Ski-hill Lift Tickets – Liability, Unilateral Contracts, Negligence Exclusion

In certain situations, such as obtaining a lift ticket for a ski-hill, “unilateral contracts” are used by one of the parties to the contract (i.e., the ski hill) which set out specific conditions the other party (i.e., the consumer) must accept if the consumer wants to proceed with using the ticket.  Are all the terms and conditions of these unilateral contracts binding on the consumer even if the consumer did not sign or have any part in the formation of the contract?

A recent case from the British Columbia Court of Appeal (“BCCA”) Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78 [Apps] addressed the requirements for unilateral contracts to be binding when the consumer does not sign a contract.

The unfortunate facts of Apps are as follows.  The plaintiff was a snowboarder who became a quadriplegic after attempting a large jump at Grouse Mountain in Vancouver, BC.  The plaintiff was an Australian who was living, working and snowboarding in Whistler, he was only 20 at the time of his injury.

The plaintiff alleged that the jump was negligently designed, constructed, maintained and inspected by Grouse Mountain. Grouse Mountain, in defence, relied on an exclusion of liability waiver which it said constituted a complete defence. The British Columbia Supreme Court (“BCSC”) dismissed the plaintiff’s action. The BCCA overturned the BCSC’s decision.

The type of waiver Grouse Mountain was relying on was an “own negligence exclusion”.  This type of exclusion not only excludes liability for the risks inherent in the use of Grouse Mountain’s product or service, but also liability for negligence caused by Grouse Mountain itself.

The BCCA stated that “own negligence exclusions” are among the more onerous conditions to be placed into contracts, meaning that for Grouse Mountain to rely on the exclusion it must have taken reasonable steps to bring the exclusion to the attention of the Plaintiff.

The BCCA concluded that not enough had been done by Grouse Mountain to bring the “own negligence exclusion” to the plaintiff’s attention before he entered into the contract. The exclusion was included in a posted sign above the counter where the lift tickets were sold, but the text was difficult to read, and the “own negligence exclusion” was not emphasized.  This would be considered the pre-contractual notice (before the ticket was purchased).  Post-contractual notice (after the ticket was purchased) of the “own negligence exclusion” appeared on the back of the lift ticket and on a sign in the terrain park.  The BCCA concluded that post-contractual notice has no bearing on whether Grouse Mountain gave sufficient notice to the Plaintiff.

Grouse Mountain also attempted to rely on the plaintiff’s knowledge of the presence of these types exclusions due to his previous employment at Whistler and having signed such an exclusion for his Whistler’s Season Pass.  The BCCA found that the plaintiff’s previous experience with “own negligence exclusions” from his experiences at Whistler did not mean he had actual knowledge of Grouse Mountain’s specific clause.

The BCCA therefore overturned the BCSC decision and allowed the plaintiff to continue his action.

For businesses that are concerned about what proper notice would look like, the BCCA provided some indicators of proper notice.  To rely on any type of waiver which will result in the consumer losing legal rights, a service provider should, before contract formation, ensure that the “own negligence clause” is clearly brought to the attention of the consumer by using large, colorful and bold text and literally mention the “own negligence clause” to the consumer.

Confidentiality of Medical Records

You have recently been injured due to another person’s negligence (the “Incident”). The injuries are ongoing and starting to affect your daily living. You are considering starting a lawsuit but are hesitant because of a story you heard from your friend when they started a lawsuit. The friend told you that all of their personal information was no longer private, even the conversations they had with their doctor.

The truth of the matter is that the legal process is both private/confidential as well as public. The confidential portion of the legal process is that information you share is only made available to your lawyer and the opposition’s lawyer. There are very strict rules controlling lawyers and how they deal with information provided to them by clients. The public aspect arises if a lawsuit goes to trial, the public is at liberty to watch the trial and read any decisions that a judge makes with regard to the lawsuit. Quite often, especially in cases involving personal injury, one’s medical information becomes relevant and therefore potentially available to the public.

