The rich geographic splendour of British Columbia is home to a thriving adventure sports industry. From backcountry skiing in the Kootenays, to climbing in Squamish, to surfing in Tofino, people from around the world come here to take part in extreme sports.
Participating in adventure sports is a risk-filled activity and the industry has undertaken steps to minimize both the safety risk to its participants as well as legal risks that may befall both participants and organizers. In the more established alpine ski industry, liability waivers are commonplace (see Letter of the Law, Summer 2011). A precise and visible waiver will often be upheld by the courts to relieve operators from the liability of the participants in activities, as the 2013 decision, Morgan v. Sun Peaks Resort Corporation, indicated.
In many adventure sports, a safety precaution employed is for participants to choose buddies to monitor one another during the course of the activity. Earlier this year, the B.C. Supreme Court was faced with whether to impose a legal duty of care, not on the organizer of a heli-skiing vacation but rather on one of the participants, whose buddy had suffered a fatal accident involving a tree well.
The facts on which Madam Justice Fisher based her decision in Kennedy v. Coe were not complicated. The plaintiff’s husband, Mark Kennedy, a trial lawyer from Colorado, was participating in a heli-skiing trip near Blue River. Each participant paired with a buddy to monitor and watch each other in case one became lost. Mr. Kennedy and the defendant, Adrian Coe, an avid skier from England, were assigned as buddies on a run known as Norbert’s Nose. Mr. Coe skied through a log cut first. After arriving at the bottom, he looked up the slope and did not see Mr. Kennedy. Mr. Coe notified the group’s guides who began a search. They found Mr. Kennedy unresponsive in a tree well four minutes after they had started the search.
The principal issue before the Court was whether to impose a duty of care on Mr. Coe for the loss of the plaintiff’s husband. On the facts before her, the judge declined to do so. In reaching her decision, she noted that Mr. Kennedy had voluntarily sought to engage in a high-risk sport with knowledge of its inherent risks.
She further noted that, although Mr. Coe had an ability to control the speed of the rescue response after losing sight of Mr. Kennedy, he had no ability to control the risk of falling into tree wells or the consequences once Mr. Kennedy fell into the well. Ultimately, Justice Fisher recognized that a skier does not owe a duty to care for his or her buddy without evidence of a specific instruction or a defined mutual understanding of their roles and responsibilities throughout the skiing terrain.
In reaching her decision, the judge recognized that individual participants in adventure sports should bear the risks inherent with their sport and not those whose function is merely to improve the safety of the activity. Such a recognition will continue to allow for the growth of the adventure sports industry in British Columbia in the coming years.
For more information on liability waivers in adventure sports and on insurance law in general, please contact Daniel.