Kinesiology 4459A/B Lecture Notes - Lecture 11: Liability Waiver
20 Feb 2017
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Lecture 11
Karroll v. Silver Star (1988)
Appliaction for an Order
• Plaintiff claimed defendant negligent for not keeping hill clear of other skiers
• Defendant claimed that Plaintiff had signed a release (waiver) that precluded liability to the
defendants for their negligence
Principle of Contract Law
Where a party signs a document which he knows affects his legal rights, the party is bound by
the document in the absence of fraud or misrepresentation, even though the party may not have read
or understood the douet L’Estrage – 1934 British case).
**An exception has been added in that where a party seeking to enforce the document knew or
had reaso to ko of the other’s istake as to its ters, those ters should ot e efored
Tilden Rent-A-Car
-defendant should have known that plaintiff had no intention of consenting to the
onerous exclusion in question.
-there is no general requirement that a party tendering a document for signature
take reasonable steps to apprise the party signing of onerous terms or to ensure that he
reads and understands them. It is only where the circumstances are such that a reasonable
person should have known that the party signing was not consenting to the terms in
question that such an obligation arises. For to stay silent in the face of such knowledge is,
in effect, to misrepresent by omission.
Decision:
-release was consistent with purpose of contract
-release as short, eas to read ad headed i apital letters RELEASE AND INDEMNITY –
PLEASE READ CAREFULLY
-Release was not unusual – was standard aspect of this type of contract
-Vernon ski club covered by release as they were agent of Silver Star (and met four part test set
out by court).
Bringing waiver (release) to attention of person signing the waiver applies only in special circumstances
Note that the S.C.C. in Crocker said that a properly written waiver can be an absolute bar against
liability for negligence
Isildar v Rideau Diving Supply 2008 ON SC
-Plaintiff died in scuba diving accident; wife, son brought action; court held – three stage analysis is
required to determine whether signed release of liability is valid:
1. Is the release valid in the sense that the plaintiff knew what he was signing?
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Document Summary
Appliaction for an order: plaintiff claimed defendant negligent for not keeping hill clear of other skiers, defendant claimed that plaintiff had signed a release (waiver) that precluded liability to the defendants for their negligence. **an exception has been added in that where a party seeking to enforce the document knew or. Defendant should have known that plaintiff had no intention of consenting to the. There is no general requirement that a party tendering a document for signature. Tilden rent-a-car onerous exclusion in question. take reasonable steps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question that such an obligation arises. For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission.
