. It should be noted that most liability insurance contracts do not cover liability resulting from gross negligence or wilful misconduct.
Depending on the situation, the act of signing the release form has no effect of the possibility to sue.
Accepting the risks
Most sports activities require that participants sign a release form. In doing so, event organizers make sure (sometimes in an indirect manner) that the participants acknowledges the risks associated with the activity and accepts them.
To accept a risk, one must already be aware of its existence and consent to it with full knowledge of all the facts. According to the Barreau du Québec, the true test in determining whether the risk is inherent to the activity is to ask yourself: “Is what happened attributable to the sport (or the activity)?” For example, if you were to twist an ankle in a mud race, you can say that “it’s attributable to the activity”. On the other hand, if you a piece of the bleacher falls on your head during the obstacle course, it is not attributable to the activity.
Equipment under surveillance
Sports equipment owners must take the measures necessary to prevent an event in which the danger was foreseeable and avoidable from happening. In other words, the organizers must take all suitable precautions to monitor and prevent undue risks associated with their equipment from occurring.
Activity organizers must have an in-depth knowledge of the Public Buildings Safety Act and the Act respecting safety in sports.
In closing, if you must sign the release form in order to participate in your event, make sure to know all the risks that come along with it. If you’re not sure, don’t hesitate to ask for more information. In the event of bodily injury or if the organizer has committed gross negligence, do not fear! The law will be on your side.