A waiver is a legally binding intentional decision (usually documented) to forgo certain rights and claims when engaging in activities that may contain risk to oneself. Signing one can affect your ability to claim for personal injury against those responsible. It is important to hire a personal injury lawyer to be well informed of your rights.
A waiver, as it pertains to personal injury, is meant to protect the one enforcing it against the risk or probability of a financial lawsuit. While each case is different, the courts can use certain criteria to judge whether or not it can be enforced.
A waiver should be precise, ensuring that the specific act or omission is clear and legal. Public policy can void a waiver where there is gross criminal negligence and the law takes a few issues into consideration when a waiver is challenged.
Circumstances: Upon signing a waiver, ample advance notice needs to be given to the signee. It helps to know whether or not this is the first time that the individual is signing the type of waiver. Also, the signee should be aware of the content of the waiver and be given enough time to read it.
Signee: Many factors are considered when the individual who signed the contract is scrutinized. Dependants and minors may not have the mental capacity and understanding to be under contract. Their rights are separate from their parents/guardians and cannot be waived unless the court approves. While the onus is on the potential plaintiff to read and understand the waiver, the defendant still has the responsibility to ensure that the person is not vulnerable, ignorant or under any sort of distress when signing.
Content: A look at what exactly is being excluded in the waiver is necessary to determine whether or not it is valid and legal. Signing a waiver should protect both parties and while signing one does not mean that you are signing your life away, it does severely impede your right to sue based on your particular case.
Crocker vs Sundance Northwest Ltd is one of the more memorable personal injury cases that was fought all the way to the supreme court of Canada. It was a very interesting case that encouraged much deliberation since it covered a popular and common sporting event, liquor, culpability and rationale.
The Sundance Spring Carnival had many events to entertain their patrons and inner tube races were part of that. It required a team of two people to race down a hill on an inflated inner tube, and speed and completion (both parties still in the tube) were judged.
The plaintiff, Mr W Crocker under willing and clearly visible alcoholic influence signed a release without reading it, assuming that it was all part of registration. It was similar to the one attached to his seasonal pass to the property and he thought nothing of it. After successfully completing his first heat he sustained a cut above his eye from being thrown off during the activity. Management and staff were aware of his injury and his intoxication, made mention of it to him, suggesting that he not continue in the races but did nothing physically to stop him when he became agitated and insisted on completing the race. During his second race, he crashed and was flown from the tube, landing on this head and unfortunately broke his neck. He is now a quadriplegic.
Mr. Crocker filed a personal injury suit against Sundance and was awarded two hundred thousand dollars in compensation. The court found that based on the circumstances, Sundance did not take the necessary steps to ensure that Mr Crocker was aware of or even read what he was signing, and ignored his obvious physical and mental state at the time. They also found that Mr. Crocker willingly put himself in a dangerous position and found him twenty five percent liable for his accident (which was offset from the final figure awarded).
Many of us may take for granted documents that we sign when it comes to common activities. It is important to read these documents carefully because we may put ourselves in situations where our simple right to be compensated and protected is taken away. Call us at Rastin & Associates for a free initial consultation.