A liability waiver is a legally binding contract in which a person agrees not to hold another party responsible or liable for any harm, injury, or damages that may occur in certain circumstances.
Liability waivers are commonly used in various situations where there is a potential for risk or injury, such as participating in extreme sports, engaging in recreational activities, undergoing medical treatments, or attending events or activities organized by others. The purpose of a liability waiver is to shift the legal responsibility from one party to another, often protecting the party being released from potential lawsuits or claims.
But should you sign a liability waiver? And is there any legal recourse for you, once you have? Below, we give you the facts about this process and teach you all you need to know before signing a liability waiver in Ontario.
What Is A Liability Waiver?
A liability waiver is a written agreement stating that if something goes wrong or if the person signing the waiver gets injured or suffers losses, they cannot hold the other party accountable or seek compensation for any resulting harm.
By signing a liability waiver, the individual acknowledges the potential risks involved and voluntarily assumes the responsibility for any potential consequences.
Generally, liability waivers will include the following elements:
- Event: A description of the circumstances of the event/activity.
- Date: The date when the agreement takes effect.
- Releasor: The releasor is the person who signs the waiver, promising not to sue or take any legal action even if they suffer injury, loss, or damage as a result of their attendance or participation.
- Releasee: The releasee is the person/ institution being absolved of legal blame for any ensuing incident or injury. They are the party/parties who would otherwise potentially be liable and possibly sued.
- Governing law: The province under which the agreement will be governed.
Common Examples of Where Liability Waiver Forms may be utilized.
Here are some common examples of activities where you may be required to sign a liability waiver:
- Extreme Sports:
Before participating in activities such as skydiving, bungee jumping, rock climbing, or snowboarding, individuals are often required to sign liability waivers. These waivers protect the organizers, instructors, or facilities from being held responsible for any injuries or accidents that may occur during these high-risk activities.
- Recreational Facilities:
When using recreational facilities such as gyms, fitness centers, swimming pools, or trampoline parks, individuals may be asked to sign liability waivers. These waivers aim to release the facility owners from liability in case of injuries or accidents that may happen on their premises.
- Events and Festivals:
Attendees of events, festivals, concerts, or sports games may be required to sign liability waivers to enter the venue. These waivers protect event organizers and sponsors from potential legal claims if attendees suffer any injuries or damages during the event.
- Rental and Equipment Use:
When renting equipment such as bicycles, scooters, cars, or boats, rental companies often have customers sign liability waivers. These waivers protect the rental company from liability if the equipment is damaged or if the renter gets injured while using it.
- Medical Procedures:
Prior to undergoing certain medical procedures or experimental treatments, patients may be asked to sign liability waivers. These waivers acknowledge the potential risks and release the medical professionals or institutions from liability in case of complications or adverse effects.
- Volunteer Work:
Individuals who volunteer for organizations or participate in community service projects may be asked to sign liability waivers. These waivers protect the organization or project organizers from liability if volunteers are injured or experience any harm during their volunteer activities.
- Personal Training and Fitness Classes:
When hiring personal trainers or participating in fitness classes, individuals may be required to sign liability waivers. These waivers protect the trainers or fitness centers from liability in case of injuries or accidents that occur during the training sessions or classes.
What You Need To Know Before Signing A Liability Waiver Form
Firstly, no one can force you to sign any legal documents, including a liability waiver. If you decide to sign one, you need to understand that a personal injury waiver is a legally binding contract that is generally enforceable if it is properly drafted, clear, and brought to the attention of the individual signing the waiver.
While there are some exceptions to this, it is important to fully understand the inherent risks in the activity you will engage in after you sign the waiver.
Secondly, despite anything they may tell you, there is always the possibility (although greatly reduced) of brining a lawsuit and making a future claim despite signing a general liability waiver form.
The Exception To The Rule – Legal Claims After A Liability Waiver
Few people realize that they still have possible legal recourse even if they signed a release form. This is what the other party is counting on – ignorance of how the law works.
While the law in this area complex, there are situations where a waiver may not prevent you from brining a personnal injury claim.
Even if you have signed a liability waiver, it does not absolve the business or other party from liability in cases of gross negligence, intentional harm, or reckless behavior. If the other party’s actions fall into these categories, you may still have legal recourse despite signing a waiver.
The Occupiers Liability Act in Ontario sets out the responsibilities of occupiers (owners or those in control of premises) towards visitors or participants. While liability waivers may be used to limit an occupier company’s liability, they may not completely exempt them from their duties of care.
Courts in Ontario may refuse to enforce a liability waiver if it goes against public policy or is deemed to be unconscionable. This can occur if the waiver attempts to exclude liability for harm caused by illegal activities or if the court that it is oppressive or unfair to one party.
Liability waivers forms may not protect professionals, such as doctors or healthcare providers, from civil claims of professional negligence. The standard of care expected from professionals often cannot be waived through a liability waiver.
A liability waiver form does not necessarily diminish the duty of reasonable care, that the other party owes to you. They are still required to act reasonably and take necessary precautions to ensure your safety, regardless of whether a waiver has been signed.
Preparing To Sign A Liability Waiver Form
You can’t be forced to sign a release of liability.
However, you may be prevented from engaging in the activity, being present on the premises, using the services, or receiving a treatment that the legal document in question pertains to if you don’t sign the release forms.
So, you may choose to go ahead and sign it. But before you do, keep the following in mind.
Know The Potential Risks Involved In The Activity
Has the other party/event organizer explained the process of your participation to you? Do you know which precautions and safety measures you need to take? Lastly, did they make you aware of the inherent risks involved in the activity?
If not, it is your responsibility to enquire about these precautions and the risks you’ll be facing, however small they may be.
Make An Informed Decision About Signing The Form
Once you have been made fully aware of the risks, and still choose to go ahead with the activity, you’re deemed to be making an informed decision about your participation.
Signing a liability waiver form does not necessarily mean that you have made an informed decision. But the other party will assume that you have.
This is the danger of signing any contract that you don’t fully understand. And it’s why we urge everyone to always consult with legal counsel before entering into a contract with someone.
Can Children Sign Liability Waivers?
As a minor is not legally capable of giving legal consent, for example, they are also precluded from signing liability waivers.
Similarly, mentally incompetent or intellectually disabled people may not be able to make an informed decision.
It currently unclear in Ontario whether or not a waiver of liability signed by a parent or guardian on behalf of a minor is enforcable. If facing this situation contact an experiened personal injury lawyer.
The law surrounding liability waivers is fact-specific and complex. If you or a loved one has suffered personal injury, but signed a waiver of liability, it is wise to speak to a personal injury attorney to help you decide if you can bring a lawsuit.
Signing a liability waiver document often carries with it a heavy price. You may give up the right to bring a potential lawsuit in the event of damages or injury. Always weigh the pros and cons of any such decision, and make sure that you understand the risks involved.
But if you have been injured or suffered damages after signing a waiver form, due to the negligence of the other party, all is not lost. With the aid of a qualified and experienced personal injury lawyer, you may still be able to take appropriate legal action to institute a lawsuit.
For more information on this issue, or to set up a consultation regarding civil litigation laws, contact us today.