When it comes to medical reports not all of one’s medical history is necessarily relevant. A lot depends on the nature of the lawsuit one brings. For example, if from the Incident you are claiming that an injury to your arm is affecting your livelihood, then medical records pre-dating the Incident that relate to your arm should be disclosed.

The reason your medical history is disclosed is because it is necessary during the legal process to determine how much the Incident actually contributed to your current ailments.

The courts will always try to balance the privacy interests of plaintiffs against necessary document disclosure to ensure a fair trial. Only medical records that are considered relevant should be disclosed.

What is the Duty of a Driver to Yield to an Emergency Vehicle?

 

When travelling on a roadway or highway it is inevitable that you will encounter an emergency vehicle.  What are your obligations on the road in relation to this emergency vehicle?  Section177 of the British Columbia Motor Vehicles Act (MVA) states:

On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed.

 

In short, section 177 states that if the emergency vehicle is giving an audible signal and showing a visible signal there is an obligation on drivers of the road to yield to the emergency vehicle.  However, as stated in the BC case of Watkins v Dormuth, 2014 BCSC 543:

“The duty imposed by s. 177 of the MVA to yield to an emergency vehicle is not absolute. A driver must have time to perceive and react.”

 

In Watkins, a police officer crashed into another driver while attempting to overtake the vehicle.  The police officer claimed that the other driver should have pulled over by virtue of s.177 of the MVA.  The court placed 100% of the blame on the police officer as the police car was behind her for only a short period of time. The driver of the police car did not show that this time was long enough such that a reasonably alert driver would have perceived the lights and sirens of the police car and pulled over.

Emergency vehicles do not have free rein in exercising their driving privileges.  They are constrained by the duty to drive with regard to due safety.

 

If you would like legal advice as a result of a car accident, please contact Heath Law LLP at 250-753-2202 or Toll-free: 1-866-753-2202.

Surveillance, Cyber Searches and Social Media

Most personal injury lawyers will warn you to close down your social media accounts, or limit access, once you commence your personal injury claim. While such advice is not misguided, it generally only applies to select claims: those involving alleged catastrophic losses or those involving litigants who appear to be untruthful.

The reality is that insurers do oftentimes hire surveillance teams to monitor the day to day activities of individuals with personal injury claims. These individuals will often follow litigants as they complete everyday tasks such as grocery shopping, driving, or going to the gym.

In addition, most insurers have internal or external teams to conduct what are known as “cyber searches”. These searches compile all of a litigant’s social media information, as well as additional information (such as land title searches and previous lawsuits) into a tidy package for the defence.

While the above appears to be a complete invasion of privacy, it is commonly used and permitted by the Courts. Again, however, it tends to only be collected, or used, when a case is catastrophic or where there are serious concerns about a claim.

For instance, if you are involved in a minor motor vehicle accident but tell your doctor that you can no longer walk, be assured that surveillance may be placed on you.

Surveillance and cyber searches only become useful to the defence if you are caught misrepresenting the extent of your injuries. In the above example, if surveillance or cyber searches show you running a marathon, you can bet that the evidence will be introduced at trial to harm your case.

It is recognized that social media is an important part of most people’s lives, and helps keep them connected with friends and family. When commencing a personal injury claim, it is important to discuss the extent of your social media use to determine whether any restrictions need to be put into place in your specific case.

For a free consultation about your personal injury claim, contact Heath Law LLP.

If you were working at the time of the accident it is very important to determine if the other motorist involved in the accident was also working. According to the laws of British Columbia, special rules apply where both you and the other motorist involved in the accident were both working. In such a scenario, if you were injured and suffered loss and expense including a loss of income you can only seek compensation through WorkSafe BC.

There are strict timelines associated with your potential claim. The Workers Compensation Act of British Columbia places a three month limitation on claiming compensation through WorkSafe BC. This means that there is a short time frame to act to preserve your legal rights.

If the other motorist was not working at the time of the accident, then you can elect to make a claim through WorkSafe BC or make a claim against the other motorist through ICBC. The compensation systems under WorkSafe BC and ICBC generally yield very different results. If you have been in a car accident, you should contact Heath Law LLP to discuss your options.

