A Passion for the Mountains - The Alpine Club of Canada

Liability in the Backcountry
by John Savage
One
of the most dangerous
activities taken each day,
without much thought, is driving an
automobile. Driving an automobile is
more dangerous than backcountry skiing
or mountaineering, although life insurers
don’t ask whether we are drivers. That said,
as mountaineers or backcountry skiers we
must be vigilant about many aspects of
safety and this has recently been highlighted
by the deaths in British Columbia of 14
backcountry skiers by avalanche near
Revelstoke in January 2003.
So what are the obligations and liabilities
of guides and others when taking to the
backcountry? The cornerstone of liability
photo by John Derick
10 Alpine Club of Canada ● Gazette ● Summer 2003
and legal obligation is the duty of care
owed our legal neighbours, the standards
to which a guide or leader and organization
must adhere and that will be applied when
we join an Alpine Club of Canada (ACC)
adventure.
Contracts can protect and defi ne
liabilities – and provide a useful reminder of
the dangers inherent in the activities we love.
The ACC requires that participants in any
activity sign a waiver and release of liability.
This document draws the participant’s
attention to the dangers involved in these
activities and releases the Club, its staff,
leaders and guides from all liability whether
or not attributable to negligence. But what
are the legal consequences of signing a
waiver?
Waiver of Liability
The waiver of liability most guides and
organizations require recognizes that there
are inherent and sometimes unpredictable
dangers associated with mountaineering.
It is more than just a reminder, though,
as it serves to protect these individuals and
organizations who dedicate their lives to our
enjoyment of these challenges. If liability
were found, a single accident could easily
bankrupt an individual or an organization.
Without this protection, guiding as an
activity and organizations promoting or
facilitating mountaineering would be
severely curtailed.
In 1991 nine people were killed
by an avalanche while heli-skiing in
High Altitude Guide Training
This
summer, the International Federation for Mountain Guide Associations
(IFMGA) is running its fi rst specialist course in high altitude guiding for
professional mountain guides. The course will bring together some of the most experienced
high altitude mountain guides to provide professional training for other guides wishing to
lead parties at high altitude. The course is being held in Chamonix, France and is being
organized by Steve Bell, president of the IFMGA High Altitude Working Group.
“This course represents a very important step for the IFMGA as it will mean that the
IFMGA qualifi ed guides can add high altitude training to their professional qualifi cations.
Obviously, not all professional mountain guides will want to lead parties at high altitude,
but those who do now have a specialist training programme. This step by the IFMGA
will help to promote good standards and will mean, as in other mountain ranges, that the
IFMGA badge is the professional qualifi cation to look for,” Bell said.
Bell is also the chairman of the International Guiding Organisations 8000 (IGO8000)
and has helped to develop training opportunities for leaders and Sherpas in the
Himalayan countries. Such training is a vital part of developing appropriate standards for
commercial treks and expeditions and promoting sustainable development for mountain
communities.
the Bugaboos. Twelve skiers and their
guide were beginning the last run of the
afternoon. The skiing conditions were
spectacular. The skiers assembled at the base
of the last run named Holy Shit. They were
going to ski Bay Street, which is made up
of three shaped features converging about
midway down the slope into one large route
to the bottom. After the guide provided
instructions and commenced leading the
group down, a tidal wave of snow swept
everything before it. A textbook rescue
was underway within minutes. All nine
bodies were found within 45 minutes.
Miraculously the guide survived.
The guides and heli-skiing company
were sued by one of the unhappy families.
A waiver of liability had been signed by all
the skiers, some of whom were not native
English speakers. The courts have found
that there is no general requirement that a
party tendering a document for signature
take reasonable steps to apprise the signing
party of onerous terms or to ensure that
they are read and understood. 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 that such an obligation in law
arises. In this case the waiver had been
sent by mail, it was written in English and
the client was a foreign businessman who
had an opportunity to read it or have it
translated. By signing the waiver the Court
found he was prepared to be bound by the
contract, whether he had actually read and
understood it or not.
The waiver was not misleading. It stated
the dangers in frank terms. It warned of the
danger of avalanche. It expressly excluded
liability for negligence. The court found that
if there was negligence it was covered by the
waiver and therefore there was no liability:
Ocha v. Canadian Mountain Holidays Inc.
et. al. No. C922041, Vancouver Registry,
September 25, 1996.
Waivers of liability are important and can
be effective and have legal consequences. A
properly framed waiver can exclude liability
for negligence. But it is also remarkable
how ineffective waivers are if negligence is
demonstrated to a court.
Negligence: Duty & Standard of Care
Where there is a duty of care, what is the
standard of care required of a guide that will