Snowboarder paralyzed at Grouse Mountain wins right to sue for negligence
Lawyer says appeal court decision clarifies a messy part of B.C. law
In 2016, snowboarder Jason Apps attempted Grouse Mountain's XL jump in the North Vancouver terrain park.
Apps undershot it and landed upside down on the jump instead of on the downslope, rendering him quadriplegic.
The then 20-year-old Australian filed a claim of negligence against Grouse Mountain, which was dismissed after the resort said it was covered by its exclusion of liability notice, which is posted prominently — and the trial judge agreed.
But now, in a case that legal experts say may clarify an area of the law that has perplexed lawyers and adventurers alike, a B.C. Court of Appeal decision says Apps can proceed with his lawsuit against the resort where he suffered his injury.
The appeal raises a question Justice Christopher Grauer says has "troubled the courts ever since the industrial revolution" — whether a waiver that excludes a company's negligence is binding on a consumer?
An expert in liability law says the decision refines an area of the law that has always been murky.
"The court has clarified that businesses who rely on waivers need to adequately advise consumers ... of the risks before they pay for their ticket," says lawyer Darren Williams, who practises personal injury law.
In his lawsuit, Apps alleged Grouse Mountain was negligent in its design, construction, maintenance and inspection of the jump. Specifically, he maintains that there was no safety aspect to the design of the jump and that its design maximizes the risk of injury if a boarder loses their balance, or if snow conditions are slow.
The first issue
The appeal was broken down into two issues.
The first was whether Grouse Mountain had given reasonable notice that the waiver excluded liability for the company's own negligence before Apps bought his ticket, not after.
When Apps purchased his ticket at Grouse Mountain, he wasn't required to sign a waiver. The company has its waiver on a large sign hanging above the ticket booth with the words "Please Read" printed in large letters.
It included a section that says the resort isn't responsible for its own negligence, but both the trial judge and Grauer observed that it "was buried in a difficult-to-read section, among colons and semicolons, with no attempt to highlight it or emphasize it in any way."
A similar waiver was also found on the back of the ticket.
Grouse Mountain's terrain park also had two large signs warning of the risks and responsibilities.
Apps says he never read any of these signs, nor did he sign anything because it wasn't required.
The justice found the trial judge erred by including both the hard-to-read ticket booth waiver and easy-to-read terrain park waiver in the decision that Apps was given proper notice.
"Respectfully, this is wrong in law," the justice wrote, adding "only the steps Grouse Mountain took before and at the time of the issuance of the ticket can be taken into account in assessing whether Grouse Mountain took sufficient steps to give reasonable notice."
The second issue
At the time of the accident, Apps worked as a technician for a rental shop at Whistler ski resort.
Grouse Mountain argued and the trial judge agreed that "given his experience, Mr. Apps should have known of the waiver of liability for [Grouse] mountain's negligence."
The defence argued that because he signed an exclusion of liability waiver for Whistler Mountain when he bought a season pass, he should have had the knowledge that Grouse Mountain's waiver included its own liability exclusion.
But the Court of Appeal did not agree.
"Actual knowledge from Whistler was not proven, or even seriously alleged," Grauer wrote in his decision, adding "that assumption is not transferable to satisfy Grouse Mountain's obligation."
The decision does not prove negligence by Grouse Mountain, but allows Apps to pursue his suit.
Waivers and misconceptions
Lawyer Williams says there are two misconceptions when it comes to waivers.
Most people, he says, aren't aware that a waiver isn't binding if it isn't properly constructed and presented.
Secondly, he says most consumers believe waivers simply protect the company from being sued over the general risk of an activity and don't realize waivers can also protect a business from being sued for negligence if properly written and presented.