Call 250-753-2202 or Toll Free: 1-866-753-2202

After a motor vehicle accident it is very important to gather the appropriate information in case of a he said/she said battle over legal responsibility or liability.

Assuming that you do not need emergency medical attention after the motor vehicle accident you should look at and record the other driver’s licence number, the licence plate of the vehicle that hit you as well as their insurance information. It is worth stressing the importance of verifying the other driver’s licence number and not just asking for their name. This will remove the chance of the other driver providing you with a phony name. Take a picture of the other vehicle (and licence plate), the other driver and the other driver’s licence.

Also, take pictures of the scene of the accident, which would include any damages to vehicles as well as the position of the vehicles after the accident. If there are any 3rd party witnesses, their information and identity should be recorded to provide their account of the accident if there is a battle over liability.

After the accident there are also different entities that you should contact. Right after the accident you should contact ICBC. At this initial contact you should provide ICBC with the information that you gathered at the scene of the accident. Also, it may be necessary to call the police after the accident. If it is a hit-and-run accident you must contact the police; by calling the police you create a record of the accident which can be of assistance later on in the ICBC process. Finally, you should contact a personal injury lawyer. The lawyer will act on your behalf, guide you through the legal process and ensure that you are appropriately compensated from the accident.

If you or someone you know has been in a car accident contact Heath Law LLP.

Once liability (or legal responsibility) for a motor vehicle accident has been determined the remaining question is the quantum or amount of damages to be awarded.  There are 5 different heads of damages that must be considered in arriving at the final amount: past wage loss, future wage loss, non-pecuniary damages, costs of future care and special damages.

The legal principle that governs the entire process of awarding damages is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence.

Past wage loss deals with the victim’s lost earnings from the accident up until the point of trial.  This amount is determined through employment records, medical records and any other relevant materials.

Future wage loss is a much more involved process.  Once again employment records and medical records will be relevant.  In addition, high school records, university records and your family history will be reviewed.  The Judge must consider how long you likely would have been able to work as well as how much money you likely would have earned but for the incident.  The Court must consider variables such as the likelihood of your early death, economic downturns and likelihood of another debilitating injury.

Non-pecuniary damages compensate a plaintiff for their pain, suffering, and loss of enjoyment of life up to the date of the trial and in the future. The essential principle derived from the jurisprudence is that an award for non-pecuniary damages must be fair and reasonable to both parties and should be measured by the adverse impact of the particular injuries on the individual plaintiff.  This valuation is completely up to the discretion of the Court. Awards vary a great deal depending on the type of injury and the type of person that was injured.

Costs of future care are awarded on the basis of what is reasonably necessary to promote the mental and physical health of the plaintiff having regard to the medical evidence.  To determine the appropriate award the Court must be satisfied that there is a medical justification for claims of future care and the claims must be reasonable.

Special damages cover a person’s reasonable out-of-pocket expenses they incurred as a result of an accident.  The expenses claimed must be limited to those expenses which are restorative rather than putting the injured person in a better position than before the accident.

In British Columbia, all of the above heads of damages are added together and paid out to the injured party as a lump sum.

Passenger in a Motor Vehicle Collision

A passenger in a motor vehicle collision may experience significant injuries. These injuries may affect a person’s ability to work, go to school, perform household tasks, and his or her ability to engage in leisure activities. If you have suffered injuries as a passenger in a motor vehicle collision, you may be able to receive compensation for your injuries and expenses, including compensation for loss of income, pain and suffering, and the cost of treatment. Generally, you must start a legal action within two years of suffering the injury.

Who to sue?

In some cases, the Court may determine that no one was at fault for the collision. An example of a no-fault collision may be where a deer has unexpectedly run out in front of a vehicle and the driver was not driving negligently when he or she hit the deer. In these circumstances, your lawsuit may not succeed and your only compensation may be the accident benefits available through your insurance company.

However, more commonly, someone is responsible for the collision. As a passenger in a vehicle, the driver of your vehicle or the driver of the other vehicle may have caused the collision or both drivers may be at fault. For this reason, in many cases, an injured passenger will sue both the driver of the vehicle in which they were a passenger and the driver of the other vehicle.

