Sport activities and risk acceptanceBy Genevieve Forget Lawyer
Sport activities involve a certain level of risk that athletes (and enthusiasts) are expected to be aware of and accept.
However, this does not mean that a person who is injured while practising a sport has no recourse against a third party.
It is important to note that under article 1474 of the Civil Code of Québec, signing a release form does not preclude a victim from seeking legal recourse since an individual may not in any way exclude or limit his or her liability for injury caused to another.
When sport event organizers and businesses that offer sport activities commit a fault, they may be required to pay damages when an individual suffers an injury arising from the fault. In such cases, the signed release form has no effect.
Still, not all claims for damages are founded since they depend on the circumstances surrounding the accident. It must be determined whether the incident is a consequence of the occurrence of a risk inherent to the sport in which the victim was involved.
For example, a fall from a horse is a normal risk of horseback riding. However, if poor arena conditions or unusual hazards cause a rider to fall, the operator may be held liable.
When a ski centre operator puts an obstacle on a slope and does not adequately protect skiers or does not close a slope on which there is an unusual hazard, it may also be responsible.
Article 1477 of the Civil Code of Québec states: "The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the author of the injury."
A victim who demonstrates that the author of the injury exposed him/her to an abnormal risk may be awarded damages by proving that the defendant's behaviour was contrary to current standards.
The same rules apply when the defendant is the victim's partner in the sport activity. The Superior Court recently ruled on the liability of a doubles badminton partner (Zhang v. Deng, JE 2015-560). As the shuttle fell between the two players, the defendant swung his racquet and hit his partner, causing him to lose the use of his eye. The Court concluded that the injury was the result of a risk that is inherent to the sport of badminton and that the defendant had not behaved abnormally.
Whatever sports you take part in this summer, we advise you to be careful and hope that your safety is never compromised.
Enjoy the warmer months!