Although it may be uncomfortable to file a lawsuit against your friend or a family member who was driving the vehicle, that person will likely have insurance coverage that will respond to your claim. The driver’s insurance company will, in almost all cases, provide the driver with legal representation and will cover the amount your claim up to the limit of the driver’s insurance policy.

If you are found to be partially at fault

In some circumstances, a passenger may be partially to blame for the injuries he or she suffers. For example, if you did not wear your seatbelt or if you did so incorrectly, a Court may find that you were partly at fault for any injuries that you experienced. If the insurance company is able to establish that your injuries would have been less serious if you had been properly wearing a seat belt, the amount of your damages could be reduced.

Soft tissue injuries are a very common type of injury affecting muscles, ligaments and tendons. These injuries often arise from motor vehicle or slip and fall accidents and can, due to the potential for significant pain and discomfort, have a substantial effect on a person’s ability to function in their everyday life. Although soft tissue injuries can often resolve on their own, or with appropriate treatment, sometimes they can be long-lasting or permanent.

Compensation for Soft Tissue Injuries

As soft tissue injuries can cause pain or discomfort, they can prevent a person from enjoying the same activities they had before the injury. A soft tissue injury may also affect a person’s ability to work, or the ability to work to the same extent as he or she had prior to the injury. People who are suffering from soft tissue injuries may be entitled to compensation for the effect the injury has on their lives. This may include compensation for lost wages, future earnings, pain and suffering, and any out-of-pocket expenses that the individual incurred to treat the injury.

Receiving Compensation for Soft Tissue Injuries

Although soft tissue injuries can be significant injuries, unlike broken bones or other visible injuries, they are often very difficult to prove. Often there are no observable signs of a soft tissue injury and the only person who can give evidence that there is such an injury is the person who has suffered the injury. For this reason, it is often beneficial to speak to a personal injury lawyer to help you present your case and determine what may be fair compensation for your injuries.

 

As the weather becomes colder, it is important to be aware of the increased risks that result from the accumulation of snow and ice. In Canada, property owners and occupants have a responsibility to act reasonably to remove snow and ice to ensure that their property is not slippery or otherwise unsafe. The responsibility to remove snow and ice extends to the walkways in front of the occupier’s home.

What happens if someone falls?

If a person slips or trips on snow or ice that accumulated due to the owner/occupier’s negligence in failing to keep the property safe, he or she may sue for damages to recover the losses suffered. In order for a person who suffers a slip and fall on ice or snow to prove that the owner/occupier was negligent, he or she must show that the conduct of the owner/occupier fell below the accepted standard for clearing snow and ice. People walking on snowy or icy surfaces are also expected to take reasonable care by walking carefully and wearing reasonable footwear. If a person who suffers a fall was not acting reasonably, a Court may find that he or she was contributorily negligent and may reduce any damages awarded.

Removal of Snow or Ice?

Ensuring that your property is free of ice and snow can be challenging during the winter months, particularly when temperatures are changing quickly. However, an owner/occupier must only act reasonably in the circumstances to ensure that his or her property is safe, which means clearing snow and ice within a reasonable amount of time. Determining what is reasonable will depend on a number of factors, including typical weather conditions in the area and if the snow or ice was sudden or unexpected.

In addition to an owner/occupier risking liability for damages due to their negligence for failing to keep their property clear of snow or ice, they could also be exposed to a fine from the City/Municipality where the property is located.  Many cities have bylaws that prescribe specific time requirements for salting sidewalks and shovelling driveways or walkways. For example, in Nanaimo, British Columbia, owners/occupiers must remove snow and ice from walkways within 24 hours of the snow or ice accumulating.

Although a City may set certain time limit for snow or ice removal, a Court may still find an owner/occupier liable for damages if it concludes that the snow or ice should have reasonably been removed before the time period prescribed by the City. For this reason, it is important to be careful to diligently maintain your property and walkways during the winter months.